
    BABCOCK, GARDINER & CO. vs. WELLS ET AL.
    "WESTERN DlST.
    
      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where it was suggested, and offered to be proved, before the trial had closed, that one of the plaintiffs was dead, and that the cause be continued for the representatives of the deceased plaintiff to be made parties, judgment will be reversed, and the case remanded for this purpose.
    This was an action by the plaintiffs, as a commercial firm, and holders of a promissory note, made payable to the order of J. M. Wells and others, and endorsed by him and them, to render them liable on their endorsement.
    The defendants severally pleaded a general denial. This case is similar to B. G. & Co. vs. Williams et al., ante., 394.
    The notary’s certificate was produced in evidence, to show the demand of payment, protest, and notice to the endorsers.
    After the trial had progressed near its close, the defendants’ counsel suggested the death of Henry Babcock, one of the plaintiffs, and offered the testimony of a witness to prove the fact; and moved the court to continue the cause, that the proper steps might be taken to bring in the legal representatives of the deceased plaintiff, which was opposed by the plaintiffs’ counsel, and the motion overruled by the court, the latter being of opinion the suit could be carried on by the surviving partners, or their attorneys, who were still parties, notwithstanding the death of one of them.
    Judgment was rendered in favor of the plaintiffs, and the defendants appealed.
    
      Winn and Spaulding, for the plaintiffs.
    
      Dunbar, contra.
    
    
      Where it was suggested, and offered to he theVetriaibeh°ad closed, that one of the plaintiffs was dead, ■ and oontinuedUS?for the representatives of the deceased plaintiff ties,6 'judgment and tim'cascTrei manded for this pm pose.
   Martin, /.,

delivered the opinion of the court.

jn this case, during the trial, the death of one of the plaintiffs, Henry Babcock, was suggested by the defendants’ counsel, and offered to be supported by the testimony of wit- ’ . 11 . nesses. A motion was made to continue the cause, until the proper steps were taken for the representatives to become v ,.. ,, , , „ , , parties, which was opposed by the counsel for the plaintiffs, an<* overruled by the court, and the cause proceeded in, to final judgment. This case cannot be distinguished from f & . & that just decided between the same plaintiffs and Williams an(^ others. The same judgment is to be tendered in this as jn that case,

R is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, with directions to the court below not to proceed to trial, until the representatives of the deceased plaintiff be parties to this suit, the appellees paying the costs of this appeal.  