Spalding vs. Congdon, 18 Wend. 286

By the Court, Bronson, J. [544] It is objected that more than two terms have elapsed not only since the nonsuit, but since the death of the. defendant; and consequently that the statute does not provide for ‘this case. (2 R. S. 387, § 4.) There is another reason why the statute does not extend to this case. It only provides for entering judgment after a verdict or plea of confession ; and does not include a nonsuit. But the statute has nothing to do with the matter. Here the party has been tied up by a bill of exceptions and a motion for a new trial, and died while the matter was subjudice.

In such cases, whether after verdict or non-suit—on demurrer or writ of error—and without regard to the lapse of time, the court will, upon common law principles, allow the judgment to be entered up as of a term when the party was alive. (Rightmyre v. Durham, 12 Wendell, 245. 2 Tidd, 965, and cases cited. 7 Bing. 237.) The case of Seymour v. Deyo, (5 Cowen, 289,) decides nothing against this rule of practice. In that case the plaintiff had been nonsuited, and after his death the court refused to hear a motion to set it aside, because nothing but the question of costs was involved in the motion.

It would have' been useless to grant a new trial, for the suit had- already abated by the death of the plaintiff. In this ease there has been no laches since the decision of the circuit judge, and the motion must be granted. Motion granted.