24 rmnmun BEPORTEB.
to do for him. This is not intended to imply that what was done
without jurisdiction over his person could be made binding upon him
by any ratification after the judgment. Jurisdiction over the person
at the time of the judgment is necessary to its validity as a personal
judgment. A defendant might probably compensate any one who
had, without his knowledge, undertaken the defense of a suit against
him which might bind his property and failed, and not subject him·
self to the consequences of making the judgment bind him personally,
when before it would only bind his property. The issue joined upon
the replication to the fifth plea is found for the defendant.
The testimony in the case was closed on February 5th, except that
there was reserved to the plaintiff the privilege of having the testi-
mony of a witness who was sick and unable to attend, taken by the
court at the residence of the witness on the next day, to the same effect
in all respects, by consent of the parties, as if taken in court on that
day. The death of the defendant was suggested on the opening of I
court the next day as having taken place after adjournment on the
evening before. The? plaintiff objected to anything further being
. done, but waived the taking of the testimony of that witness. The
whole case was in the hands of the court during the life of the defend-
ant. The arguments of counsel are in aid of its consideration.
In Brcas v. Merserecu, 18 Wend. 653, a verdict was taken after
the death of the party. In Trelawny v. Bishop of Winchester, 1 Burr. t
219, judgment was rendered as of a time prior to the death, which oc-
curred while the case was pending for argument. This was a com-
mon proceeding in the English courts from early times. Bac. Abr.
“Abatement," F. And it is said by Mnrchw, J., in Springfield v. Wor-
cester, 2 Gush. 52, to be the common course when an action which
would fail by the death of either party before judgment is continued
for argument or advisement, whether there has been a verdict or de-
murrer or agreed statement of facts, and oneof the parties afterwards ,
dies, to enter judgment as of a former term. This is all in the same
term, and it seems proper that the case should be argued, considered,
and judgment rendered as of the day in the term when the last of the
evidence was submitted.
Judgment for defendant as of February 5th.