delivered the opinion of the court.
During the trial of this cause, after the evidence had been gone through, and the plaintiffs’counsel had begun his argument, the defendant suggested the death of the plaintiff Babcock, moved the court that the proceedings be stopped, and the cause continued, to give an opportunity to the representatives of the deceased to come in and make themselves parties. The motion was supported by an affidavit, stating that the death of this plaintiff had hot come to the knowledge of the defendant or his attorney, until the testimony was closed. The motion was opposed by the counsel for the plaintiffs, and overruled by the court.
The district judge/ in our opinion, erred. Three parties are necessary to the inception and prosecution of a suit, judex actor et reus. In the present case one of the plaintiffs has ceased to exist, ánd the two others are without authority to represent him: the defendants, if judgment was given against them in favor of the surviving plaintiffs, would, notwithstanding, remain liable to the action of the representatives of the deceased. Their rights of the latter cannot be acted on until they become parties to the suit. The case must be remanded, to afford the opportunity of this being done.
It 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 cost of this appeal.