170 APPEALS AND ERRORS. [AET. 5

1904. art. 5, sec. 77. 1888, art. 5, sec. 75. 1860, art. 2, sec. 11.
1806, ch. 90, sec. 11.

77. When a case is under rule argument in the court of appeals, and
a party shall die, having an attorney in court, the court of appeals shall
give judgment to have the same effect as if the party were alive; pro-
vided, the heir, executor or other proper person may, if he thinks proper,
suggest the death and become a party in the place of the person dying.
This section applies to the death of a party whilst the case is under
rule argument, and not to a case where the plaintiff dies before the appeal
is prayed. Goldschmid v. Meline, 86 Md. 372; Harryman v. Harryman,
49 Md. 69. See also, Thomas v. Thomas, 57 Md. 506; Carroll v. Bowie, 7
Gill, 38.

As all cases now stand for argument in the court of appeals at the first
term, there is no longer necessity for a rule argument, and this section is
construed accordingly. This section also applies if the party dies after
argument and before decision. Moore v. Taylor, 81 Md. 649.
This section applied. Coombs 17. Jordan, 3 Bl. 328.
This section held to have no application. Harryman v. Harryman, 49
Md. 67; Owings v. Owings, 3 G. & J. 1.

This section, and sections 75 and 76, should be construed in connection
with each other. Carroll v. Bowie, 7 Gill, 40.

The law was in accordance with this section prior to its adoption. Lynch
v. Colegate, 2 H. & J. 34, and note (a).

Ibid. sec. 78. 1888, art. 5, sec. 76. 1862, ch. 167.

78. In any cause in which one or more appellants or appellees, plain-
tiffs or defendants in error shall have died, or shall die after appeal taken,
or writ of error sued out, and before final judgment upon such appeal
or writ of error in the court of appeals, and the executor of such party,
or his administrator, shall have failed or shall fail to appear in the
court of appeals, and to suggest such death, and judgment has been or
shall be given, as if the said party so deceased was alive, then and in
such event it shall and may be lawful for any surviving party to such
appeal or writ of error so adjudged as aforesaid, to suggest in the court
of appeals the death of the said party to the said appeal or writ of error,
prior to the entering up of the judgment in the said court, and to show
to the court of appeals who is the executor or administrator of the
deceased party; and in that event it shall be competent for the said
court of appeals to order execution to issue in the said cause to the same
extent and in the same manner as if the said executor or administrator
had suggested the death of the person so dying as aforesaid, and had
appeared to prosecute or defend said writ of error or appeal.

This section refers to cases where parties die after an appeal has been
taken, but before final Judgment in the court of appeals, and not to a case
where the plaintiff dies before the appeal is prayed Goldschmid v. Meline,
86 Md. 372. Harryman v. Harryman, 49 Md. 69.

Ibid. sec. 79. 1898, ch. 29. sec. 76 A.

79. In any case in which the party plaintiff or party defendant shall
have died, either before or after judgment or decree, the heir, executor,
administrator or other proper person may, if he thinks proper, suggest
the death and become a party in the place of such deceased party, and
pray an appeal or writ of error, and appear to such appeal or writ of