A deadly one, that is…
There is little that warms the cockles of a genealogist’s heart more than a vital record or, at a time when there were no vital records, a record that will take the place of a vital record.
Take, for example, the record of a case decided in March 1805, in the Hamilton District of Tennessee. There, the Tennessee Superior Court was called upon to consider the status of the case of Lewis and Lenoir v. Outlaw et al.1
It was a case in equity in which the lawyer for the plaintiffs wanted the case moved forward to trial, and the lawyer for one of the defendants objected “on account of the death of one of the defendants, against whose representatives, it had not been properly revived.”2 In other words, the defense attorney argued, the heirs of the original defendant hadn’t been properly substituted for the deceased man in the case.
There was a lot of discussion in the court’s opinion about how and when and using what technical form the case could be continued, but no disagreement anywhere as to what was needed to notify the court that one of the parties to the case had died.
It was called a suggestion of death.3
Now we all know that a suggestion, in ordinary day-to-day parlance, is less than stating something as a fact. It’s generally understood to be something offered as an hypothesis, or a possibility.4
In the peculiar language of the law, however, a suggestion is much more. It’s a “statement, formally entered on the record, of some fact or circumstance which will materially affect the further proceedings in the cause, or which is necessary to be brought to the knowledge of the court in order to its right disposition of the action, but which, for some reason, cannot be pleaded. Thus, if one of the parties dies after issue and before trial, his death may be suggested on the record.”5
“In its literal sense this word signifies to inform, to insinuate, to instruct, to cause to be remembered, to counsel. In practice it is used to convey the idea of information; as, the defendant suggests the death of one of the plaintiffs.”6
So you’ll see the requirement for a suggestion of death included in the legal rules of many courts that followed the English common law:
• In England itself, a case didn’t end on the death of a party but “such death being suggested on the record the action shall proceed … against the surviving defendant or defendants.”7
• In Canada, whenever a party to an appeal died, “a suggestion may be made of such death…”8
• In New Jersey, a suggestion could be made of the death of either a plaintiff or a defendant.9
• In Missouri, actions didn’t automatically end with a death as long as the record contained a suggestion of such death.10
And for the genealogist… that suggestion of death is the functional equivalent of a death certificate. It may not give an exact date and place of death, but it will sure fix the outer limits of the time within which the death occurred — often the best record that may be found with respect to one of our target individuals.
SOURCES
- Lewis and Lenoir v. Outlaw et al., 1 Tenn. 139 (Tenn. Sup. 1805); digital images, Google Books (http://books.google.com : accessed 17 Aug 2015). ↩
- Ibid. ↩
- See ibid., at 144. ↩
- See Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 17 Aug 2015), “suggestion” and “suggest.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1135, “suggestion.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 17 Aug 2015), “suggestion.” ↩
- Joseph Chitty, A Collection of Statutes of Practical Utility (London : William Benning, 1828), 2; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015). ↩
- §§29-32, 20 Vict. c.5 (1857), in Statutes of the Province of Canada (Toronto: Derbishire & Desbarats, 1857), 16; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015). ↩
- §§29-35, “An Act concerning the action of ejectment,” in Revision of the Statutes of New Jersey … 1871 (Trenton : John L. Murphy, printer, 1877), 329-330; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015). ↩
- §§3663-3664, Article VIII, “Of the Abatement of Suits and their Revival,” in The Revised Statutes of Missouri… 1879 (Jefferson City: State Printers, 1879), 1: 624; digital images, Google Books (http://books.google.com : accessed 17 Aug 2015). ↩
Gee, I wish I could find a few more suggestions like that. It would help resolve some of my cases and get me to the final genealogical verdict. Alas, no one wants to be in court anyway.
Whether your ancestors wanted to be in court or not, they may have been dragged in by neighbors or others. It’s sure worth checking…
Even better is finding a case that gives the maiden name of a woman previously known as Mary. Found and confirmed because I googled her children’s names. All were mentioned because she had passed. Her brother died – he was an alcolholic and had signed his property over to the bar keeper in a stupor one night – The court and family sued and the barkeep lost- and left his all to her and her sisters – so I now have a bunch of ladies with no parents but I do have a family. Also in New Jersey.
That’s a great find, Lil! Good for you!
I was able to determine my gr-gr-gr grandfather died between June 6 and September 5, 1831, from information found in the 1825-1837 Calhoun County (IL) Commissioner’s Court Record.
WEDNESDAY, MARCH 9, 1831
Ordered that James Levin Sheriff call on Joshua Twichell and demand a certain stag or ox taken up by him as an estray in April or May 1829, receive him, sell him, and pay the proceeds into the county treasury. Report to this court at the June term of his proceedings.
MONDAY, JUNE 6, 1831
The sheriff made his return on the back of a certified order of this court directing him to call on Joshua Twichell, demand & receive a certain estray stagg, or ox, etc. entered of record March 9, 1831 as follows “I called on the within named Joshua Twichell for the stag or ox herein mentioned, and the said Twichell answered me, that he made use of the same animal. March 16th AD 1831. Signed James Levin Sheriff
Ordered that the Clerk of this court issue a summons directed to the sheriff, commanding the said Joshua Twichell to attend at the next September term of this court and show cause, if any he have, why judgment should not be rendered against him for the sum of eight dollars & fifty cents, the amount of the appraised value of said stag or ox and the costs of suit.
SEPTEMBER 5, 1831
James Levin Sheriff returned into court a summons as served on Joshua Twichell conformable to an order of this court at the June term, the death of the said
defendant having been suggested. Ordered that this cause be continued until the appointment of Administrators on said defendants estate.
I thought the word “suggested” was a bit odd, but I assumed Joshua was dead [as opposed to hiding in the woods] since there was mention of his estate.
I have also assumed the phrase “he made use of the…animal” means the animal was killed and consumed.
Perfect use of the records, and yes — it does sound awfully strange for death to be “suggested,” doesn’t it? 🙂