Middlesex—Charlestown. April Term 1773.
Prescott et al plaintiffs vs. Priest.
Trespass quare clausum fregit—Defendant pleads in abatement that one of the plaintiffs died since the last continuance. Demurer and joinder.
Mr. Adams in support of the plea cited Gilb. prac. Com. pleas. 242. 2482
—Hardwicke's cases 395.3
Dana for plaintiff—cites 8 Mod. 115. 116.4
—Bac. abr. Abatement. F. p. 7.5
Oliver, C.J., Hutchinson, Ropes and Cushing, J. The action survives; and by 8 & 9 W. 3., Cap. 11. “where the action survives, and one of the plaintiffs dies—it shall go on and not abate.”6
Respondeas ouster awarded unâ voce.7
5. 1 Bacon, Abridgment
7: “(F) Of Abatement by the Death of the Parties
. The general Rule to be observed in this Case is, that where the Death of any Party happens, and yet the Plea is in the same Condition as if such Party were living, there such Death makes no Alteration or Abatement of the Writ. A difference has been held with Respect to Real Actions, where there are several Plaintiffs, and there is Summons and Severance (as there is in most Real Actions) that in these the Death of one of the Parties abates the Writ, but not in Personal or Mix'd Actions, where one intire Thing is to be recovered.” The word “Severance” refers to the right of several defendants to answer severally. See Stephen, Pleading
6. 8 & 9 Will. 3, c. 11, §7 (1697): “And be it ... enacted ... That if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.”
7. That is, the court unanimously ruled that defendant would file a new answer, or “answer over.”