2 Blackf. 23

Meek v. Ruffner.

To an action of assumpsit by two plaintiffs, the defendant pleaded in abatemenfthat one of the plaintiffs had died since the commencement of the suit. Held, tha-t, at common law, the plea was good.

The statute of 1825 changed this law, and authorised the suit to proceed in the name of the survivor, if the cause of action survived, upon a suggestion on record of the other’s death.

ERROR to tbe Jefferson Circuit Court.

Thursday, November 9

Blackford, J.

Assumpsit by Jacob Baymiller and Joseph Ruffner, against John Meek and William H. Hopkinss Suggestion entered of record, that Hopkins was no inhabitant, as returned by tbe sheriff. i Plea in abatement by Meek, ,of tbe death of Baymiller, one of the plaintiffs, since the commencement of tbe suit. Ruffner suggested of record tbe death of Baymiller; and, upon his motion, the defendant was ruled to plead. Plea, non assumpsit. -Verdict and judgment for the plaintiff.

By the common law,if'oneof several plaintiffs died before final judgment, the suit was thereby abated. Ham. on Parties, 225; Tbe statute of 8 & 9 Will. 3. changed that law, and authorised the suit to proceed in the name of the survivor, if the .cause of action survived,upon a suggestion on record uf the other’s death. Ibid. This statute,- however, wasneverin force here. We have *24now a similar statute; Stat. 1825, p. 50; but the judgment in this case was prior to the existence of that statute. This cause, thcrefore, must be governed by the common law, and the defendant had a right to plead the death of Baymiller in abatement. The Court, by disregarding that plea and ruling the defendant to plead again, committed an error; and the judgment must be reversed (1).

JVelson, for’" the plaintiff.

Douglass, for the defendant.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the rule to plead- inclusive are set aside, with costs. Cause remanded, &c.

Meek v. Ruffner
2 Blackf. 23

Case Details

Name
Meek v. Ruffner
Decision Date
Nov 9, 1826
Citations

2 Blackf. 23

Jurisdiction
Indiana

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