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