
    Anna Cutts and Others versus John Haskins.
    The death of one of several demandants in a real action pending the suit abates the writ; and the fact being suggested on the record by the surviving demand-ants, the tenant has no occasion to plead it; but in such case the tenant is not entitled to costs.
    The verdict in this case having been set aside,  the cause was again tried, at the last November term in this county, before Parker, J., and a verdict again returned for the tenant, subject to the opinion of the Court upon the evidence reported by the judge; and subject also to a right reserved by the tenant to show that the writ was abated by the death of Anna Cutts, one of the demandants in this writ of right, since the commencement of the suit, which fact had been seasonably suggested on the record by the counsel for the demandants.
    And now at this term, Gorham, of counsel for the tenant, moved the Court that the writ should abate; and he cited the case of Oxnard Sf Al. vs. Proprietors of the Kennebeck Purchase. 
       At common law, the death of one demandant abates the writ, although after summons and severance.  And where matter appears on record, which shows the writ abated, as here, it need not be pleaded.  Indeed, it were an absurdity to plead a fact in abatement which is already on the record at the suggestion of the demandants themselves.
    
      
       Vide vol. ix. p. 547.
    
    
      
      
         10 Mass. Rep. 179.
    
    
      
      
        Com. Dig., Abatement, H, 33. —10 Co. 134.
    
    
      
      
        Com. Dig., Abatement, L, 4. — 1 Mod. Rep. 4, 5.
    
   Per Curiam.

The writ is abated by the death suggested.

Tne tenant then moved for costs.

The motion was overruled, on the ground that the abatement was caused by the act of God. 
      
      
         [By the statute of 1826, c. 70, it is provided that, in case of the death, marriage, or other disability of any demandant in any real action, or in any process for partition of lands, the suit or process shall not abate; but the heir, or such other persons as would, in case the action or process were abated, be entitled to commence the like action or process, either alone, or jointly with the former demandant or petitioner, may, on motion, be permitted to prosecute the suit accordingly, alone or jointly with others, as the case may require. And if the heirs, &e., do not come in to pros ecute, the other demandants may proceed for their portions; and if any tenant die after the commencement of the suit, any real action may be prosecuted against surviving tenants for so much as they claim.]
     