
    Carter v. Carr.
    December, 1820.
    Writ of Right — Abatement.—The death of one of the demandants in a writ of right before trial, abates the whole writ.
    This was a writ of right brought by a great number of demandants, consisting of all the children of John Carter of Sudley, among whom were Elizabeth Tidball; all the children of Robert Carter who was a son of John ; and the children of Edward, and the grantees and devisees of Landon Carter, against Joseph Carr the tenant.
    The mise was joined on the mere right: and a Jury was sworn in conformity with the statute to try the mise.
    The tenant’s counsel moved the court to instruct the Jury, that the demandants could not in law recover on the title produced. And the court did instruct the Jury, that the evidence of the demandants, if it proved any title, proved it belonged to some of them as tenants in common with others of the demandants, and that they could not recover in this joint action.
    The Jury under the instruction of the court found that *the tenant had more mere right to hold, than the de-mandant to demand, &c.
    The court gave judgment that the tenant hold the tenement to him and his heirs, free, quit and discharged of the said de-mandants and their heirs, forever.
    On the day after judgment was given, but-before signing the order, the death of Elizabeth Tidball one of the demandants, was suggested to have happened before the commencement of the term. The fact being-admitted, the demandants’ counsel insisted the whole writ should abate. The court decided the writ should abate as to the deceased demandant only, and judgment was entered against the survivors and their heirs, but not against Elizabeth Tidball. The demandants’ counsel excepted and appealed.
    The cause was argued by Stanard, Tucker and Gilmer for the appellants, and by Wickham for the appellee.
    For the appellants it was contended,
    That tenancy in common, at common law was pleadable only in abatement, and could not be pleaded in bar or given in evidence on the general issue. For whatever defeats, the particular action but does not conclude-the party for ever, should be pleaded in abatement, () Some things are pleadable in bar or abatement, as in replevin “property in a stranger” or in any action “outlawry for felony” or “alien enemy.” But it is a rule without exception, that nothing can be pleaded in bar which goes to the-capacity in which plaintiffs sue, when the defect pleaded is remediable by another writ.
    Tenancy in common has every badge of a plea in abatement: it does not deny the plaintiff’s cause of action but objects to the form of it: it does not negative his right, but asserts it: it is a defect remediable by another writ. The law therefore corn-pels the defendant to plead *it in-abatement, and if he go to trial without doing so, he waives the objection.()
    The writ of right forms no exception to-these principles. The dictum in Brook’s abridgment, 48, that nothing can be specially pleaded in writs of right, but collateral warranty, means nothing, in bar.
    The evil to be remedied by the statute() was, that the tenant by views, vouchers, essoins, and imparlances, protracted the cause. The act took away all these, and allowed no excuse to the tenant but non summons: and enacted, that if the tenant after one imparlance did not plead non-tenure, or in abatement, and then if the plea was overruled, the mise should be joined on the mere right. He is then, to plead matter of abatement, in abatement. But the construction contended for on the other side dispenses with the plea altogether: if it be evidence on the mise, why require it to be pleaded? If evidence without being pleaded, why not after it is pleaded and overruled? Besides, a plea in abatement must be sworn to; here there is no oath, no notice, and that on a trial of the mere right, without regard to technical formalities.
    Next it was enacted, that any thing may be given in evidence on the mise joined upon the mere right, which might have been specially pleaded. The object of the statute was the simplification of the remedy, and it is imperative that all matters of defence shall be given in evidence and not pleaded: but it means as Brook meant, matter in bar; and matter in abatement is not available at all after the mise is joined.
    Green v. Eiter() was decided on this ground. And Hyers v. Green() so confidently relied on by the other side, is not in conflict with this doctrine. That was non-tenure of the whole, which was always a good plea in bar() but tenancy in common never was a plea in bar. ’■'Again, in Hyers v. Green, the verdict negatived the plea of nontenure, here the verdict affirms the tenancy in common.
    But supposing the statute allow matter of abatement to be given in evidence on the mise joined upon the right, it surely does not require the judgment to be in bar. This verdict is found under instruction of the court, and is no more than a special verdict finding the fact, that the defendants are tenants in common. The judgment therefore that the tenants hold &c. is erroneous, for it should be that the writ be quashed, ()
    But Mrs. Tidball’s death abated the whole writ. This is clear, () So in real actions. ()
    It is said there is no reason for abating the whole writ, because survivors can at least defend themselves. That is not the criterion. Can possession be given according to the writ? where several persons sue jointly for divisible property', they must recover all, or none, or some part. If they recover none, the death of one of the plaintiffs makes no difference; but if the survivors recover all, what becomes of the part of the deceased? if they recover part, what part? for the separate parts of each can be assigned only by partition. But the case is too clear, on the death of one of the de-mandants to be pressed.
    
      
      Writ of Right — Abatement.—The death of one of the demandants in a writ of right before trial and judgment abates the whole writ; and it is of no importance whether the deceased demandant left a child or not. Drago v. Stead, 3 Rand. 454, on the authority of the principal case.
      In Garrard v. Henry, 6 Rand. 112, it is said: Matter in abatement is either intrinsic, appearing in the writ, declaration, replication, or some pleading of the plaintiff: or it is extrinsic. For intrinsic matter, the court will, ex officio, abate the suit. Extrinsic matter is such as either de facto abates the suit, or such as renders it abatable. Of the first sort, is the death of the demandant, or one of the several demandants in a writ of right, pending the action; and at whatever stage of the suit, this fact comes to the knowledge of the court, they will abate the suit, darter ¶. Carr, and Drago v. Stead, in our books are cases of this kind. But, the death of a party before the commencement of a suit, is a fact which does not, of itself, abate the writ, but only falsifies and renders it abatable by plea, put in, in due time, and proper form. If the defendant, passing by the fact of such death, pleads generally, or as here, joins the mise on the mere right, he thereby acknowledges that the party is in life, and forever precludes himself from taking advantage of his death, in any manner or form.”
    
    
      
      (a) Ba. at). “Abatement” (N.) 4 T. Rep. 227; 1 Chit. PI. 434.
    
    
      
      (b) 1 Ba. ab. 19.
    
    
      
      (c)-1 Rev. 496.
    
    
      
      (cl) 8 Cran. 228.
    
    
      
      (e) 2 Call 555.
    
    
      
      (0 1 Ba. ab. 21.
    
    
      
      (g) Co. Lit. 863, a; Shaw v. Clements; Hyers v. wood.
    
    
      
      (h) 2 Saund. 73, i; 1 Chit. 55.
    
    
      
      (i) 1 Reeves, 462, 3.
    
   ROANE, Judge.

The court is of opinion the judgment of the Superior court is erroneous, in this, that it only abates 1he suit as to Elizabeth Tidball one of the de-mandants, when in consequence of her death before the trial, it ought to have been abated as to them all. *The judgment is therefore reversed with costs, and the court is of opinion that the writ aforesaid should be abated. 
      
       A is l'J nr, aoseni,.
     