
    *Drago v. Stead and Others.
    May, 1824.
    Writ of Right — Death of One Demandant — Effect— Abatement.' — The death of one of the demandants in a writ of right before trial and judgment,' abates the whole writ: audit is of no Importance whether the deceased demandant left a child, or not.
    This was a writ of right brought in the County Court of Monongalia, by Stead’s heirs against Drago. The County Court gave judgment for Stead’s heirs, and Drago appealed to the Superior Court of Law for the same county. The judgment was reversed, and the cause'retained for trial, by consent, in the Superior Court. In that Court, it was suggested that Susanna Fry-back, one of the demandants, had died since the institution of the suit; but, the Court decided, that the writ should be abated as to Susanna, and proceeded to try the cause, and rendered judgment for the remaining demandants. Drago appealed to this Court.
    Leigh, for the appellant.
    Tucker, for the appellees.
    May 28.
    
      
      Writ of Right — Death of Demandant — Effect—Abatement. — 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. Por intrinsic matter, the court will, ex officio, abate the suit. Extrinsic matter is such as either defacto abates the suit, or such as renders It abateable. Of the first sort, is the death of the demandants, or one of 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. Carter v. Carr, [ Gilm. 145 ] and Drago v. Stead [2 Hand. 454], 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, hut only falsifies and renders it abateable 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.” See generally, mono-graphic note on "Abatement, Pleas in,” appended to Warren v. Saunders, 27 Gratt. 259.
    
   The PRESIDENT,

delivered the opinion of the Court.

It is not material whether, in this case, Susanna Fryback died leaving a child, or not, as was at first supposed. It sufficiently appears that she was dead before the trial, and rendition of the judgment of the County Court; and as the law then was, upon the authority of the cases cited in 3 Saund. 72, and by this Court, in 'the case of Carter v. Carr, Gilm. Rep. 145, by her death, the writ abated as to all the de-mandants, and should have been so abated by the County Court. The judgment of the Superior Court is also erroneous, in not rendering such judgment as the *County Court ought to have rendered in this particular. Both judgments are reversed, and judgment is to be entered that the whole writ abate.  