
    Jedediah Holmes versus Charles Holmes et al.
    
    The demandant in a writ of right having declared on his own seisin within forty years, was allowed to amend by making it thirty years.
    Such demandant having suggested on the record the death of one of the tenants since the last continuance, was permitted to proceed in the action against the surviving tenants.
    This was a writ of right. The demandant having dec.ared on his own seisin within forty years, moved, at the last term, to amend by striking out forty and inserting thirty; but Putnam J. disallowed the motion. And now
    
      L. Shaw, for the demandant, suggested the death of one of the tenants, since the action was entered in this Court.
    The questions were, first, whether the amendment could be allowed, and secondly, whether the action could be prosecuted against the surviving tenants.
    
      Eddy, for the tenants,
    cited to the first point, Lilburne v. Heron, Cro. Jac. 292 ; Charlwood v. Morgan, 4 Bos. & Pul. 66 ; Baylis v. Manning, ibid. 233 ; Hull v. Blake, 4 Taunt. 572 ; Puleston v. Warburton, 1 Salk. 48 ; Driver v. Scrulton, Barnes, (3d ed.) 17 ; Haynes v. Morgan, 3 Mass. R. 210 ; and to the second point, The King v. Dryden, Cro. Car. 574, 583, 589 ; Com. Dig. Abatement, H 35 ; Vin. Abr. Abate ment, M. a.
    
    
      Shaw, for the demandant,
    did not deny that in England amendments were not allowed in writs of right, and that there was almost the same strictness in writs of entry, but observed that the power of this Court to grant amendments was founded on statute, and not on the common law ; Haynes v. Morgan, ubi supra ; that we had departed from the English law in regard to amending writs of entry, and there was no reason for adhering to it with regard to writs of right. In England a writ of right was encumbered with so many forms, that it was the design of the courts to discountenance it; but it was otherwise here, as we use the action.
    On the second point he remarked, that this action being here like a writ of entry, the same law should be adopted ; and he cited Thomas v. Smith, 2 Mass. R. 480, where it is said, “ In a real action against the tenants as joint disseisors, on the death of one of the tenants, the demandant may prosecute against the survivor, for the same seisin and disseisin are in issue between the parties on record.” He referred also to Vin. Abr. Abatement, L. a. and M. a. ; Bac. Abr. Abatement, F, (Am. ed. vol. 1. p. 15.)
   W. Baylies,

in reply, cited Oxnard v. Proprietors of Kennebeck Purchase, 10 Mass. R. 179, and Cutts v. Haskins, 11 Mass. R. 56, to show that a writ of right is abated by the death' of one of the demandants, and said, that if it was necessary at first to bring all the tenants of the land into Court, the same necessity continued to exist. The land of the deceased tenant in the present case does not survive to the other tenants. In the passage quoted from Thomas v. Smith, there was a joint seisin by disseisin. He cited also, 1 Chit. Pl. 56.

In the course of the argument Wilde J. remarked, that amendments in writs of right had frequently been allowed ; and at the subsequent May term, at Plymouth, the motion to amend was granted, and the demandant permitted to prosecute the action against the surviving tenants.  