
    [Chambersburg,
    October 18, 1824.]
    STROOP and Wife against SWARTS.
    IN ERROR.
    The court below, having arrested a judgment obtained by husband and wife, for slander of the wife, for which they sued out a writ of error, this court abated the writ, because it appeared that the wife had since died.
    This was an action brought by Jacob Stroop, and Mary his wife, in the Court of Common Pleas of Perry county, to recover damages for slanderous words, alleged to have been spoken of the wife by Smarts, the defendant in error. The plaintiffs had a verdict in the court below for one hundred and seventy-five dollars, but the court, on motion of the defendant’s counsel, arrested the judgment, for which reason the present writ of error was sued out. On the case being called up for argument in this court, Penrose, for the defendant in error,' alleged and proved, that before errors were assigned, Mary Stroop, one of the plaintiffs in error, was dead. He therefore moved, that the writ of error be abated, and cited, Boas v. Hiester, 3 Serg. & Ramie, 271. 1 Chitty, Pl. 61.
    
      Wadsmorth and Metzger, contra, referred to 1 Binn. 172.
   Per Curiam.

In this case, there was no judgment for the plaintiffs in the court below, — the judgment was arrested. Now, this court could not give judgment for the husband alone, even if they should think, (which they do not) that the judgment ought not to have been arrested; because the wife, who was the meritorious cause, is dead, and the cause of action does not survive. If the wife had died, after the judgment had been given for her husband and her, it would have been different. The judgment would then have survived to the husband.

Writ of error abated..  