
    Lovell v. Arnold.
    February, 1830.
    (Absent Coalter, J.)
    Writ of Right — Abatement—Revival—Case at Bar, —Writ of right abates by death of tenant in 1812, and the abatement is entered of record: sci. fa. sued, out by demandant in 1820, to revive the suit against heirs of tenant: Held, the abatement was absolute, and suit could not be revived under provision of statute of 1819,1 Rev. Code, ch. 128, § 37, that provision being prospective.
    This was a writ of right brought by Elisha Arnold against Markham Lovell in his lifetime, for sixty acres <of land in the county of Franklin. The case was before this court in 1811, when the court reversed a judgment that had been recovered for the demandant, and remanded the cause to the circuit court of Franklin, for a new trial. See Lovell v. Arnold, 2 Munf. 167. Afterwards, in the circuit court at May term 1812, before the new trial was had, an entry was made that the suit abate by the death of the tenant. No further proceeding was attempted till April 1820, when the demandant sued out a scire facias against the heirs of the deceased tenant, to revive the suit, under" the provision of the statute enacted at the revisal of 1819, 1 Rev. Code, *ch. 128, g 37, _p. 496, 7. The tenant’s heirs named in the scire facias, were ten in number: the process was served on only two of them, William and John Lovell: and John only appearing, the cause was at last tried, upon the original pleadings, as between the demandant and that heir alone. Verdict and judgment for demandant; to which, on the application of Lovell, this court awarded a supersedeas.
    Johnson, for the plaintiff in error,
    said, that the abatement in 1812 put an end to the cause. As the law then stood, a writ of right, abated by the death of a party, could never be revived in any way1: the abatement was absolute. The new provision of the statute, which obviated the abatement of real actions by the death of either party, and gave the scire facias to revive, for or against the heirs of the deceased party, was altogether prospective: the provision is, that “where any action, real or mixed, is now or shall be depending &c., for the recovery of any lands &c., and any party thereto shall die before verdict rendered, such action shall not abate” &c. This suit having been determined by abatement in 1812, was surely not a suit pending at the time of this enactment. But, if the demandant had a right to the scire facias, the sequel of the proceedings was palpably irregular and erroneous; for the scire facias being against ten heirs of the tenant, was served on only two of them, and then the cause was tried only as against one of those two.
    Wyndham Robertson, for the defendant in error,
    insisted, that the objection to the scire facias was in truth an objection to the form of action, and an objection of which the tenant might have availed himself by demurrer to the scire facias; and he endeavoured to shew, that the objection was obviated by the provision of the statute of jeofails, which, after verdict, cures all defects whatsoever, whether of form or substance, which might have been, but have not been, taken advantage of by demurrer. 1 Rev. Code, ch. 128, 103, p. S12. As to the proceedings on the scire facias: the heir against whom the cause was tried, instead of going into trial on the mere right, might have pleaded the joint tenure of his co-heirs in abatement; but not having done so he could not rely on joint-tenure as a defence in bar. Green v. Liter, 8 Cranch, 243. Much less could he avail himself of such matter, after trial, verdict and judgment, as a ground of reversal.
    Johnson replied,
    that the statute of jeo-fails by no means dispensed with pleadings, but only gave to a verdict the effect of curing such defects in pleading, as would have been properly demurrable. Here, there was nothing to demur to: there were no pleadings; the whole proceeding consisted of the scire facias and trial. The authority of Green v. Liter did not touch the present case: the only matter of abatement here, was the death of the tenant: that had been pleaded, and judgment of abatement rendered. And the objection now is, that from the time of the abatement, the cause was out of court, and therefore no farther proceeding could be had in it.
   PLR CURIAM.

The suit was at an end, by the abatement in 1812 by the death of the tenant, and could not be revived.

Judgment reversed, and judgment entered for the plaintiff in error.  