M'Kee v. Straub

On this day the judgment of the court was pronounced. Tilghman C. J. The word “tenet” in a writ always implies a tenant of the freehold. Co. Lift. 167. a. The defendants were therefore entitled to a verdict, because it was proved that they were not tenants of the freehold. It has been urged that the plaintiffs are entitled to a judgment, because by the stat. 8 & 9 W. 3. c. 31. the suit shall not abate by the death of any tenant. But the statute is out of the question, as it was made since the settlement of Pennsylvania, and does not extend here. I am therefore of opinion that judgment cannot be entered for the plaintiffs, inasmuch as it appears on the record that one of the defendants died since the commencement of the action. Yeates J. It is a good ground for a new trial, that neither of the defendants who were living at the time of the trial, were tenants of the freehold. Unless this fact was proved, the plaintiffs did not shew themselves entitled to recover. At common law a real action between co-parceners was abated by the death of any one of the parties,' though it was admitted they were not co-parceners, but jointenants. Cro. Car. S7é. S83. And if in partition, after the first judgment and before the second, one of the defendants dies, the writ [4] is abated, and the court will not suffer the return of the par-10 be filed. Any judgment given against a dead person is erroneous. Noy, 145, 6. The counsel for the plaintiffs put the reason in arrest of judgment on its true ground, viz. the extension of the British statute 8 & 9 W. 3. c. 31. 3 Ruff. Stat. 683. Now the members of this court in their report to the legislature at the last session, in pursuance of the duties enjoined on them, have not specified this act of parliament as having been extended by practice; and it is observable that our own act of assembly of 7th April 1807, 8 St. Laws 155, adopts many of its provisions; and particularly the 4th section of our act uses the very expressions of the British act, except that instead of the words “ the death of any tenant,” it substitutes “ the “ death of any defendant.” But our act has no retrospective words, and, the trial being in October 1806, can have no operation. The British statute then not extending to us, it is conceded that the proceedings cannot be supported, and the judgment must he reversed. J udgment reversed.-