may be rendered against the estate of the deceased. before final judgment, and the executor or administrator the same, judgment of the deceased party, after taking upon himself the said trust, shall neglect or refuse to become a party to the suit, the Court before whom such cause shall be pending (in case the cause of action doth by law survive) may enter up judgment against the goods and estate of the deceased party, in the same way and manner judgment might have been, in case the executor or administrator had voluntarily, after such death, made himself a party to the suit; provided, that such executor or administrator be duly served with a notification from the clerk of the court, where such fication, suit is pending, fourteen days beforehand. Provided, such exee utor or administrator be served with a noti What actions do, and It appears then, that it is only such actions, the causes of which do not survive, that are abated by the death of the what actions do not, party. survive. As to what actions do, and what do not survive,-in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery 3 Bl. Com. 302. and slander, the rule is, that personal actions die with the Barnard v. Harring ton. 3 Mass, T. R. person: But in actions arising ex contractu, by breach of 228. promise, and the like, there the right descends to the execútor and administrator, and the cause of action is said to survive. Pitts v. Hale, So also in replevin, if defendant dies, pending the suit, his executor or administrator cannot come in and defend, 3 Mas.T. R. 321. because the action is founded on a tort, which does not survive against the executor or administrator. But if plaintiff in replevin dies, his executor or administrator may come in and prosecute within the equity of the statutes of 4 Edward 3d. c. 7. and 31 Edward 3d, c. 11. We have no statute which makes provision for cases where there is a plurality of plaintiffs or defendants, and one dies pending the suit. In such case, at common law, the writ would, under certain circumstances, be abated. To remedy this inconvenience, the stat. 8 & 9 William III. enacts, that if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action should survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such Of cases, where there are a plurality of plaintiffs or defendants, and one dies pending the suit. 4 Bac. Abr. 42. See Stor. Plead. 70, in notis. Andrews v.Bosworth, 3 Mass. T. R. 223. Overseers of the poor secute suits commen death, being suggested on the record, the action shall pro ceed, at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants, &c. The above statute has probably been adopted in this state, and has become part of our own law. If a writ of error is brought by two persons upon a judgment against themselves and another, and the death of the third person is not suggested, the Court will quash the writ upon motion. It ought here to be noticed, that we have two statutes, and treasurers to pro- the first authorizing the successors of overseers of the ced by their prede-poor-the second authorizing treasurers to prosecute suits commenced by their predecessors. cessors. Mass. Stat. Feb. 26, 1794, act 5, sect 5. The first enacts, that no action, brought by overseers, shall abate by the death of some of them, or by their being succeeded in office, pending the action, but it shall proceed in the names of the original plaintiffs, or the survivors of them. The second statute enacts, that the treasurer of the commonwealth, the treasurers of counties, towns, parishes, and Mass. Stat. June 22, other corporations, for the time being, are empowered to 1797, at 1. 4 Bac. Abr. 42. 4 Bac. Abr. 48. prosecute to final judgment and execution, any suits commenced by their predecessors in said capacity, and pending at the time of their removal. If there be several persons named as plaintiffs in the writ, and one of them was dead at the time of purchasing the writ, this may be pleaded in abatement; because it falsifies the writ, and because the right was in the survivors at the time of suing the writ, and the writ not accommodated as the case then was. XI. Of abatement by reason of the pendency of another action for the same thing. Whenever it appears of record, that the plaintiff has sued out two writs against the same defendant for the same thing, the first not being determined, the second writ shalk abate For the law abhors multiplicity of actions, and will not allow that a man shall be twice arrested, or twice at-, tached by his goods for the same thing; for if he might suffer twice, by the same reason he might suffer in infinitum. But it is no good plea in abatement of an indictment, that there is another indictment, against the same defendant, for the same offence; but in such case, the court will, in discretion, quash the first indictment. 4 Bac.Ab. 48,in notis, It is not necessary that both actions should be pending at the time of defendant's pleading in abatement: For if there 4 Bac. Abr. 48. was a writ in being at the time of suing out of the second, it is plain the second was vexatious, and ill from the beginning, and therefore could not be rectified by a subsequent determination of the first; but then it must appear plainly to be for the same thing. The law is so watchful against all vexatious suits, that not only it will not suffer two actions of the same nature to Ibid. be pending for the same demand, but not even two actions of a different nature. Therefore it is a good plea in trespass, that plaintiff has brought replevin for the same thing, because, in both cases, damages are to be given for the caption. Ibid. 49, in notis. A writ of error depending, is a good plea in abatement, 1 Raym. 47. to an action of debt upon a judgment. If a second writ be brought, tested the former is abated, it shall be deemed to be the abatement of the first. same day the Allen 34. If an action, pending in the same court, be pleaded to a second action brought for the same thing, the plaintiff may pray that the record may be inspected by the court, or demand oyer of it, which, if not given in convenient time, he may sign his judgment. 1 Bac. Abr. 14. Ld. Raym. 347. 4 Bac. Abr. 49. I Mass. T. R. 495. This plea must not only shew the former action to be pending, but must likewise be pleaded prout patet recordum; Clifford v. Cony, for, without reference to the record, plaintiff can neither pray oyer, nor reply nul tiel record: And for want of this, there was a general demurrer, and judgment of respondeat ouster. 3 Burr. 1423. If another action, pending in the same term, be pleaded in abatement to a qui tam action, the defendant must shew Combe v. Pitt, the particular time when the other action was commenced, that the court may see that the priority of right of action attached elsewhere; or the plea will be bad. Mass, Stat. July 3, XII. Of abatement by reason of some defect appertaining to the writ. 1. BAD TEST. If the writ bears test of a justice, who is a party to the action, this matter may be pleaded in abatement. So also, if the writ does not bear test of the first justice, who is not such party. So, it is presumed, if the test be wanting: for the test is essential to give the writ authority. It is enacted by statute, that all writs and processes, is1782, act 5, sect. 1.' suing from the several courts of common pleas, shall bear test of the first justice, who is not a party, and be under the seal of the court, and signed by the clerk thereof. Mass, Stat. July 3, The same provision is made, in case of writs issuing 1782, act 3, sect. 3. from the supreme judicial court. 1798, ac 2, sect. 1, Notice, where the suit is by attachment, And where the defen 2. BAD SERVICE. If it appears, by the officer's return, that the defendant has not received such notice, as is required by law, this may be pleaded in abatement. To ascertain what is, and what is not proper notice, it may be necessary to attend to the following provisions. by statute. 1. When the goods or estate of any person shall be atMass. Stat. Feb, 17, tached at the suit of another, in any civil action, a summons, in form prescribed by law, shall be delivered to the party, whose goods or estate are attached; or left at his or her dwelling-house, or place of last and usual abode, fourteen days before the day of the sitting of the court, where such writ is returnable; and in case the defendant was, at no time, an dant was at no time inhabitant or resident within the commonwealth, then such summons must be left with his or her tenant, agent, or attorney; and the service thereof, in either case, must be certified, by a sworn officer that executed the attachment, or by some other sworn officer, or by affidavit, made in court, by the person that delivered the same, and by one other credible witness, then present: Otherwise, the writ shall abate. an inhabitant of the commonwealth, Evidence of the service. Mass. Stat. Feb. 17, 1798, act 2, sect. 2. 2. In all suits, wherein the process is by original summons, as against executors, administrators, or guardians, in ejectment, dower, scire facias, error, review, and all is by original sumother civil actions, wherein the law does not require a sep Notice, where the suit mons. arate summons to be left with the defendant, the service thereof, by the proper officer, shall be good and valid in law, either by his reading the writ or original summons to the defendant, or by leaving a true copy thereof at his or her house, or place of last and usual abode, attested by such officer, fourteen days before the day of the court's sitting, whereto the same process shall be returnable. Mass. Stat. Feb. 17, Notice, where suchde an inhabitant of the commonwealth. 3. In all actions, wherein the process shall be by original summons as aforesaid, and in which the defendant was 1798, act 2, sect. 3. at no time an inhabitant or resident within the commonwealth, then the service thereof shall be, in like manner, by fendant was at no time the proper officer's reading the same to, or leaving a like copy, duly attested, with the tenant, agent, or attorney of the defendant, the like number of days before the day of the court's sitting, whereto the same process shall be returnable. Mass. Stat. Feb. 17, Notice to the tenant in possession,required 4. In actions of dower, and other real actions, wherein it shall so happen, that the possession of lands or buildings 1798, act 2, sect. 4. shall be demanded, in the writ, not of the tenant in the actual possession or occupancy thereof; in addition to a in real actions. service on the defendant, in the writ or summons as aforesaid, there shall be a service on such tenant or occupant in possession, the like number of days before the day of the court's sitting, by the proper officer's reading to him or her the same writ or original summons, or leaving a like attested copy, at his or her house, or place of usual abode on the premises, which shall also be certified by the proper officer ; or the writ shall abate. Officer's return. 3, 5. The fourteen days' notice, above spoken of, must Mass. Stat. March 11, apply only to cases of writs returnable to the common 1784, act sect. I. pleas, and supreme judicial court; for in writs returnable Notice, where a suit is to a justice of the peace, the law requires but seven days' Peace." notice to the defendant. before a Justice of the So also is it a good plea in abatement, that the service The service must be of the writ was by an improper officer; as where the writ by a proper officer. is served by a sheriff, where it ought to have been done by a coroner; or by a constable, where it ought to have been by a sheriff; and the like. 3. WRONG VENUE. If the action be not brought in the proper county, this is also good cause of abatement. |