Frohock v. Gustine , 8 Watts 121 ( 1839 )

The opinion of the Court was delivered by

Sergeant, J.

We think that the action of partition in this case did not abate by the death of two of the plaintiffs after judgment quod partilio fiat. It is expressly enacted by the act of the 7th of April 1807, sect. 4, which is like the English statute of 8. and 9 W. 3, c. 31, that no plea in abatement shall be admitted or received in any suit for partition. Strictly speaking, it was by plea in abatement that the defendant formerly took advantage of the death of a plaintiff. It would seem that the death of a plaintiff after the first judgment, and before the second judgment, would not, even before the statute 8 and 9 W. 3, have abated the writ. 1 Brownl. & Gold. 157. But though the writ did not abate, the surviving plaintiff could not, after the death of the other plaintiffs, issue execution, but ought to have t.akeii out a scire facias to show cause why a writ departilione faciepda should not issue; for it is a general rule, that if, after judgment, but before execution, either the plaintiff or defendant die, judgment must be revived by scire facias, by or against the representatives of the deceased, before any execution can issue; 2 Sell. Prac. 189; and in real actions, a scire facias lay a.t common law. 2 Inst. 409; 6 Bac. Ab. 105, 113; 2 Sell. Prac. 188. The whole doctrine is thus stated in 1 Brownl. & Gold. 157, above referred to. In this action there are two judgments. The first is that partition shall be made; and if the plaintiff die after the first judgment, and before the second judgment, the writ shall not abate, but his heir shall have a scire facias against the defendants to show cause why partition should not be made. The judgment of the court is therefore affirmed, so far as it set aside the pluries writ de partitione fatienda, but reversed so far as it ad judged the abatement of the suit by the death of two of the plaintiffs, and the cause must be remitted to the court below, for such further proceedings thereon as may be legally adopted by the parties.

Record remitted.