William Alexander & Bros. v. Davidson

Curia, per

Richardson, J.
When the plaintiff, in any action at law, dies, the action abates. Because there is, then, no person, remaining to conduct and carry on the action; and, consequently, the power of attorney terminates, and the case is out of court. If, therefore, William Alexander was the only plaintiff, his action abated by his death, and was out of court from the time of his death. But he could not be non-suited, because there was neither a plaintiff, nor any action remaining, to sustain a non-suit. A non-suit is either a voluntary letting fall the action, or the non-suit is ordered, “in invitwn,” for defect of evidence, or failure in law. But, in either case, there must be a plaintiff in being. See Jacob’s Law Dicty. title, “action,” Rogers vs. Maddin, 2 Bail. 321 — in order to suffer the non-suit. The proper inquiry of this case is, therefore, whether there was any plaintiff, surviving William Alexander, who could carry on the suit, or be non-suited 1 An action may be sustained in the' name of a firm — as in the case of Martin & Cornwell vs. Kelly, (Cheves’ R. 215,) without setting out their Christian names. And I presume, in that ease, if Martin, or Cornwell had died, the survivor might have still carried on the action, (Boyleston, et al. vs. Cordes, 4 M’Cord, 144,) because two persons, Martin & Cornwell, had brought the action. But, in the case before the Court, William Alexander is the only person named. The term “Brothers,” not being the name of another person, but merely indicating that he had partners of a certain con-, sanguinity. Possibly, the process might have been amended, by inserting the proper names of the brothers of Wm. Alexander. And then there would have been other plaintiffs. But, until that was done, there could be no plaintiff before the Court, but William Alexander, who was dead.

It follows, plainly, from these premises, that no non-suit *52could be ordered. And the case ought to have been marked, “ abated by the death of the plaintiff.” The non-suit is, therefore, set aside.

J. S. RICHARDSON.

We concur. J. Belton O’Neall, Josiah J. Evans, B, J. Earle, A. P. Butler.
J. Williams, for the motion.

Wright & McMullan, contra.