#### *William Alexander & Brothers vs. Davidson & Davidson.*

A *sum. pro.*brought on a note drawn payable to William Alexander & Brothers; pending the suit, William Alexander died. On the trial, the presiding Judge ordered a sion-suit — non-suit set aside, and ordered to be marked abated, it being the proper order that should have been made under the circumstances.

*Before*Gantt, J. *Lancaster, Fall Term,*1841.

This was a *summary process,*on the following note : — ■ “ Six months after date, we, or either of us, promise to pay William Alexander <fe Brothers, forty-eight dollars and 100-75, for value received. As witness, my hand and seal. June" 30th, 1840.

Signed, J. F. N. DAVIDSON.

B. F. DAVIDSON.”

*50And the following are the facts, reported by the presiding Judge: — Jackson Miller was sworn, as a witness, who proved the signatures of J. F. N. Davidson and B. F. Davidson, to be their respective hands writing.

Fowler Williams, also, proved the hand writing of B. F. Davidson, affixed to the note. And the plaintiff’s counsel admitted that William Alexander was dead.

The presiding Judge ordered a non-suit, on the ground, that the suit abated by the death of William Alexander, the only person named in the note, and that a decree could not go in favor of the Brothers, as survivors, without designating who they were, in the process.

The ground relied on in the appeal is, that a non-suit was an improper order; that if the suit did abate by the death of William Alexander, that would have been the proper entry.

As the suit was attempted to be carried on in behalf of the Brothers, after the death of William Alexander, *quoad*the Brothers, the non-suit was properly ordered.

' The plaintiff, from this order, appealed, and moved to set aside the non-suit; and for a new trial, on the following grounds:

1st. Because the suit did not abate by the death of Wm. Alexander, notwithstanding the names of the Brothers were not set forth in the plaintiff’s .process. But would inure to the Brothers, as survivors; and his Honor erred in ruling, that the survivors could not recover, unless their names were set out in the process.

2d. Because, that if the suit did abate by the death of William Alexander, his Honor erred in granting a non-suit; but should have marked the case on the docket, as abated, inasmuch as the defendants could not enter up their judgment of non-suit against the Brothers as survivors, unless the names of the Brothers had been set out in the process.

3d. Because his Honor erred, in refusing to mark the case, abated; if, in fact, it had abated by the death of William Alexander, and in granting a non-suit. But the defendants, in order to have availed themselves of the defect, or omission of the names of the Brothers, in the *51plaintiff’s process, should have pleaded the same in abatement.

Williams, for the motion.

The parties were not well set out; but the objection was not taken; 1 Hill, 48. The death of William Alexander was no abatement, it might have been suggested; Chev. 215.

Wright, contra.

Chitt. (Marg.) Plead. 256.

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.