By the Court,
Nelson, Ch. J.The writ of habere facias, I am of opinion, was regular. The rfevised statutes do not reach the case; it rests, therefore, upon the practice at common law. The general rule in all personal actions is, that where there are two or more plaintiffs or defendants, and one dies after judgment, execution may be sued out without any scire facias, 1 Archb. 374, and cases there cited, but it must be in the joint names of all the plaintiffs or defendants, and in *680other respects conform to the judgment. Id. 2 Saund. 72, (K.) note 3.
Eyre, arguendo, in Penoyer v. Brace, l Ld. Raym. 244, gives the true reason, and which Was áfterwrds adopted by Lord-'Holt. He said that where the execution of aijudgmentis not chargeable or beneficial to a person who was not a party (to the judgment, there a scirfi facia.s was unnecessajy, as ill case of supervisorship. In that case one bf five defendants had died,, and Lord Holt said there' was no need. of a sci.'/a.,';because there was no alteration of the Record, -nor any new person .made liable to the execution, tipe also 2 Ld, Raym. 808. A suggestion of the death should^ however, be made on the record. .
‘ The reason of the rule does not apply in its full force to the action bf ejectment under our statute ; but I perceive no serious objection to it iii practice. The interest of a deceased po-pláintiff 'would descend to the heir or pass to the'devisee, and therefore not survive, but the surviving plaintiff receives .the possession, and holds as well for the heir or devisee as for himself,..-.the same as in the cáse of a personal ¿action where he receives the demand, a moiety of Which may belong to the personal representative of the deceased. If both plaintiffs were living, it would be entirely eompetent'for one to receive possession under the habere facias. Under the bid form of .-ejectment the question would not arise, as the nominal plaintiff never died. 4 Burr. 1970. In an Anonymous; case, 3 Salk. 319, it was held that after judgment in ejectment, where there are more plaintiffs (meaning léssors, probably,) and defendants than one, after the death' of one, execution niay be taken out by the survivors, without sci.fa., upon making suggestion on the roll. We' are, therefore, but applying to this case the rule which existe^ under the bid form of- action, where one or moré of the- lessors died after judgment; they wéré the real plaintiffs in' the suit. .’ But without, going the length which we -’have supposed may be maintained consistently enough, I perceife no.ground for objecting to the practice in this particular’;-case.; Here it appears "that the surviving plaintiff took by devise the light of the: deceased in the premises,: and-is/therefore the *681only person interested in the execution of the writ. It would be an idle ceremony to go through the form of malting himself a party to proceedings as the devisee of his co-plaintiff.
I am inclined to think a new trial should be awarded under the statute. 2 R. S. 235, § 37. As the affidavit on which the verdict was set aside in the common pleas, grounded the motion, exclusively, upon newly discovered evidence, and nothing in the rule indicating the contrary, it is, perhaps, but fair to presume the court acted upon it, whether rightfully or not is now immaterial. We cannot inquire into that question here. If the court placed their decision upon matters not specially relied on in the papers before them, the attorney for the plaintiffs should have had the grounds of it inserted in the rule. It should have indicated that the new trial was granted under the s atute.
As to the costs in the chancery proceedings, we take no cognizance of them. The statute prescribes the terms of granting a new trial in this actio i. and it is our guide ; nor shall we stop to inquire as to the conditions said to be imposed by the vice chancellor, as pre-requisites to the granting of this motion here, or whether they have been complied with or not. These are questions for the parties to settle before that court. Though more than three years have elapsed since the time judgment was entered, it was so entered by an order, October, 1839, nunc pro tune as of October term, 1834, without prejudice to this application; it comes, therefore, within the time prescribed by the act.
Ordered, that judgment be vacated and a new trial granted, on payment of all costs and damages recovered in the judgment in this court.
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