Chapman v. Mayrant ex rel. Mayrant

Citations

• 29 S.C.L. 481

Syllabus

<p>1. To the plea of the Statute of Limitations, to an action on a joint and several promissory note, the replication was, that before the period of limitation had expired, plaintiff sued out a joint writ against both of the makers of the note ; that before the return of the writ, one of the makers died, and that within a year and a day from his death, plaintiff sued out another writ against the executrix of the deceased, which action was continued by successive writs stated in detail, with the Sheriff’s return, connecting it with the last writ on which the plaintiff declared.. General demurrer and joinder, which was overruled. Judgment overruling the demurrer, sustained.</p> <p>2. The terms of the Act of 1746, (7 Stat. 193,) that the action “shall proceed” at the suit of the surviving plaintiff, &c. are to be construed “may,” from the context and intention of the Act; and was not intended to prevent a discontinuance.</p> <p>3. The Act only provides that in certain cases the suit shall not abate against the survivor, and is silent respecting the action against the deceased party, as to whom it remains abated as before the Act.</p> <p>4. The Act is remedial.</p> <p>6. Before the Act, on a joint action, on a joint and several cause of action, the suit abated against both parties by the death of one; and the plaintiff might have commenced a separate action, within a year, against the survivor, and the representatives of the deceased party. The plaintiff is not deprived of this advantage, because the statute prevents the abatement of the suit against the survivor.</p> <p>6. In case of the death of the survivor, pending the action, the plaintiff may renew against his personal representatives within a year, and is not deprived of the same remedy against the representatives of the party first dying.</p>