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![handle is hein.slavery/ssactsengr0962 and id is 1 raw text is: 874 HILARY TERM, 33 AND 34 CAR. 2. IN B. R. 2 SHOW. K. B. 178.
it is on writ of error, and in the case of Leigh v. Burgamy (b), trespass brought by
two jointenants, one dies, and held the writ should abate, as it is in all cases, unless
of necessity, or in a quare impedit and audita querela: see Spencer v. Woodward (c), and
Lisle v. Gray (d). And in a writ of error here about a twelvemonth since, one of the
plaintiffs dying we brought a new writ of error, the Judges being of opinion that the
writ abated.
Dolben Justice. In personal actions where two join, it many times survives;
besides, why should it abate in the plaintiff's case more than in the defendants (e).
Two tenants in common of a shop, one may bring an action for his moiety of the shop;
and so for half a negro, and so it has been allowed.
(178] Pemberton Chief Justice. The case of Spring v. Ballet is dark as to the
reason of it; for why should they join in case of a horse, and sever in case of a negro.
And it was said by all, that Chancery hath been and still is endeavouring to
destroy survivorship, and that it was the attempt of the commissioners in the late
times.
In the next term it was moved again, and then urged the case of Hill v. Tempest,
Cro. Eliz. 145, that one defendant dying before the last continuance, in regard the
judgment was only against him that survived, the writ should not abate as to him (f);
and that in the case of Spring v. Ballot, 2 Bulst. 262, it is held on motion, that though
one plaintiff die yet it should not abate; and Sir Oliver Lee's case was in the first year
of James the First, but the case of Read v. Readman was in the tenth year of James
the First, it is in 10 Rep. 134.
E contra. It was argued that the right to one moiety accrued after, and therefore
at the time when this action was brought, he had such a right to a moiety only : now
a right accrued pending an action, will not supply the want of it when the action was
brought: the case of an avowant will not be like this, because here in our case the
action is begun, and the thing to be recovered is mentioned before. Whittingham v.
Lord Derby's Tenants, Hob. 287, a scire facias by husband and wife, and the husband dies ;
the report there is a Curia advisare vult, but in Hutt. 37, it is said per totam Curiam,
that it shall abate.
Adjournatur (g).
CASE 172. THE KING against THE COLLEGE OF PHYSICIANS.
A mandamus will not lie to the College of Physicians to admit an honorary fellow
of a colledge.
Mandamus prayed for Dr. Merrit to the college to receive him to be one of the
honorary fellows.
Pemberton Chief Justice. No mandamus lies; for it is no place of profit; no way
advantageous to him ; nor in the least relating to the Government (a). It is a thing
spontaneously raised among themselves, and like to the inns of Court, which are-
(b) Cro. Jac. 19.
(c) Yelv. 208.
(d) Ante, 6.
(e) See 17 Car. 2, c. 8, and 8 & 9 Will. 3, c. 10.
(f) By 8 and 9, Will 3, c. 11, s. 7, if there be two or more plaintiffs or defendants,
and one or more of them should die, if the cause of such action shall survive to the
surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the
writ or action shall not be thereby abated ; but such death being suggested on the record,
the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the
surviving defendant or defendants.
(g) The judgment was reversed, S. C. Ray. 463, principally upon the authority of
the case of Read v. Redman, 10 Co. 134, and see the case of Capel v. Saltanstall,
3 Mod. 249.
(a) But see the case of Rex v. Askew and Others, Censors of the College of Physicians,.
4 Burr. 2186.](ViewImageLocal?handle=hein.slavery/ssactsengr0962&div=1&collection=&method=preview&ext=.png&size=3)