12. Where a fame covert is sued without her husband for a cause of action that would survive against her, as upon a contract made before, or a tort committed after, marriage, the coverture is pleadable in abatement, 1 Sid. 109 ; 3 Term, 629 ; and not otherwise, 9 Mees. & W. Exch. 299 ; Comyn, Dig. Abt. F 2. If the marriage takes place pending the action, it cannot be pleaded. 2 Ld. Raym. 1525 ; 5 Me. 445 ; 2 M'Cord, So. C. 469. It must be pleaded by the feme in person. 2 Saund. 209 b. Any thing which suspends the coverture suspends also the right to plead it. Comyn, Dig. Abt. F 2, $ 3 ; Coke, Litt. 132 b; 2 W. Blackst. 1197 ; 1 Bos. & P. 358, n. (f) ; 4 Esp. 27, 28 ; 15 Mass. 31 ; 6 Pick. Mass. 29.
13. Death of the plaintiff before purchase of the writ may be pleaded in abatement. 1 Archbold, Civ. P1. 3134 ; Comyn, Dig. Abt. E 17 ; 3 Ill. 507 ; 1 Watts & S. Penn. 438 ; 14 Miss. 205 ; 2 M'Mull. So. C. 49. So may the death of a sole plaintiff who dies pending his suit at common law. Bacon, Abr. Abt. F; Comyn, Dig. Abt. H. 32, 33 ; 4 Hen. & M. Va. 410 ; 3 Mass. 296 ; 2 Root, Conn. 57 ; 9 Mass. 422 ; 2 Rand. Va. 454 ; 2 Me. 127. Otherwise now by statute, in most cases, in most if not all the States of the United States, and in England since 1852. The personal repre sentatives are usually authorized to act in such cases. If the cause of action is such that the right dies with the person, the suit still abates. By statute 8 & 9 Wm. IV., ch. 2, sect. 7, which is understood to enact the common law rule, where the form of action is such that the death of one of several plaintiffs will not change the plea, the action does not abate by the death of any of the plaintiffs pending the suit .The death of the lessor in ejectment never abates the suit. 8 Johns. N. Y. 495 ; 23 Ala. N. s. 193 ; 13 Ired. No. C. 43, 489 ; 1 Blatchf. C. C. 393.
14. The death of sole defendant pending an action abates it. Bacon, Abr. Abt. F; Comyn, Dig. Abt. H 32 ; Hayw. No. C. 500 ; 2 Binn. Penn. 1; Gilm. Va. 145 ; 4 M'Cord, So. C. 160 ; 7 Wheat. 530 ; 1 Watts, Penn. 229 ; 4 Mass. 480 ; 8 Me. 128 ; 11 Ga. 151. But where one of several co-defendants dies pending the action, his death is in general no cause of abatement, even by common law. Hargrave, 113, 151; Croke, Car. 426; Bacon, Abr. Abt. F; Gould, Pl. ch. 5, 0 93. If the cause of action is such as would survive against the survivor or survivors, the plaintiff may proceed by suggesting the death upon the record. 24 Miss. 192 ; Gould, Pl. ch. 5, 0 93. The inconvenience of abatement by death of parties was remedied by 17 Car. ii, ch. 8, and 8 & 9 Wm. III., ch. 2, ss. 6, 7. In the United States, on the death of a sole de fendant, his personal representatives may bo substituted if the action could have been originally prosecuted against them. Gould,
P1. ch. 5, .0 95. The right of action against a tort-feasor dies with him ; and such death should be pleaded in abatement. 3 Cal. 370. Many exceptions to this rule exist by statute.
15. Infancy is pleadable in abatement to the person of the plaintiff, unless the infant appear by guardian or prochein ami. Coke, Litt. 135 b; 2 Saund. 117; 3 Blackstone, Comm. 301 ; Bacon, Abr. Infancy, • K 2; 7 Johns. N. Y. 379 ; 2 Conn. 357 ; 3 E. D. Smith, N. Y. 596 ; 1, Speers, So. C. 212. He cannot appear by attorney, since he cannot make a power of attorney. 1 Chitty, Pl. 436 ; Archbold, Civ. Pl. 301 ; 3 Saund. 212 ; 3 N. H. 345 ; 8 Pick. Mass. 552 ; 7 Mass. 241 ; 4 Halst. N. J. 381 ; 2 N. H. 487 ; 7 Johns. N. Y. 373. Where an infant sues as co-executor with an adult, both may appear by attorney, for, the suit being brought in autre droit, the personal rights of the infant are not affected, and therefore the adult is permitted to ap point an attorney for both. 3 Saund. 212; Rolle, Abr. 288 ; Croke, Eliz. 542 ; 2 Strange, 784. At common law, judgment obtained for or against an infant plaintiff who appears by attorney, no plea being interposed, may be reversed by writ of error. 1 Rolle, Abr. 287; 3 Saund. 212 ; Croke, Jac. 441. By statute, however, such judgment is valid, if for the infant. 3 Saund. 212 (n. 5).
16. Lunacy. A lunatio may appear by attorney, and the court will on motion ap point an attorney for him. 18 Johns. N. I. 135. But a suit brought by a lunatic uuder guardianship shall abate. Brayt. Vt. 18. 11'. Misjoinder. The joinder of improper plaintiffs may be pleaded in abatement. Comyn, Dig. Abt. E 15 ; Archbold, Civ. Pl. 304; 1 Chitty, Pl. 8. Advantage may also be taken, if the misjoinder appear on record, by demur rer in arrest of judgment, or by writ of error. If it does not appear in the pleadings, it would be ground of non-suit on the trial. 1 Chitty, Pl. 66. Misjoinder of defendants in a personal action is not subject of a plea in abatement. 18 Ga. 509 ; Archbold, Civ. Pl. 68, 310. When an action is thus brought against two upon a contract made by one, it is a good ground of defence under the general issue, Clayt. Del. 114 ; 1 East, 48; 2 Day, Conn. 272; 11 JOhns. N.Y. 104 ; 1 Esp. 363; for in such case the proof disproves the declaration. If several are sued for a tort committed by one, such misjoinder is no ground of objection in any manner, as of co-defendants in actions ex delicto, some may be convicted and others ac quitted. 1 Saund. 291. In a real action, if brought against several persons, they may plead several tenancy ; that is, that they hold in severalty, not jointly, Comyn, Dig. Abt. F ]2; or one of them may take the entire tenancy on himself, and pray judgment of the writ. Comyn, Dig. Abt. F 13.