-delivered the opinion of the' Court.

It is urged by the defendant’s counsel, that as at common law the death of one of two or more plaintiffs abated a suit, as well as the death of a sole plaintiff, the same consequences followed the death of one joint plaintiff as the death of a sole plaintiff — that the statutes in this State and in England, made to remedy the evil by authorizing the executor to prosecute the suit commenced by his testator, and the survivor to prosecute a suit commenced by him and another, since deceased, have the same object in view, and *41extend alike to the same class of cases — that no action will survive to the survivor in case of the death of one of two or more plaintiffs, which would not survive to the executor upon the death of a sole plaintiff — that this suit would not survive to the executor, consequently it will not survive to the survivor — that the statutes» made to prevent the abatement of suits give no new rights, nor do they keep alive that which at common law was determined.

It is a maxim of the common law, that personal actions die with the person; and that actions ex delicto can never be revived or prosecuted by the executor. Actions ex contractu abate by the death of the plaintiff, yet the cause of action remains, and the executor may prosecute thereon. Where there were two or more plaintiffs, the same doctrine seems to have obtained as to the abatement of the suit on the 'death of one; but the right to prosecute by the survivor existed, as well in cases arising ex delicto, as those arising ex contractu. By statute in England it is now pi’ovided, that if the plaintiff die after interlocutory and before final judgment, if the action might have been origirially prosecuted by the executor, it shall not abate ; and also if one of two or more plaintiffs dies, if the cause of action survives to the survivox*, the suit shall not abate. By statute in England the executor may have an action for trespass done to his testator as of the goods and chattels of the deceased carried away in his life-time. By our statute it is provided, if the plaintiff die fending the suit, if the cause of action survives to the executor, the suit shall not abate ; and also, if one of two or more plaintiffs die, if the cause of action survives, the suit shall not abate Our statute also gives to the executor an action for trespass done to his testator as of the goods and chattels of the deceased, carried away in his life-time.

The whole current of authorities requires a distinction at common law between the rights which survived to the executor, and the rights which survived to the survivor, although actions would alike abate in both cases. In actions ex delicto, in case of the decease of the sole plaintiff, not only did the suit abate, but the right was forever gone. Not so in case of the decease of one of two or more plaintiffs; the suit abated, but the right survived. 3 Bl. Com. 302. Ham. 152. 14 Viner. 473, 574. Co. Lit. 198, a. It is a general rule, that where two are entitled to a right ex delicto, and *42one <Jies, it remains wholly to the survivor. If then at common law the right, that is, the cause of action survives, though the action abates, the question remains, Does this action survive under the statute ? From a recurrence to the English statute before noticed, it will be seen, that the rights of the executor and the rights of the survivor to prosecute the suit are wholly different. The language of the statute in the case of executors is, “ if the action might have been originally prosecuted, &c. it shall not abatein the case of the survivor, it is, “ if the cause of action should survive, &c. the suit shall not abate.” This distinction in the English statute is noticed for the purpose of showing that any decisions that may have been made under the statute as applicable to executors, and which have been relied upon in this case, cannot apply to survivors. The form of action is embraced in the former — the cause of action in the latter. Neither, however, is construed as giving any new rights —the object is, to prevent delay and the expense of a fresh suit.

But for the statute de bonis asportatis no action ex delicto could nowbe maintained by an executor. Such actions are sustained by survivors every day, and this without the aid of any such statute. It follows then, of course, in England, if the cause of action survives, the action then would be saved. The doctrine referred to by the defendant’s counsel in Hammond and Taunton is perfectly consonant to the grounds here taken. The case of the abatement of the suit of the husband and wife, by the death of the wife, and not by that of the husband,’ clearly marks the distinction, that when the cause of action survives to the survivor, the action does not abate —otherwise it does. No other case is shown of the abatement of a joint personal action by the death of one of two or more joint plaintiffs, since the statute 9 William III. than of such as are in the name of husband and wife. And the reason why husband and wife join in the action, is not, as in the case of other joint plaintiffs, because they have both an interest in the thing demanded, but because of the union of person by the marriage. From examining our statute before referred to, it will be noticed that form of action is not regarded. In both cases, as well of the decease of a sole plaintiff, as of one of two or more plaintiffs, if the cause of action survives, the suit shall not abate. Our statute is also unlike the English statute de asportatis, as to the rights which are given to the *43plaintiff’s executor. If this action had not been instituted by Wright and Lovett, there can he no doubt that Wright, as survivor, would have been entitled to sue, as well as any other creditor of Mumfred Eldred. The suit then cannot abate, the cause of action surviving. The ground taken in deciding this case renders it unnecessary to examine the question whether the action given by the statute is remedial or penal.

There must be a respondeas ouster.