¶1dissenting:
¶2I dissent from the opinion by Judge English reversing the judgment because of the refusal to abate the attachment. I am clearly of the opinion that the Court ought to have abated the action as to the dead co-plaintiff, and have *560ordered tbe case to proceed in the name of the survivors, as two suits could not be made out of one, especially as the whole cause of action remained with the survivors, leaving nothing in the administrator of the dead man, on which to prosecute the suit. Code, c. 127, s. 2, does save the action from death under the common-law, but only in favor of the survivors. But the court has not yet tried that branch of the suit standing in the name of the administrator. If that be tried, and judgment given for plaintiffs, a writ of error would remedy the error of persisting in that branch of the suit. That bridge can not be crossed until it shall he reached. The court tried the action as to the surviving plaintiffs just as it ought to have done if a proper order of abatement had been entered. Then how can you reverse a judgment for that cause in that branch of the suit, so to call it, but really the suit proper ? The defendant is not injured in this present trial by the refusal to abate as to the dead man. If even there had been recovery of the whole — not merely three-fourths — of the damages, that would have been no ground of complaint. The only error in this case is the limiting to the recovering of three-fourths, but that is an error in favor of the defendant. I agree to reverse for the refusal of instruction No. 2. I see no error in refusing No. 1. The action was for permanent injury. Watts v. Railroad Co. 39 W. Va. 196 (19 S. E. 521).