An action on contract by a copartnership, the avails of which have been assigned dur ing its pendency to a third person, does not abate by death of one partner, but may be prosecuted to judgment without change on the record ; Pennsylvania Fire Ins. Co. v. Carnahan, 19 Ohio Cir. Ct. R. 97. But when the suit involves an adjustment of equities between former partners and new ones, it should be revived as against the representa tives of a new partner who 'died pendente lite; Hausling v. Rheinfrank, 103 App. Div. 517, 93 N. Y. Supp. 121.
Certain legal disabilities are pleadable in abatement, such as outlawry; Bac. Abr. Abt. B; Co. Litt. 128 a; attainder of treason or felony ; 3 Bla. Com. 301; Corn. Dig. Abt. E. 3 ; also prwmunire and excommunication; 3 Bla. dom. 301; Com. Dig. Abt. E. 5. The law in reference to these disabilities can be of no practical importance in the United States ; Gould, Pl. ch. 5, § 32.
Alienage. That the plaintiff is an alien friend is pleadable only in some cases, where, for instance, he sues for property which he is incapacitated from holding or acquiring; Co. Litf. 129 b; Stramburg v. Heckman, 44 N. C. 250. By the common law, although he could not inherit, yet he might acquire by purchase, and hold as against all but the sovereign. Accordingly he has been allowed in this country to sue upon a title by grant or devise; Sheaffe v. O'Neil, 1 Mass. 256; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. Ed. 453; but see Siemssen v. Bofer, 6 Cal. 250; Wacker v. Wacker, 26 Mo. 426. The early English authority upon this point was otherwise ; Bac. Abr. Abt. B, 3, Aliens D ; Co. Litt. 129 b. He is in general able to maintain all actions relating to personal chat tels or personal injuries ; 3 Bla. Com. 384 ; Cowp. 161; Bac. Abr. Aliens D ; 2 Kent 34; Co. Litt. 129 b. But an alien enemy can maintain no action except by license or per mission of the government ; Bac. Abr. Abt. B, 3, Aliens D ; 46 ; 1 Ld. Raym. 282; 6 Term 53, 49 ; Russel v. Skipwith, 6 Binn (Pa.) 241; Sewall v. Lee, 9 Mass. 363 ; 3 M. & S. 533 ; Hamersley v. Lambert, 2 Johns. Ch. (N. Y.) 508 ; Russel v. Skipwith, 1 S. & R. (Pa.) 310. This will be implied from the alien being suffered to remain, or to come to the country, after the commencement of hos tilities without being ordered away by the executive; Clarke v. Morey, 10 Johns. (N. Y.) 69. See 28 'Mag. L. & Eq. 319. But the dis ability occurring after suit brought simply suspends the right of action ; Hutchinson v. Brock, 11 Mass. 119. The better opinion seems to be that an alien enemy cannot sue as administrator ; Gould, Pl. ch. 5, § 44. That both parties were aliens is no ground for abatement of a suit on a contract made in a foreign country ; Rea v. Hayden, 3
Mass. 24. See also Barrell v. Benjamin, 15 Mass. 354; Roberts v. Knights, 89 Mass. (7 Allen) 449.
Corporations. A plea in abatement is the proper manner of contesting the existence of an alleged corporation plaintiff ; Methodist B. Church v. Wood, Wright (Ohio) 12 ; Pro prietors of Kennebeck Purchase v. Call, 1 Mass. 485; President, etc., Hanover Say. Fund Soc. v. Suter, 1 Md. 502 ; Rheem v. Wheel Co., 33 Pa. 356 ; Pitman v. Perkins, 28 N. H. 93 ; Yeaton v. Lynn, 5 Pet. (U. S.) 231, 8 L. Ed. 105. To a suit brought in the name of the "Judges of the County Court," after such court has been abolished, the de fendant may plead in abatement that there are no such judges ; Judges of Fairfield County v. Phillips, 2 Bay (S. C.) 519.
Where a general incorporation law pro vides for winding up the affairs of corpora tions by trustees, after dissolution, pending suits do not thereupon abate; Scott v. Oil Co., 142 Fed. 287; Gordon v. Pub. Co., 66 N. Y. Supp. 828 ; Platt v. Ashman, 32 Hun (N. Y.) 230; until the expiration of the pe riod allowed for winding up ; Dundee Mortg. & Trust Inv. Co. v. Hughes, 77 Fed. 855 ; or, if abated, they may be revived against the trustees ; Shayne v. Pub. Co., 168 N. Y. 70, 61 N. E. 115, 55 L. R. A. 777, 85 Am. St. Rep. 654. The annulment of a charter for non payment of taxes will not abate a suit prop- i erly brought and previously prosecuted to judgment before a referee ; Pyro-Gravure Co. v. Staber, 30 Misc. 658, 64 N. Y. Supp. 520.
Public Officers. Where a commission cre ated by state law is abolished during the pendency of a suit against it, the officers who are by law authorized to wind up its busi ness are proper parties against whom there may be proceedings for revival ; Hemingway v. Stansell, 106 U. S. 399, 1 Sup. Ct. 473, 27 L. Ed. 245. A'suit against a public officer in his official capacity does not as a general rule abate by reason of a change in the in cumbent of the office ; Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct. 776, 46 L. Ed. 1070; Sheehan v. Osborn, 138 Cal. 512, 71 Pac. 622; Nance v. People, 25 Colo. 252, 54 Pac. 631; People v. Coleman, 99 App. Div. 88, 91 N. Y. Supp. 432; nor does a suit by a sheriff for conversion of goods levied by him ; Dickin son v. Oliver, 112 App. Div. 806, 99 N. Y. Supp. 432; but a suit against the Secretary of the Interior to compel the issue of patents for public lands, does abate on his resigna tion ; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 17 Sup. Ct. 225, 41 L. Ed. 621; and so does a suit against a town treasurer if his successor is not made a party in due time; Saunders v. Pendleton, 19 R. I. 659, 36 Atl. 425.