It was held that the death of the sole com plainant did not abate the suit if the cause of action survives ; Keep v. Crawford, 92 Ill. App. 587 ; but, even where there is a statutory provision for revival all proceed ings are suspended until it is complied with ; King v. Mitchell, 83 III. App. 632, judgment atnrmed 187 III. 452, 58 N. E. 310; Street v. Smith, 75 Neb. 434, 106 N. W. 472. Death of either party abates a divorce case; Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, 45 L. Ed. 804 ; McCurley v. McCurley, 60 Md. 189, 45 Am. Rep. 717; In re Crandall, 196 N. Y. 127, 89 N. E. 578, 134 Am. St. Rep. 830, 17 Ann. Cas. 874; L. R. 11 P. Div. 103. The persona] representatives are usually authoriz ed to act in such cases. The personal rep resentatives of a deceased plaintiff are the proper parties to revive in replevin ; Rex road v. Johnson, 4 Kan. App. 333, 45 Pac. 1008; a suit to redeem property from a tax sale ; Clark v. Laney, 178 Mass. 460, 59 N. E. 1034; foreclosure of mortgage; Van Brocklin v. Van Brocklin, 17 App. IJiv. 226, 45 N. Y. Supp. 541 (but see Stancill v. Spain, 133 N. C. 76, 45 S. E. 466, where heirs at law or devisees were held necessary par ties); on a delivery bond by a deputy sheriff (he having no official successor in office); Tucker v. Potter, 22 R. I. 4, 45 Atl. 741; ejectment, when the land was devised to the executor in trust to sell and dispose of the proceeds ; Bell's Adm'r v. Humphrey, 8 W. Va. 1; an action ou a sick benefit policy ; Columbian Relief Fund Ass'n v. Walker, 26 Ind. App. 25, 59 N. E. 36; an action for per sonal injuries, commenced by the deceased, though assigned by him; McCafferty v. R. Co., 193 Pa. 339, 44 Atl. 435, 74 Am. St. Rep. 690 ; suit under contract for service stip ulating payment for passage back to France ; Bethmont v. Davis, 11 Mart. 0. S. (La.) 195 ; a suit by a married man against a railroad company for damages to homestead; South ern Ry. Co. v. Cowan, 129 Ala. 577, 29 South. 985; trespass by two, where one dies ; Rowe v. Lumber Co., 133 N. C. 433, 45 S. E. 830 ; an action for damages to land, if permitted to survive at all (but see infra); Mast v. Sapp, 140 N. C. 533, 53 S. E. 350, 5 L. R. A. (N. S.) 379, 111 Am. St. Rep. 6 Ann. Cas. 384; an action for rescission of con tract to cut and remove timber ; Isham v. Stave Co., 25 Oh. Cir. Ct. 167.
The heir at law or devisee is the proper party to revive in an action for injury to real estate ; Texas & N. 0. R. Co. v. Smith, 35 Tex. Civ. App. 351, 80 S. W.. 247.
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 ac tion does not abate by the death of any of the plaintiffs pending the suit.
The death of both parties does not abate an action under a statute providing that no action shall abate if the cause of action sur vives ; McNulta v. Huntington; 62 App. Div. 257, 70 N. Y. Supp. 897; or under one pro viding that actions for injury to property shall survive ; Northern Trust Co. v. Palm er, 171 Ill. 383, 49 N. E. 553, in cases meet ing those conditions respectively.
A Code provision forbidding dismissal of a cause by plaintiff without consent of de fendant, does not affect the right of revival by personal representatives of plaintiff after his death ; Kinzie v. Riely's E'•r, 100 Va.
709, 42 S. E. 872.
In some cases where an action is saved by statute from abatement on death of plain tiff, the court may permit the continuance of the action by his successor in interest ; Over all v. Traction Co., 112 Mo. App. 224, 90 S. W. 402.
The death of the lessor in ejectment never abates the suit ; Frier v. Jackson, 8 Johns. (N. Y.) 495; Ex parte Swan, 23 Ala. 193 ; Thomas v. Kelly, 35 N. C. 43; Hatfield v. Bushnell, 1 Blatchf. 393, Fed. Cas. No. 6,211; his heirs are properly substituted on defend ant's petition; Ballantine v. Negley, 158 Pa. 475, 27 Atl. 1051.
In Wasserman v. United States, 161 Fed. 722, 88 C. C. A. 582, it was held that the fine of one found guilty of contempt, who had sued out a writ of error, but died before the submission of the case to the higher court, should be considered as a charge against the estate, and that the action did not abate by death.
On death of administrator bringing suit it may be revived by his administrator or by administrator de bonis non; Wood v. Tom lin, 92 Tenn. 514, 22 S. W. 206. In Missouri an action for personal injuries cannot be re vived by the administrator after plaintiff's death; Davis v. Morgan, 97 Mo. 79, 10 S. W. 881; nor is such action impliedly saved in West Virginia by the statute giving a right of action after death to the personal repre sentatives; Martin v. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. In New York a statutory cause of action for death by neg ligence abates by the death of the wrong doer ; Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25. In Maryland an ac tion by husband to recover damages for the killing of his wife, abates on his death; Har vey v. R. Co., 70 Md. 319, 17 Atl. 88 ; but in Texas a suit by a husband for personal inju ry to his wife may be continued by her after his death; Mexican Cent. Ry. Co. v. Good man, 20 Tex. Civ. App. 109, 48 S. W. 778; and the remedy of a son for his own suffer ing caused by mutilation of his father's body, is by new action, and not by substitution of himself as plaintiff after the death of bis mother in a suit begun by her for ber own suffering; Jones v. Miller, 35 Wash. 499, 77 Pac. 811. On the death of a father suing for an injury causing the death of his daugh ter, her administratrix may revive ; Meekin v. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. H. A. 235, 79 Am. St. Rep. 635.
The death of a party pending an audit causes a mistrial and new parties must be brought in and the case tried de novo, Car roll v. Barber, 119 Ga. 856, 47 S. E. 181.
The death of plaintiff after judgment and pending motion for a new trial, does not abate the suit; Fowden v. S. S. Co., 149 Cal. 151, 86 Pac. 178; and a decree in equity in favor of husband and wife, after the death of the husband survives to the wife, though she was not a necessary party; Ed gerton v. Muse, Dud. Eq. (S. C.) 179. Where a judgment on a cause of action which does not survive was recovered against a decedent and another, it abates as to the former ; Ham mond v. Hoffman, 2 Redf. (N. Y.) 92.