On the death of one of three partners plaintiff the remaining two may prosecute to final judgment in their own names ; Davis v. Davis, 93 Ala. 173, 9 South. 736.
An action by two tenants in common, after the death of one who bequeathed to the sur vivor his interest in a pending action and made him executor, may be continued by him for damages sustained by both; McPhil lips v. Fitzgerald, 177 N. Y. 543, 69 N. E. 1126. Under U. S. Rev. Stat. § 956, provid ing that an action may be continued by a surviving plaintiff against a surviving de fendant without abatement, where the cause of action survives to the surviving plaintiff or against the surviving defendant, an ad ministrator can neither continue nor defend the action; Fox v. Mackay, 1 Alaska 329.
The death of sole defendant pending an action abates it; Bac. Abr. Abt. F ; anony mous, 2 N. C. 500; McKee v. Straub, 2 Binn. (Pa.) 1; Carter v. Carr, 1 Gilm. (Va.) 145; Farmer v. Frey, 4 McCord (S. C.) 160; Mack er v. Thomas, 7 Wheat. (U. S.) 530, 5 L. Ed. 515; Nutz v. Reutter, 1 Watts (Pa.) 229; Mellen v. Baldwin, 4 Mass. 480; Merritt v. Lumbert, 8 Greenl. (Me.) 129; Petts v. Ison, 11 Ga. 151, 56 AM. Dec. 419; but not after a finding for the plaintiff ; Wilkins v. Wain wright, 173 Mass. 212, 53 N. E. 397; or be cause of the death of a party after verdict ; Laidley v. Jasper, 49 W. Va. 526, 39 S. E. 169; but the death of defendant after deci sion, but before judgment, abates the suit ; Fox v. Hopkinson, 19 R. I. 704, 36 Atl. 824. After abatement by reason of the death of defendant, the duty of instituting proceedings for revival rests upon the plaintiff and not on the other defendants ; Wilkinson v. Vor dermark, 32 Ind. App. 633, 70 N. E. 538; Jameson v. Bartlett, 63 Neb. 638, 88 N. W. 860. When the defendant dies before serv ice, no jurisdiction has attached and the ex ecutor cannot be made a party ; Conaway v. Overton, 98 Fed. 574; Crowdus' Adm'r v. Harrison, 9 Ky. L. Rep. 58.
An action against a surgeon for malprac tice abates with the death of the defendant, whatever the form of the action ; Boor v. Lowrey, 103 Ind. 468, 3 N. B. 151, 53 Am. Rep. 519.
But where one of several co-defendants dies pending the action, his death is in gen eral no cause of abatement, even by common law; Cro. Car. 426; Bac. Abr. Abt. F; Gould, Pl. ch. 5, § 93; Tucker v. Utley, 168 Mass. 415, 47 N. E. 198. 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; Tor ry v. Robertson, 24 Miss. 192; Gould, Pl. ch. 5, § 93. Where one of several plaintiffs or defendants in error dies, the suit does not abate or require a revival in the Supreme Court; Prior v. Kiso, 96 Mo. 316, S. W.
898. 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 U. S., on the death of a sole defendant, his personal representatives may be substi tuted if the action could have been originally prosecuted against them; Gould, Pl. ch. 5, § 95. The common law rule is that the right of action against a tort-feasor dies with him; Jones v. Barmm, 217 Ill. 381, 75 N. E. 505; Hedekin v. Gillespie, 33 Ind. App. 650, 72 N. E. 143; Stratton's Independence v. Dines, 135 Fed. 449, 68 C. C. A. 161; and such death should be pleaded in abatement; O'Conner v. Corbitt, 3 Cal. 370. Many exceptions to this rule exists by statute. When a party has been so long dead as to require consent to revive, which is refused, it abates; New Hampshire Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137.
As to the effect of death of parties on suit, see 5 L. Ed. 256, note. And as to the sur vival of personal actions after the death of the plaintiff, see ACT10 PERSONALIS MORITIJS CUM PERSONA. As to the effect of the death of a party in suits for divorce, see that title.
Infancy is pleadable in abatement to the person of the plaintiff, unless the infant ap pear by guardian or prochein anvi; Co. Litt. 135 b ; 2 Saund. 117; 3 Bla. Com. 301; Schemerhorn v. Jenkins, 7 Johns. (N. Y.) 373; Hinman v. Taylor, 2 Conn. 357; Blood v. Harrington, 8 Pick. (Mass.) 552. He cannot appear by attorney, since he cannot make a power of attorney ; 3 Saund. 212; Young v. Young, 3 N. H. 345 ; Blood v. Harrington, 8 Pick. (Mass.) 552; Smith v. Van Houten, 9 N. J. L. 381; Schemerhorn v. Jenkins, 7 Johns. (N. Y.) 373. The death of the next friend bringing suit for minors does not abate suit, nor does the attainment of ma jority by minors; Tucker v. Wilson, 68 Miss. 693, 9 South. 898. 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 in fant are not affected, and therefore the adult is permitted to appoint an attorney for both; 3 Saund. 212; Cro. Eliz. 542. At com mon 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; Cro. Jac. 441. By statute, however, such judgment is valid, if for the infant ; 3 Saund. 212 (n. 5). A suit by a guardian to compel an ac counting by a guardian ad litem does not abate by reason of the death of the guardian or the majority of the ward; Smith v. Min geY, 72 App. Div. 103,- 76 N. Y. Supp. 194, order affirmed 172 N. Y. 650, 65 N. E. 1122.