A claim for money paid as usury survives against the estate of the person to whom it was paid; Roberts v. Burton's Estate, 27 Vt. 396 ; and so does an action against a jus tice of the peace on his official bond for neg lect of duty; State v. Houston, 4 Blackf. (Ind.) 291. The liability of a deceased joint debtor survives ; Megrath v. Gilmore, 15 Wash. 558, 46 Pac. 1032 ; and the right of action of a joint payee ; Sniper v. Coates, 93 Minn. 76, 100 N. W. 662 ; and of the sur vivor of two joint parties to a contract ; Northness v. Hillestad, 87 Minn. 304, 91 N. W. 1112.
In an action on a contract commenced against joint defendants, one of whom dies pending the suit, the rule varies. In some of the states the personal representatives of the deceased defendant may be added as par ties and the judgment taken against them jointly with the survivors ; Smith v. Crutch er, 27 Miss. 455 ; Bennett v. Spillars, 9 Tex. 519 ; Ewell v. Tye, 76 S. W. 875, 25 Ky. L. Rep. 976; Strause v. Braunreuter, 14 Pa. Super. Ct. 125. In others the English rule obtains which requires judgment to be taken against the survivors only; and this is con ceived to be the better rule, because the judg ment against the original defendants is de bowls propriis, while that against the ex ecutors is de bonis testatoris; New Haven & N. Co. v. Hayden, 119 Mass. 361.
The death of one of several defendants works a severance and the plaintiff should either dismiss as to all except the adminis trator, or proceed against the living de fendant only ; Marcy v. Whallon, 115 Ill. App. 435.
Where action pending against two part ners, and the death of one is not suggested before judgment, the judgment is a lien on the partnership assets and binds the surviv ing partner personally ; Sullivan v. Susong, 40 S. C. 154, 18 S. E. 268. On the death of a joint owner of a mortgage debt, it sur vives at law to the remaining owners who alone can sue for it ; Cote v. Dequindre, Walk. Ch. (Mich.) 64 ; Martin v. McReynolds, 6 Mich. 70. This is under a statute whereby mortgages are excepted from the provision that grants to two or more persons are to be construed to create estates in common. In a upon an English case where the personal representative was held to be a necessary party, as he would in equity be entitled to the decedent's share of the debt when collected (1 Beay. 539), the Michigan
court says: "The reason given for the deci sion is true in point of fact, but the conse quence deduced from it does not follow." In an action commenced against directors, where one dies after the suit commenced, his executor need not be joined ; Githers v. Clark, 158 Pa. 616, 28 Atl. 232. On the death of a joint guarantor, the action cannot be revived against his representatives ; Ameri can Copper Co. v. Lowther, 25 Misc. 441, 54 N. Y. Supp. 960, affirmed, and in a joint bond, if one obligor die, the debt survives, but the facts must be pleaded ; Bentley v. Harman son's Ex'rs, 1 Wash. (Va.) 273.
ToaTs.—The ancient maxim which we are discussing applies more peculiarly to cases of tort. It was a principle of the common law that, if an injury was done either to the person or property of another for which damages only could be recovered in satis faction,—where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty,— the action died with the person to whom or by whom the wrong was done. See Wms. Exec. 668 ; 3 Bla. Com. 302 ; 1 Saund. 216, 217, n. (1); Viner, Abr. Executors 123; Comyn, Dig. Administrator, B. 13.
But if the goods, etc., of the testator taken away continue in specie in the hands of the wrong-doer, it has long been decided that replevin and detinvue will lie for the executor to recover back the specific goods, etc. ; W. Jones 173, 174 ; 1 Saund. 217; Trigg v. Con way, 1 if empst. 711, Fed. Cas. No. 14,173; Noland v. Leech, 10 Ark. 504 ; or, in case they are sold, an action for money had and received will lie for the executor to recover the value ; 1 Saund. 217. And actions ex delicto, where one has obtained the property of another and converted it, survive to the representatives of the injured party, as re plevin, trespass de bonis asport. But where the wrong-doer acquired no gain, though the other party has suffered loss, the death of either party destroys the right of action; Taylor v. Lowell, 3 Mass. 351, 3 Am. Dec. 141; U. S. v. Daniel, 6 How. (U. S.) 11, 12 L. Ed. 323 ; Middleton's Ex'rs v. Robinson, 1 Bay (S. C.) 58, 1 Am. Dec. 596 ; Mellen v. Baldwin, 4 Mass. 480; McEvers v. Pitkin, 1 Root (Conn.) 216.