ant." Although technically sounding in tort, an action for injury to property survives under the New York statute in the same manner as an action on contract.98 The statute has changed the practice in this respect, for at common law all personal actions die with the party.99 -So, at common law, in actions ex delicto, where the wrongdoer acquired no real gain, although the injured. party may have much loss, the death of either party destroyed. the right of action.100 In Colorado, the general rule is that actions at law do not die with the person. The exceptions are specified by statute.101

§ 491. Abatement-Death of sole plaintiff.-On the death of a sole plaintiff, the action may be continued in the name of the representative of the decedent,102

§ 492. Abatement-Death of sole defendant. On the death of sole defendant before verdict or judgment, his representatives cannot be substituted against the wishes of plaintiff, unless the defendant has acquired some rights in the litigation, as where a counterclaim has been pleaded.103 An action in such case for the recovery of possession of specific personal or real property wholly abates.104 It is otherwise in California. Section 1584

97 Williams v. Kent, 15 Wend. 360. 98 Haight v. Hayt, 19 N. Y. 464; Cregin v. Brooklyn etc. R. R. Co., 75 N. Y. 192, 31 Am Rep. 459. See Hess v. Lowrey, 122 Ind. 225; 17 Am. St. Rep. 355, 23 N. E. 156, 7 L. R. A. 90; Lee v. Hill, 87 Va. 497, 24 Am. St. Rep. 666, 12 S. E. 1052.

99 Wilber v. Gilmore, 21 Pick. 250; Mason v. Union Pacific Ry. Co., 7 Utah, 77, 24 Pac. 796.

V.

100 Middleton v. Robinson, 1 Bay (S. C.) 58, 1 Am. Dec. 596; Mellen v. Baldwin, 4 Mass. 480; Holmes Moore, 5 Pick. 257; Hamilton V. Jones, 125 Ind. 176, 25 N. E. 192; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Jones v. Townsend, 23 Fla. 355, 2 South. 612.

101 Kelley v. Union Pacific Ry. Co., 16 Colo. 455, 27 Pac. 1058; Munal v. Brown, 70 Fed. 967. See, also, Mont. Code Civ. Proc., § 587; Overlock v.

Shinn, 28 Wash. 205, 68 Pac. 436; Jones v. Miller, 35 Wash. 499, 77 Pac. 811.

102 Ridgeway v. Bulkley, 7 How. Pr. 269; Banta v. Marcellus, 2 Barb. 373; Bain v. Pine, Hill, 616; Jarvis v. Felch, 14 Abb. Pr. 46; Reed v. Butler, 11 Abb. Pr. 128; Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55; Cockrill v. Clyma, 98 Cal. 123, 32 Pac. 888; Campbell v. West, 93 Cal. 653, 29 Pac.

219.

103 Livermore v. Bainbridge, 61 Barb. 358. Substitution of personal representative of deceased defendant. See Strong v. Eldridge, 8 Wash. 595, 36 Pac. 696; Mitchell v. Schoonover, 16 Or. 211, 8 Am. St. Rep. 282, 17 Pac. 867. The death of the defendant after levy of an attachment does not vacate or dissolve it. Id.

104 Hopkins v. Adams, 5 Abb. Pr. 351; Mosely v. Mosely, 11 Abb. Pr.

of the Code of Civil Procedure provides that "any person or his personal representatives may maintain an action against the executor or administrator of any testator or intestate, who, in his lifetime, has wasted, destroyed, taken, or carried away, or converted to his own use, the goods and chattels of any such person, or committed any trespass on the real estate of such per"In an action to recover damages for death by a wrongful act, the action may be continued against personal representatives of defendant.105

son.

$493.

Abatement-Death of one of several defendants.-In case of the death of one of several defendants, the action may be continued as to the others.106 Where defendants are executors, trustees, joint tenants, or copartners, the action continues against the survivors, 107

§ 494. Abatement-Death of husband.-A wife may proceed or not, at her election, and is not liable for costs if she refuses.108 A demand in right of the wife does not abate on death of the husband." If, after a decree of divorce, directing division of the common property, the husband dies, the heirs must be substituted as parties in his stead.110

109

111

§ 495. Abatement-Death of wife.-An action against husband and wife, for the debt of a wife contracted while a feme sole, abates on her death, before judgment. The death of a wife without issue living defeats a recovery by the husband in an action. for the homestead.112

$ 496. Abatement-Death of appellant. In action on a personal tort, on the death of appellant during an appeal from a judgment against him, the appeal may be continued by his representatives in their name.113 The death of appellant after

105; Putnam v. Van Buren, 7 How. Pr. 31; Mosely v. Albany Northern R. R. Co., 14 How. Pr. 71.

105 Yertore v. Wiswall, 16 How. Pr. 8; Doedt v. Wiswall, 15 How. Pr. 128. 196 Gardner v. Walker, 22 How. Pr. 405; Gordon v. Sterling, 13 How. Pr. 405.

107 Lachaise v. Libby, 13 Abb. Pr. 7; Buckman v. Brett, 13 Abb. Pr. 119.

argument of the case upon appeal, does not constitute a ground for delaying decision or departing from the ordinary course of procedure. Judgment may be entered, but it should be on a day anterior to appellant's death.114

§ 497. Abatement-Death before trial.-Where plaintiff in an action died before trial, and the subsequent order for judgment contained a recital as follows: "This action having been continued, in consequence of death of plaintiff, by his executor, Samuel Webb, and jury having found verdict for plaintiff, and then awarded judgment in favor of plaintiff," it was held that the recital sufficiently showed a suggestion of death of original plaintiff, and continuance and revival of the cause in the name of the executor.1 115 The remedy of a son for any cause of action individually for his own suffering caused by the mutilation of his father's body, is by action in the court of original jurisdiction, and not by substitution as plaintiff, on death of his mother, in an action commenced by her, for her own suffering, and pending on appeal at the time of her death.1

116

§ 498. Abatement-Death before argument. The rule is different if the death occurs previous to argument. In that event, proceedings can only be had upon leave given after suggestion of death is made.117

§ 499. Abatement-Death after verdict.-In California, where a party to an action dies after verdict or other decision thereon, judgment in pursuance of such verdict or decision may nevertheless be rendered, as provided in section 202 of the Practice Act, without becoming a lien on the real property of the deceased;118 but in no other such case can judgment be rendered so as to affect the interests of the representatives or successors of the party deceased, without the proper substitution of such representatives or successors.119

the United States Supreme Court, see Green v. Watkins, 6 Wheat. 260, 5 L. Ed. 256; McKinney v. Carroll, 12 Pet. 66, 9 L. Ed. 1002. As to limitation of time for suggestion of death, see Phillips v. Preston, 11 How. 294, 13 L. Ed. 702.

14 Black v. Shaw, 20 Cal. 68; Bach v. Gregory, 2 Abb. Pr. 203.

115 Sanchez v. Roach, 5 Cal. 248; Gregory v. Haynes, 21 Cal. 443. 116 Jones v. Miller, 35 Wash. 499, 77 Pac. 811.

117 Black v. Shaw, 20 Cal. 68; Warren v. Eddy, 13 Abb. Pr. 28.

118 Cal. Code Civ. Proc., § 669.

119 Judson v. Love, 35 Cal. 463.

§ 500. Abatement-Death before or after judgment.-Death of defendant before judgment destroys the lien of an attachment, and the property passes into possession of the administrator.120 The death of a party before judgment, when presumed, though not proved, renders any subsequent proceedings irregular.121 The death of a party after hearing, but before actual decision, works no abatement; judgment may be entered nunc pro tunc.122 Death of party after decree works no abatement.123 An action for divorce cannot survive the death of either party, and where the plaintiff in such action dies subsequent to the entry of a judgment decreeing a divorce in her favor the court is deprived of all power to review its action and determine her right to a divorce.124

§ 501. Death pending supplementary proceedings. The proceedings abate on the death of sole judgment debtor.125

§ 502. Death of party in equitable actions. In equity the suit does not abate by death of a co-plaintiff or co-defendant; the suit may be amended by adding the necessary parties.126

§ 503. Abatement-Party civilly dead.-When plaintiff or defendant is sentenced to state prison, the action abates.127 But this cannot be pleaded by the party so civilly dead, it must be by his representatives.128 A corporation cannot relieve itself of liability to suit by simply going out of business.129 And the appointment of a receiver of a corporation does not prevent suit against it upon an obligation entered into prior to the receivership.130

120 Myers v. Mott, 29 Cal. 359, 89 Am. Dec. 49; Hensley v. Morgan, 47 Cal. 622; Ham v. Cunningham, 50 Cal. 365. Compare Mitchell v. Schoonover, 16 Or. 211, 8 Am. St. Rep. 282, 17 Pac. 867.

121 Gerry v. Post, 13 How. Pr. 118. 122 Ehle v. Moyer, 8 How. Pr. 244; Diefendorf v. House, 9 How. Pr. 243; Crawford v. Wilson, 4 Barb. 504.

123 Cowell v. Buckelew, 14 Cal. 641; Thwing v. Thwing, 18 How. Pr. 458, 9 Abb. Pr. 323; Lynde v. O'Donnell, 21 How. Pr. 34, 12 Abb. Pr. 286.

124 Kirschner v. Dietrich, 110 Cal. 502, 42 Pac. 1034.

125 Hasewell v. Penman, 2 Abb. Pr. 230.

126 Fisher v. Rutherford, Baldw. 188, Fed. Cas. No. 4823.

127 Graham v. Adams, 2 Johns. Cas. 408; O'Brien v. Hagan, 1 Duer, 664. 128 Freeman v. Frank, 10 Abb. Pr. 370.

129 Jones v. Spartanburg Herald Co., 44 S. C. 526, 22 S. E. 731.

130 Allen v. Olympia Power Co., 13 Wash. 307, 43 Pac. 55.

§ 504. Abatement-Suggestion of death. It is regular and proper to suggest the death of a party to an action in any court, and at any stage of the proceedings, and the death of a party occurring before the appeal taken may be shown in the appellate court by affidavit of the fact.131

§ 505. Substitution of party and revivor.-A party substituted as plaintiff on death of the original plaintiff, is not required to file new pleadings. 132 An order continuing an action against the estate of defendant is void unless made upon notice to the representatives of decedent, and judgment secured thereafter is of no effect.133

§ 506. Duress, what amounts to.-Duress is personal restraint, or fear of personal injury or imprisonment.13 Duress of imprisonment is where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond, or the like, he may allege this duress and avoid the bond.135 But if a man be legally imprisoned, and, either to procure his discharge or on any other fair account, seal a bond or deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.130

Duress per minas, which is either for fear of loss of life or else for fear of mayhem or loss of limb, must be upon sufficient reason.137 Lord Coke adds to these, fear of imprisonment.138 In order to avoid a note on the ground that it was procured by menace of arrest or imprisonment, it must appear that the menace was of unlawful imprisonment, and that the maker was put in fear of such imprisonment, and was thereby induced to execute it.139 An abuse of process against the person to compel

131 Judson v. Love, 35 Cal. 463; Shartzer v. Love, 40 Cal. 96; Taylor v. Western Pacific R. R. Co., 45 Cal. 323.

132 Warren v. Robison, 25 Utah, 205, 70 Pac. 989.

133 Symes v. Charpiot, 17 Colo. App. 463, 69 Pac. 311.

134 Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445. See, generally, as to what constitutes duress, McClair v. Wilson, 18 Colo. 82, 31 Pac. 502; Joannin v. Ogilvie, 49 Minn. 564, 32 Am. St. Rep. 581, 52 N. W. 217, 16 L. R. A.

376; Barrett v. Weber, 125 N. Y. 18, 25 N. E. 1068.

135 Craig v. Ward, 9 Johns. 201; Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373.

136 Coke, 2 Inst. 482; Hollingsworth v. Napier, 3 Caine, 182, 2 Am. Dec. 268; Watkins v. Baird, 6 Mass. 511, 4 Am. Dec. 170; Eddy v. Herrin, 17 Me. 338, 35 Am. Dec. 261. 137 1 Bl. Com. 131. 138 Coke, 2 Inst. 483.

139 Knapp v. Hyde, 60 Barb. 80. See, also, Landa v. Obert, 45 Tex. 539.