The affidavits leave it doubtful whether the defendant died after the cause was submitted for decision. But independent of that consideration, I think the rule laid down in Spalding v. Congdon, 18 Wendell, 543, should not be applied to a case like this. It should be confined to cases where the judgment is final, as where a verdict has been rendered or a nonsuit ordered, which is confirmed by the court on a motion for a new trial; or where judgment is rendered on a special verdict, demurrer to evidence, or a writ of error. In such cases, if a party die while the cause is sub judice, the judgment may be entered as of a time anterior to his death. But, according to the present practice, judgment on demurrer is seldom final. The party usually has leave, as the defendant had in this case, to amend on terms. A party very often demurs where he has a good answer on the merits to the pleading which he deems objectionable, and if the demurrer is not frivolous, it is almost a matter of course to allow the party, whether plaintiff or defendant, to withdraw the demurrer and plead. In cases where-we do not hold the judgment final if the party were alive, it would be extremely harsh to give it that operation in the event of his death. The suit has abated by the death of the defendant, and the plaintiffs must take their remedy against his personal representatives.
Motion denied. .