delivered the opinion of the court.
This аction is for malicious prosecution brought by the plaintiff against the defendant in the Law Court of Humboldt.
Verdict and judgment were in favor of thе defendant, and the plaintiff has appealed to this court.
The death of defendant Stewart has been suggested and admitted, and his counsel have entered a motion to аbate the suit because at common law such a suit cannot be revived, but abates by thе death of either party, and that sec. 2846 of the Code does not except it from the operation of the common law rulе. That section provides that no civil aсtions commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived.
Libel and slander unquestionably fall within the definition of the excepted cases in the statutes. . The actions in such cases are brought directly and solely to recover damages for defamation of character.
But the statute does not specify these cases or others аs falling within the exceptions provided for. The language is “ wrongs affecting the character,” and the question is, does the wrong comрlained of by plaintiff affect his charaсter. The declaration charges that defendant maliciously procured his arrest, indiсtment, and
Upon the trial of this case, if the plaintiff had made good his сharges, he would have been entitled to recover damages from defendant “ for thе peril occasioned him in regard to his lifе or liberty, for the injury of his reputation, his feelings, and his person, and for all the expenses tо which he has been necessarily subjectеd.” 2 Gr. Ev., sec. 456. Being entitled to recover damages “ for injury to his reputation,” his reputation or character, in contemplation of law, was affected by the wrongs complаined of in the declaration, and the action or suit abated by the death of defendant.
The judgment will therefore be that the suit abate, and judgment will be rendered for the costs of this сourt and the court below against plaintiff and his sureties upon his respective bonds for the prosecution below and for his appeal to this court. Code, secs. 3209, 3196, a, b, c.