Connecticut & Pas. Rivers Railroad v. Administrator of Bliss

24 Vt. 411

Opinion

By the Court.

In this case it seems to us, that the basis of the audita querela being altogether personal, did die with the person, and that the administrator could not have prosecuted it, after the death of the intestate. And so it could not thereafter be determined whether the plaintiff had a good ground of bringing the audita querela, and so the case must of necessity die with the plaintiff, and the complainants have no ground to claim to hold the plaintiff in the audita querela, or his bail upon the recognizance, after suit has been prosecuted as far as the law requires; i. e., till by a providential occurrence the writ became useless, or the remedy was needless, and the very thing it was intended to hinder became impossible.

We have no doubt writs of error and audita querelas, may be prosecuted by executors and administrators, when they go to the foundation of the judgments.

The complainant has no more ground of complaint here than in any case where the plaintiff, in a personal action dies, after having given bail for costs, or if appealed or reviewed for intervening damages. Some assumpsits survive, and some, as for breach of promise for marriage, do not.

Judgment affirmed.