Edes v. Durkee

8 N.H. 460

• Court: Superior Court of New Hampshire
• Decided: July 15, 1837
• Status: Published

Opinion

Richardson, C. J.,

delivered the opinion of the court.

This case is settled by the case of Clindenin vs. Allen, to which we have been referred, unless the statute of January 2, 1829, section 24, has altered the law. The provision ' in that act which is argued to have the effect of changing the law, is in the words following :

“ And in all cases where any party shall die, and the cause ‘ of action by law survives and is prosecuted by or against ‘ the executors or administrators, the attachment made on ‘ the original writ shall be and remain good, in the same ‘ manner as though such party had not died.”

It so happens that the statute of February 9, 1791, entitled an act regulating process and trial in civil causes, which remained in force until the said statute of January 2, 1829, was passed, had just such a provision in it. We have, therefore, the strongest reason to believe that this last statute was not intended to change the law in this respect.

But however this may be, there is no repugnance between the provision in the statute of 1822, and that in the statute of 1829.

The statute of 1822 provides that when an estate has been decreed to be administered in the insolvent course, all actions shall be dismissed and no further prosecuted.

The statute of 1829 provides that in all cases where a party dies, and the cause is prosecuted against his executor or administrator, the attachment shall remain good.

There is nothing inconsistent in the two statutes. In all cases where the action can be prosecuted, the attachment is to remain good. But when the estate is administered in the insolvent course, the action cannot be prosecuted.

The circumstance that the estate is administered in the insolvent course does not directly dissolve the attachment. 6 N. H. R. 459, Bowman vs. Stark.

But when an estate is so administered, all actions are to be dismissed, and in this way any attachments that may have been made in such actions are dissolved.

We are, therefore, of opinion that this action must be dismissed.