Fernald v. Ladd

4 N.H. 145

• Court: Superior Court of New Hampshire
• Decided: September 15, 1827
• Status: Published

Opinion

Richardson, C. J.

It is very clear, that the cause of action in this cause does not survive against Ladd’s administrator. The rule is, where the action is for damages only in satisfaction of an injury done, the cause of action does not survive. Hambly v. Trott, Cowper, 371.

In Thayer v. Dudley, 3 Mass. Rep. 296, the case was that Dudley brought an action on the case against Thayer for placing logs in a highway, by means of which Dudley was thrown out of his chaise, and his ancle dislocated. A verdict was given for the plaintiff’, and the defendant, Thayer, brought his writ of review, and then died. It was moved that his administrator might be admitted to prosecute the writ of review ; but the court held that as the cause of action did not survive, the motion could not be granted, and ordered an entry to be made that the writ was abated by the death of the plaintiff in review.

The views of the legislature, on this subject, seem to have been in perfect accordance with the opinion of the supreme court of Massachusetts when our statute of June 21, 1797, was passed, for it is there provided that certain actions which are enumerated “ shall not abate by reason of the death of either party, but shall so far be considered as surviving that they may be prosecuted to final judgment and execution, and reviewed in the same manner as actions, the cause whereof doth by law survive, may be prosecuted and reviewed.”

Case for malicious prosecution is not mentioned in the said statute, and we are of opinion, that a writ of review cannot be, in this case, considered as a writ for the recovery of money so as to survive, and that the motion of the administrator in this case cannot be sustained. The entry must therefore be, that the writ of review is abated by the death of the plaintiff in review.