Loomis v. Ives

32 Mass. 435

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1834
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. The suit having abated by the death of the original defendant, before the enactment of the statute, it was not an action then pending within the meaning of the statute. This act refers to St. 1822, c. 110, which clearly looks to the future death of the party, as the case in which it shall take effect. This avoids the charge of its being retrospective, or affecting existing rights. This was the principle recognised in the case of Holyoke v. Haskins, 9 Pick. 259. The statute there considered, authorized the heirs of persons who should after-wards decease, to come in, and this might apply as well to cases then pending, as to those which should be afterwards commenced.

By the general rule of the common law, an action of trespass abates by the death of the defendant. This rule is not avoided by the statute in the present case, because the death of the original defendant had occurred, and the suit been in fact abated, before the passing of the act.

All further proceedings stayed.