¶1*469The opinion of the Court was pronounced by
¶2The only questions to be decided are, whether the suit of Talitha Burnham, administratrix," became discontinued, by her marriage after the appeal, in as full a sense as would be effected by the natural death of a plaintiff, and a representation of his estate to be insolvent ; and whether, even in that case, as the marriage was "her voluntary act, it would relieve the bondsman.
¶3The Court consider, that her marriage was not a discontinuance of the action. It effected a total destruction of her right to prosecute the suit. But an administrator de bonis non might have been appointed, and could prosecute the suit as fully as she might have done, had there been no marriage. If sufficient time had not elapsed for such appointment, after her marriage, she might have entered her appeal, and the Court would, probably, have granted a continuance, to await such appointment. This case does not compare, at all, with that class of cases, of which Peake vs. Keyes was one. In those cases, the statute is imperative, that the action shall be discontinued ; not upon the decease of the plaintiff, merely, but upon his decease, and representation that his estate is insolvent. If there is no such representation of insolvency, and the action be of a nature which survives, it may be prosecuted by his executor or administrator, the same as though that special provision had been omitted in the statute. That is a convenient provision; because it carries both debt and cost-before the Commissioners for their adjustment, like claims that have never been sued. There is no such provision in case of the marriage of a feme sole administratrix : there is no necessity for it: for, as soon as one administration ceases, another may be created, and save the rights of both parties to the action.
¶4With regard to the second question, we entertain no doubts but that the marriage being voluntary on the part of Talitha, the administratrix, and not the act of God, or of the opposite party. The recognizor to prosecute the appeal was holden as firmly as security for costs in such an event, as in any other.
¶5Enoch Burnham, the appellee, might not know of the marriage, and nothing appears that he did know of it, *470when he procured the affirmance of the judgement. He cannot, therefore, be accused of making unnecessary cost, ' by filing his complaint for affirmance. It was his regular course, as a matter of right. It must be the regular course in all cases, where the action survives, and where there is not both the decease of the plaintiff and a representation that his estate is insolvent. That the cost, recovered before the justice, has been since paid, can have no other effect in this suit, than to diminish the sum now to be recovered.
¶6The judgement of the County Court was that the plea in bar was insufficient; and that judgement is now affirmed.