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8 N.H. 460

Edes v. Durkee

Superior Court of New Hampshire

Decided July 15, 1837

Superior Court of New Hampshire · decided 1837-07-15

The plaintiff in this case brought an action of assumpsit against Moses P. Durkee, and caused his estate to be attached by virtue of the original writ, which was returnable to the court of common pleas in the county of Sullivan, at October term, 1836. After the service of the writ, and previous to the said October term of the common pleas in said county of Sullivan, the said Moses P. Durkee died, and this defendant was appointed administrator of his estate.

Cited by 1 later decisions — most recently December 1863

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1837-07-15

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Richardson, C. J.,

¶1delivered the opinion of the court.

¶2This case is settled by the case of Clindenin vs. Allen, *462to 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.”

¶3It 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.

¶4But however this may be, there is no repugnance between the provision in the statute of 1822, and that in the statute of 1829.

¶5The 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.

¶6The 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.

¶7There 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.

¶8The circumstance that the estate is administered in the insolvent course does not directly dissolve the attachment. 6 N. H. R. 459, Bowman vs. Stark.

¶9But 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.

¶10We are, therefore, of opinion that this action must be dismissed.

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