6 N.H. 459 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
If Patten Hall were now alive, and no third person had acquired any interest in the land since the 29th September, 1829, perhaps the amendment, which the defendant moves to have made, might be permitted. But Patten Hall is now dead, insolvent, and if nothing has now passed by this extent his creditors have acquired an interest in the land which we cannot lawfully take from them by permitting such an amendment. Their claim to have the land applied to the payment of their debts is just and legal, and it does not belong to the exercise of any sound discretion, which a court possesses to deprive them of such a claim, and give the land to one, who has no legal title. No authority has been cited, no authority can be found, to sanction such an amendment.
But in this case the attachment was not dissolved by the death of the debtor. It is provided by statute, that attachments shall remain valid even in cases where a par
The attachment in this case was not dissolved by the insolvency of the debtor’s estate. When an estate has been decreed by the judge of probate to be administered in the insolvent course, all actions pending against the estate are to be discontinued ; and in this way an attachment may be defeated. 4 N. H. Rep. 389.
But the circumstance, that the estate, in this case, was, after judgment, decreed to be administered in the insolvent course had no effect upon the attachment.
The debtor, in this case, died after having appointed an appraiser. If it had been otherwise, the creditor, in order to save his attachment, must have caused the land tobe seized by virtue of the execution within thirty days after judgment, and then in case no one came forward to take administration, must have procured some one to take administration in order that an appraiser might have been appointed on behalf of the estate. And in this way the extent might have been completed had no appraiser been .appointed*-by the debtor himself. 3 N. H. Rep. 279, Daniels v. Ellison,
The extent, in this case, was completed within thirty days after the judgment, and, under all the circumstances, we see no valid objection to it.
Judgment for the defendant.
