3 Vt. 317 | Vt. | 1830
After argument,
delivered the opinion of the Court. — *-The condition of the recognizance declared upon,is, that Ainsworth,who was defendant and appellant in the original action, should prosecute his appeal to effect, and answer and pay all intervening damages, occasioned to the plaintiff by his being delayed, with additional costs, in case judgement should be affirmed. It appears from the pleadings that Ainsworth entered the action in the ap-pelate court, and having died while it was pending there, and his estate being represented insolvent, the action was discontinued. The plaintiff thereupon exhibited his claim to the commissiners on
Where the cause of action, or the action itself, does not survive, it is very clear that no remedy can be bad upon the recognizance taken for the appeal, if the appeal is prosecuted until the death of the party, whereby the suit abates by the act of God. Indeed, where the condition of a replevin bond is to prosecute with effect, it is held that a prosecution of the suit until'it is abated by the death of one óf the parties is a prosecution with effect, and a performance of the condition.' — (Ormond vs. Brierly, Carth. 519; 12 Mod. 381.) But however this may be, it is a general principle that where a bond or recognizance is a thing in action, and execu-tory, and no advantage can be taken until there be a default in the obligor, if the condition is possible at the time of the making of it, and before the same can be performed, it becomes impossible, or is prevented from being performed, by the act of God, as by the death of the party, or by the act of the law, the obligation is saved. (Co. Lit. 206, a.; Bull. N. P. 164; 1 Saund. 216, n. 2.) Thus, amongst other instances which might be mentioned, a condition in a replevin bond, that the obligor shall prosecute his action of replevin to final judgement, is saved, by his prosecuting it until the suit is abated by the death of the defendant.—(Badlam vs. Tucker, 1 Pick. Rep. 284.) At common law, a suit, although the cause of action survives, abates by the death of either ¡party. But by statute, when a suit is commenced to, or pending in, any court, and either of the parties dies before final judgement, .the executor or administrator of the deceased party, in case the cause of action by law survives, is authorized, at the next term after probate of the .will, or granting of administration, to enter, rand .prosecute or defend the suit to final judgement ; and the court is empowered to hear and determine the same, and to render judgement for or against the .executor or andministrator, as the ¡case may require. And if the executor or administrator, after being duly served with a scire facias, twelve days'before the session of the court, shall neglect to become -a party to the suit, the .court may render judgement against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily become a party to the suit. — (Comp. Stat. p. 345, s. 61.) By this provision, it is not made the duly of the executor or administrator to appear, and prosecute or defend -the action, without notice; and unless he voluntarily comes in, or the surviving party sues out a scire facias to call him in, the suit, although
Judgement of the county court reversed, and judgement entered for the defendant.