
    Zephaniah Thayer, Plaintiff in Review, versus John Dudley.
    Where the plaintifl in review dies pending the review, the original action being case for special damage from a common nuisance, in which the plaintiff in review was defendant, his administrator cannot become a party to the review.
    The original action was case against Thayer, for placing sundry logs in a highway in Cambridge, by means of which the plaintiff, Dudley, was thrown out. of his chaise, his ankle dislocated, his chaise broken in pieces, &.c. A verdict was given for the plaintiff, and the defendant, Thayer, brought his writ of review at April [ * 297 ] term, 1804, from whence * it was continued to the succeeding November term, when it was suggested on the record that the plaintiff in review had died since the last continuance. At the succeeding term [April, 1805]", Charles Bond, who had been appointed administrator of the estate of the deceased appeared, and moved the Court to be admitted to prosecute the review. The cause has stood continued until this term.
    And now, Dana, of counsel for the plaintiff in review, cited the case of Monumoi vs. Rogers 
      , and he suggested a distinction, that although actions founded on a tort die with the party, yet that after judgment the right survives to the executor or administrator. The words of the statute  are very general, and extend to every action, real and personal.
    
      Ward, on the other side,
    confessed that the words of the statute were broad enough to comprehend this case; but he contended that the construction given to the former statutes providing for reviews, the language of which was equally comprehensive, had always restrained them to actions which by law survive to the executor or administrator. And he believed the Court would adhere to a similar construction of the present statute, rather than, by a contrary decision, overthrow one of the most settled principles of the law .
    By the statute of 1783, c. 32, <§> 10, provision is made for the executors and administrators of a deceased party to prosecute or defend suits which were pending at the time of the party’s decease; but the provision is expressly limited to cases where the cause of action survives. So in .the statute of 1783, c. 59, § 1, the same limitation is contained in the provision authorizing the Court to enter up judgment against the estate of a party dying, where the executor or administrator neglects, after notice, to become a party.
    
      
       1 Mass. Rep 159.
      
    
    
      
      
         1788, ch. 47.
      
    
    
      
      
         1 Black. Comm. 91.
      
    
   Sedgwick, J.

The case cited from 1 Mass. Rep. was one where the cause of action survived, which is certainly not true in the present case.

Curia.

Dudley, the original plaintiff, having, in an action for a tort, recovered judgment against Thayer, he brought * this review, and dying while it was pending, his admin- [ * 298 ] istrator now moves the Court to prosecute, it.

His motion is founded on the statute of 1788, c. 47, <§> 3, by which it is provided that pending a writ of review in a personal action, if either party die, his executor or administrator may come in and prosecute or defend the same. The words of this section are sufficiently extensive to support the motion of the administrator; but they ought to receive such construction as is consistent with other statutes on this subject.

When a personal action, which does not survive, is pending, and either party dies, it is admitted, in consequence of the restrictive words of the statute of 1783, c. 32, that the executor or administrator cannot either prosecute or defend. And we are desired to give this statute a construction, by which, if judgment had been against the plaintiff, his administrator might review, and call the original defendant to answer, when if the plaintiff had died before judgment, the writ must have abated. Surely this could not be the intention of the legislature. Suppose the plaintiff had sued an action of slander-, and died before judgment, it is agreed that his administrator could not afterwards prosecute the action; but it is urged that in consequence of this last statute, if the defendant had recovered judgment against the plaintiff, and the plaintiff had then died, his administrator might review the action, and call on the defendant to answer for defaming the intestate. A construction having this effect we cannot give to this statute, but must confine this provision respecting personal actions to such, where the cause of action survives.

By thus restraining the general words, we adopt a construction similar to that of the provincial statute of 13 G. c. 6, and 1 G. 2, c. 9. By those statutes, executors and administrators might prosecute or defend all actions pending at the death of either party. The words are as general as those of the statute of 1788; the restrictive clause contained in the statute of 1783, confining its provisions to personal actions in which the cause of action survives, not being inserted. Yet the contemporaneous and uniform construction of the provincial statutes confined their operation to personal actions, in which the cause of action survived.

[ * 299 ] * The motion cannot be granted, and judgment must be entered that the writ of review is abated by the death of the plaintiff in review . 
      
       [Vide Barnard vs. Harrington, ante, 228.—Pitts vs. Hale, post, 321.—Ed.]
     