
    Thomas Peake vs. Peabody Keyes.
    Franklin,
    
      January, 1830.
    Where an appeal was taken from a judgement rendered by a justice of the peace to the county court, and while the action was pending there, the appellant died, and' the cause was discontinued by virtue of the statute, and the claim submitted to commissioners, who reported against the appellant, — it was held that the recognisance for the appeal was discharged.
    This was an action of debt on a bond of recognisance made and entered into by the defendant in case of an appeal from a judgement rendered by a justice ©f the peace in an action in favor of the ’plaintiff against one Danforth Ainsworth. The condition of the recognisance was, “ that if said Ainsworth 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, then the said recognisance to be void ; otherwise of force.” The declaration stated that after the appeal was entered in the county court, and before any judgement was rendered in the case, Ainsworth died, and his estate being represented insolvent by the administrator, the action was discontinued by virtue of the statute in such case provided; that the claim, for the recovery of which the suit had been brought, together with the costs which had accrued, was presented, as is provided by the statute, to the commissioners who had been appointed to settle and adjust the demands against the estate of Ainsworth, who allowed the same against said estate. The declaration averred that Ainsworth, at the time the appeal was taken, was solvent and able to pay the amount of the judgement, and that between that time and his death he became poor and totally insolvent.
    The defendant demurred to the declaration, and the plaintiff joined in demurrer. . The county court decided in favor of the plaintiff, and the case was reserved for the opinion of this Court.
   After argument,

Prentiss, Ch. J.,

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 the estate of Ainsworth, and the same was allowed by them, with the costs which had accrued in the action.

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 the cause of action survives, abates as at common law, and no remedy can be had upon the recognizance for the appeal. In the case of Jenny vs. Jenny, 14 Mass. 231, it was decided, that where the plaintiff in replevin dies pending liis action, if his executor or administrator be not summoned to come in, or do not voluntarily come in, to prosecute the su.it,, it ceases, and no action can be maintained on the replevin bond. If the executor or administrator appears, or is summoned to appear, the action may proceed to judgement on the merits. But where the defendant dies pending the suit, and his estate is represented insolvent, no further proceedings can be had in the action. The statute declares, that every action, pending against any person at the time of his decease, and which shall be pending at the time his estate is represented insolvent, shall be discontinued.—(Comp. Stat. p. 343, s. 53.) In such case, as the' statute directs that the action shall be discontinued, and there is consequently an end of the ease, the appeal is prosecuted as far as the law will allow j and whether it is considered that the condition of the recognizance has been performed, or that the performance of it has been prevented by the act of God, in connection with the provisions of law, it equally precludes any recovery against the bail for the appeal, whether the appeal was taken by the plaintiff or the defendant in the suit. If taken by the defendant, and the plaintiff’s suit was discontinued or abated, it is difficult to see how there could be any breach of the recognizance or any right of action in the plaintiff upon it. In such case, the plaintiff’s only course is to prove the claim, embraced in the action, against the defendant’s estate, under the commission; and although provision is made,, that the commissioners, in allowing or disallowing the claim, shall allow the party recovering, the costs of the action, to the time of the discontinuance, the allowance of the claim and costs by them is nota judgement in the action.

Royce & Read, for plaintiff.

Aldis & Davis, for defendant.

Judgement of the county court reversed, and judgement entered for the defendant.  