Upham v. Dodge

Dtjeeee, C. J. The demurrers raise the question whether an attachment bond, given under Gen. Stat. *623 R I. cap. 196, § 20, continues to be obligatory if the defendant in the action in which the bond is given dies before final judgment is recovered against him. The bond is given, on surrender of the property, attached to secure its return after judgment against the debtor unless the judgment is satisfied. The bond is void by its condition, if, “ after final judgment in the action in which such attachment shall have been rendered,” 1 the property is returned. The obligee, therefore, can maintain no suit on the bond until “ after final judgment in the action in which the attachment has been rendered.” In the case at bar the defendant died before final judgment, and his administrator being summoned in, judgment was entered against him. Was the judgment in legal contemplation a judgment in the action in which the attachment was made? In Vaughn v. Sturtevant, 7 R. I. 372, this court decided that an attachment of real estate in an action of assumpsit is dissolved by the death of the defendant before final judgment. The ground of the decision was, that at common law the death of the defendant would have abated the suit, which thereupon would have been dismissed completely out of court, and that our statute goes no further than to prevent the dismissal and allow the action to proceed against the executor or administrator, the same as if it had been commenced against him. Beyond this it was said the statute saves nothing of the incidents of an abatement. The action is conserved only by being converted into an action against the administrator, having only the remedies which are appropriate to such an action. After being so converted it is no longer the action in which the attachment was made. This is a technical construction, but it is not unreasonable. It is not denied that if the property had remained under attachment, it would have been released by the death of the defendant, and, by analogy, it would seem that the bond which represents the attachment should have the same privilege. It might make a great difference to the sureties whether the action was defended by the original defendant or his administrator; for the administrator, for want of information or interest, might lose a suit which his intestate would have won. As a contract of surety- *624 ship the bond is to be accurately if not strictly construed. Tucker v. White, 5 Allen, 322 ; Andre v. Fitzhugh, 18 Mich. 93. And it is to be remembered, moreover, that the law gives new and peculiar remedies, when the action proceeds against an executor or administrator, which, when the estate is insolvent, if not when it is solvent, are utterly inconsistent with the requirements of the bond. See Davenport v. Tilton, 10 Met. 320 ; Sweringen v. Administrator of Eberius, 7 Mo. 421. The plaintiff's demurrers to the defendant's third and fourth pleas are therefore overruled. The defendant's demurrer to the plaintiff's replication to the second plea is sustained, and judgment will be entered for the defendant for his costs. Footnotes [1] The words of the statute.