Buswell v. Babbitt
Supreme Court of New Hampshire
Motion to dismiss the action for want of service on the defendant. January 22, 1889, the defendant’s estate was attached on the writ, but personal service was not made on him until March 13,'1889. Between January 22 and March 13 the plaintiff died. His administrator appears and prosecutes the suit. The motion was denied, and the defendant excepted.
1Opinion of the CourtSmith, J.
“ Every administrator may prosecute or defend any action pending in any court for or against the deceased, whether the cause of action does or does not survive, if he or the surviving party so elect . . . .” G. L., e. 198, s. 16. This action was pending when the original plaintiff died. An action is commenced when the writ is filled ready for service and intended to be served. The intention and the act combined constitute the institution of the suit. Soc. Prop. Grospel v. Whitcomb, 2 N. H. 229, 230. The word “pending” means “remaining undecided.” Clindenin v. Allen, 4 N. H. 385, 386. The…
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