At the commencement of this action, which was brought upon several promissory notes, a writ of attachment was issued and levied upon certain real and personal property of the defendant. After the service of the summons and the attachment, but before the time for answering had expired, the defendant died intestate. His wddow was appointed as administratrix of his estate, and upon his death being suggested, the action was continued against his administratrix. The notes were presented to the administratrix for allowance as claims against the estate, and were rejected; and, although she subsequently and before judgment indorsed her allowance on the notes, that will not affect the merits of the case, but would go only to a question of costs. The Court having denied the defendant’s motion for a dissolution of the attachment, rendered judgment for the plaintiff, which was substantially as follows: That the plaintiff recover of the defendant the amount of the promissory notes, to be paid in the gold coin of the United States; that the Sheriff proceed to sell in like manner as under .execution the personal property taken under the attachment; .that if the personal property should be insufficient for the satisfaction of the judgment, he should in like manner proceed to sell the real property attached ; that if the proceeds of such sales should be insufficient to satisfy the judgment, the balance of the judgment be paid in due course of administration; and that any surplus remaining after the satisfaction of the judgment out of the proceeds of the sales, be paid to the administratrix.
The defendant appeals from the judgment, and from the order refusing to dissolve the attachment. The order is not an appealable order, (Alender v. Frits, 24 Cal. 447,) but all the material points made in regard to the attachment arise also in the appeal from the judgment.
*363 Form of judgment against an administrator.
The first question we shall consider relates to the form in which the judgment for the amount due upon the promissory notes ought to be rendered. It will be seen that the complaint is, in substance, the usual complaint upon a promissory note in a suit by the payee against the maker, and contains no allegations entitling the plaintiff to any relief beyond the ordinary judgment in personam.
The suggestion of the death of the maker of the notes, and the substitution of his administratrix, and the continuance of the suit against her, subjected the proceedings to such rules of the Probate Act as are applicable to proceedings for the collection of claims against an estate of a deceased person. It was in this view that the plaintiff presented Ms claim to the administratrix for allowance. An administratrix is the creature of the Probate Act, and her liability must be measured by that Act. There is no provision in the Act subjecting her to a judgment in personam, upon the sole ground that the estate of the deceased is indebted to the plaintiff. Under any system with which we are acquainted, the further allegation of assets, a devastavit, or some other ground of personal responsibility, is necessary to support such a judgment. But this point is settled by section one hundred and forty of the Probate Act, which provides that “ the effect of any judgment rendered against any executor or administrator, upon any claim for money against the estate of his testator or intestate, shall be only to establish the claim, in the same manner as if it had been allowed by the executor or administrator, and the Probate Judge, and the judgment shall be that the executor or administrator pay, in due course of administration, the amount ascertained to be due.”
The judgment should have been rendered in the form indicated in that section, for the section is mandatory, and specifies the only judgment that may be rendered against the executor or administrator, on a claim against the estate.
*364 Judgment enforcing attachment lien.
The next question is whether that portion of the judgment ordering the property that had been attached, to be sold for the payment of the judgment, is authorized by law. No provision of the Practice Act is cited that justifies such an order. When the judgment is rendered against the debtor in his lifetime, we find no authority for an order of that character in an action of the nature of the one before us, and it is difficult to see how the mere fact of the substitution of the legal representative in the place of the debtor could authorize the order without the aid of a statutory provision permitting it. The principle is cardinal and uniform that the judgment for the plaintiff must be founded on and authorized by the allegations of the complaint. The attachment and levy formed no part of the pleadings and were not competent evidence of any fact stated therein, but came before the Court incidentally and on a motion that had no relation to the merits of the action. The order is in its nature a decree enforcing a lien, and is as clearly unauthorized as would have been a decree enforcing a vendor’s lien, if it had happened in the case that the plaintiff in proving the consideration of the notes had shown that they were given for the purchase money of certain real property belonging to the estate of the intestate. The impropriety of the judgment is made manifest by supposing that a portion of the attached property is exempt from execution, that another portion is the separate property of the widow of the deceased, and that a portion or all of the real property attached constituted the homestead of the deceased and his wife. Certainly those questions could not be tried without proper issues were framed, and it is impossible to see how the administratrix could have raised them in the suit on the notes, unless she is required to answer not only the complaint, but the Sheriff’s return to the attachment also. This she would be bound to do or be precluded thereafter from asserting her claim to the property, by the judgment of the Court ordering the property to be sold, if such judgment, based upon the single fact that *365the property has been seized under attachment, can be maintained. The Court, in rendering judgment in an action in which an attachment has been procured and served, has no duty to perform in reference to the attachment proceedings. The Sheriff does not act in obedience to the judgment, but to the behests of the statute, in enforcing the attachment lien, by the sale of the property attached.
This virtually disposes of the appeal, but to rest the cause here would leave the real point of controversy untouched, and it would necessarily arise on further proceedings, surrounded, perhaps, with additional difficulties. The question is, whether the attachment lien survives, in case of the death of the defendant, before the expiration of the time for filing his answer in the action in which the attachment issued.
An attachment is a process under which the debtor’s property may be seized and held as security for the satisfaction of any judgment that may be recovered against him in the action, unless he give security for the payment of the judgment, in the manner provided by the statute. Its scope, purpose and effect; its capacity to create a lien ; the efficacy, duration and the mode of enforcement of the lien, are not other or greater than the statute has prescribed. The plaintiff cannot claim as matter of right the benefit of the attachment, as something growing out of or necessarily connected with the contract, as he may the benefit of an action to recover his debt; for the attachment is merely an auxiliary to the action, and the Legislature may give, withhold or limit it, at their pleasure, without impairing any substantial right of either party. The lien acquired by means of the attachment does not necessarily attend the action, without regard to the judgment that may be rendered. Its purpose is to secure the payment of the judgment, and this is accomplished by its holding the property until the judgment is rendered—and in case of real property, until the judgment is or may be docketed—so that the attached property may be taken and sold under an execution to be issued upon the judgment. No property may be taken in attachment that is not liable to seizure under the execution *366when issued; and the only way in which the levying of the attachment upon the property operates as security for the satisfaction of the anticipated judgment, is by its capacity to hold the property to await the execution to be issued. This is necessarily implied by section one hundred and thirty-two, providing for the sale of the attached property, and no other mode than a sale under execution is provided by the statute, for enforcing the attachment lien upon property held under the writ. Property that has been converted into money, because the interests of the parties required its sale while held under attachment, forms no exception to the usual course of proceedings respecting property held under attachment, for the money in the officer’s hands, though not required to be levied upon under the execution, because not required to be sold, can be applied to the satisfaction of the judgment only when the plaintiff is entitled to an execution, and it is appropriated in the same manner as when made under the execution. When the action is of such a character, or when its condition has become such, by reason of a change of parties or other cause, that a judgment in personam camjot be rendered against the defendant, an execution in the usual form, commanding the Sheriff to satisfy the judgment by a seizure and sale of the personal and real property of the defendant, is not authorized to be issued. A personal judgment against the administratrix in this case was not the kind of judgment, as we. have seen, that the statute required or permitted, but it should have been, that the amount ascertained to be due to the plaintiff be paid by the administratrix in due couse of administration. A payment in the due course of administration, means the payment by the legal representative of the deceased, acting under the orders of the Probate Court, out of the assets of the estate of the deceased, and in the manner and order that other debts of the same rank are by the Probate Act required to be paid. It will not be contended that a judgment in that form, authorized the issuing of an execution; and, indeed, it is directly forbidden by section one hundred and forty of the Probate Act, to be issued.
*367 Death of defendant destroys the lien of an attachment.
It necessarily results from these statutory provisions and legal principles, defining the character and purpose of the attachment lien and the mode of its enforcement, that whenever the case is such that a judgment cannot be legally rendered, that will authorize an execution against the personal and real property of the defendant, the attachment lien at once ceases. There is nothing in the Practice Act that countenances the idea that the attachment is of the nature of a common law distress of the defendant’s property, to be held until he pays the plaintiff’s demand, but it is held in order that it may be subject to execution. When that purpose is impossible of accomplishment the right to hold the property for that purpose ceases.
The effect on the attachment, of the death of the defendant, before judgment, is considered in several cases cited in Drake on Attachment, (Sec. 433,) and in most of them it is held that the death of the defendant dissolves the attachment. The statutes of the several States providing for an attachment differ in their structure, but that of many of the States have the same general purpose as that of this State, and the authorities, though not conclusive because of the difference between the statutes, aid in some measure in arriving at a proper construction of our own statutes. (See Davenport v. Tilton, 10 Met. 320; Sweringen v. Eberius, 7 Mo. 421; Harrison v. Renfro, 13 Mo. 446 ; Kennedy v. Raguet, 1 Bay, 484; Crocker v. Radcliff, 1 Const. R. S. C. 83.)
Some of the provisions of the Practice Act and of the Probate Act support this theory in respect to the attachment lien. It is provided by section two hundred and two of the Practice Act, that if the defendant die after verdict or decision upon an issue of fact, and before judgment, the Court may render judgment, but it shall not be a lien upon the real property of the defendant, byt shall be payable in the course of administration on his estate. This would be a very incongruous provision, if, while a judgment lien was prohibited, an *368attachment lien was permitted to N continue in force. And besides this, the creditor, by means of the attachment, might nullify the provision for the payment of the judgment in the due course of administration ; for if the assets consisted of personal property only, he would be enabled to withhold from the administrator, all the property with the proceeds of which the judgment might be paid, while the creditor was at the same time without power to issue an execution, under which to sell the property and make his debt.
By section two hundred and fifteen of the same Act, as it stood previous to April 4th, 1864, execution against the property of a defendant who had died after judgment, might be issued upon the permission of the Probate Court; but by the amendment of 1864, in force when the judgment in this case was rendered, authority is given, to issue execution only in case of judgments for the recovery of real or personal property. This negatives the right to any other description of an execution, and 'when considered in connection with the provisions of the Probate Act treating the judgment as a claim, it, by implication, clearly forbids the issuing of an execution in case the defendant dies, not only before judgment, but at such a time in the progress of the action that a judgment could not have been rendered against him. And besides this, section one hundred and forty of the Probate Act directs that no execution shall issue upon a judgment against the executor or administrator upon a claim against the estate, and that the judgment shall not “create any lien upon the property of the estate, or give the judgment creditor any priority of payment.”
The provisions of the Probate Act providing for the order of payment of the claims against the estate (Section 239) are also conclusive upon this point. The section is as follows: “ The debts of the estate shall be paid in the fallowing order: First—Funeral expenses. Second—The expenses of the last sickness. Third—Debts having preference by the laws of the United "States. Fourth—Judgments rendered against the deceased in his lifetime, and mortgages, in the order of their *369date. Fifth—-All other demands against the estate.” The debt in this case is not included in either of the first four classes, and must fall within the fifth class, otherwise it is not entitled to payment out of the estate. No preference is given to any debt of that class over others of the same class, and to make it clear that no preference among the debts of any class, except those in the fourth, was intended, the next section declares that if the estate be insufficient to pay all the debts of any one class, the fund must be distributed pro rata among all the debts of that class. These provisions are utterly inconsistent with the proposition that the attachment lien continues, notwithstanding the death of the debtor, for if it is a subsisting lien the debt secured thereby must of necessity be entitled to a preference over other debts of the same class.
The plaintiff’s position is not strengthened by section one hundred and eighty-six of the Probate Act. That section, among other things, provides that the administrator upon making sale of the land of the deceased which is subject to a mortgage or other lien, shall apply the purchase money, after-paying the expenses of the sale, first to the satisfaction of the mortgage or lien. Before he could claim the application of the purchase money to his debt in case of a sale under the order of the Probate Court, he must prove the very point in controversy—that the attachment continues a lien on the land in the hands of the administrator. He cannot claim the benefit of this section to sustain the lien upon the personal property, for there is no provision that the proceeds of the sale of such property when sold by the administrator shall be applied to discharge a lien..
Here no lien can be acquired by means of the judgment, and no execution is permitted, and the purpose of the attachment becoming impossible of accomplishment, by reason of the death of the defendant, it must of necessity, upon the happening of that event, have ceased to be a lien. Assuming that the attachment lien is included in the term “ lien ” as employed in section one hundred and eighty-six, we are led to this absurd *370conclusion, that the administrator of an estate may be compelled by the Probate Coprt to pay a demand that he was then resisting in another Court, and might ultimately have materially reduced or entirely defeated.
It would seem that if the Legislature had intended that the lien of an attachment should be preserved in the event of the death of the defendant before judgment, while, at the same time, denying to the judgment the power to create alien upon the property of the deceased, and forbidding the issuing of an execution upon the judgment, they would have manifested their intention by some unequivocal provision of the statute, and not have left it to be gathered by doubtful implication.
Judgment reversed and the cause remanded, with directions to enter judgment for the plaintiff for the amount due upon the promissory notes sued on, to be paid in due course of administration, in the current gold coin of the United States.