The plaintiff sued W. A. Mott in his lifetime on two promissory notes, payable, severally, in gold coin of the United States. The summons was accompanied by a writ of attachment, which was duly levied upon certain real and personal property of the said defendant, March 9th, 1864, on which day the summons was also served. On the day following Mott died intestate, and thereafter on the 3d of May, 1864, the appellant was, on her own motion, substituted as defendant, it appearing that she had been appointed as administratrix of the estate of the deceased. Such proceedings were thereafter had in said action that judgment was entered in favor of the plaintiff. Among other special provisions contained in the judgment was one directing the Sheriff to sell the property attached in like manner and upon like notice, as is required by law in sales of personal property on execution ; the proceeds tobe applied in satisfaction of the judgment; and in case of a surplus, the surplus was to be paid to the *371administratrix, and if there should be a deficit, it was ordered to be paid in due course of administration.
It is insisted that that portion of the judgment which contains these special directions, is erroneous; and the objection is put upon the ground that the attachment was dissolved by the death of Mott.
The argument for the appellant, in so far as it goes upon considerations of convenience, is entitled to very little weight, if the meaning of the statutes by which our decision must be controlled is reasonably clear; and the same may be said as to the cases cited from other States, for those decisions are in elucidation of systems differing to a greater or less extent from our own.
By the common law, a suit was abated—that is, ended, by the death of either of the parties to it, and it could not be revived; but by the sixteenth section of our Practice Act it is provided that the action, if the cause of it survive, shall not abate by the death of a party to.it, but may be continued by or against the personal representative on motion. When an action, in such case, has been so continued, all rights involved directly in the suit, and all collateral remedies to which the surviving litigant may have entitled himself under the law, are secured to him as effectually as though the death had not occurred.
In Moore v. Thayer, 10 Barb. S. C. 259, an attachment had been levied, and summons issued before the death, but there had been no personal service, and the order of publication had been only partially complied with ; still it was held not only that the Court had acquired jurisdiction of the action, but also that the plaintiff had acquired a provisional lien upon the defendant’s property, which lien the code was intended to preserve; and it was held that the lien should be enforced. The one hundred and twenty-first section of the Hew York Code, and the sixteenth section of our Practice Act, are in substance the same. The objection that the sixteenth section continues the “ action,” but not the provisional remedy, is opposed not only to the above decision, but to the maxim" *372that the accessory follows its principal. It was held in Low v. Adams, 6 Cal. 281, that “ the - remedy by attachment ” is not a. distinct proceeding, but an adjunct, or a proceeding auxiliary to the action at law, designed for the purpose of securing the property of the debtor-to answer the judgment which may be obtained. This is apparent from the language of our statute, which provides “ that the plaintiff, at the time of issuing the summons, or at any time thereafter, may have the property of the defendant attached as security for the judgment,” etc.
Again, the plaintiff by his attachment acquired a lien, differing in origin to be sure, but in its essential nature like the lien acquired by mortgage or pledge. (14 N. H. 509; 10 Met. 320 ; 1 Zabriskie, 214; 10 S. & Mar. 348; 1 Day, 117.) And it was held in Isaac v. Swift, 10 Cal. 71, that “ where a lien is created by the express words of a statute, express words will be required to continue it beyond the time specified;” and it may be added that if the action in which an attachment is made continues, then the attachment and the lien acquired by it must be continued by parity, unless dissolved by some statute provision. (Drake on Attachment, Section 400, and cases there cited.)
There is nothing in our statute law connecting with the death of a defendant in an attachment suit, any such consequence. Holding, as I do, that the provisional remedy in case of death is kept on foot by a continuance of the “ action ” under section sixteen, it follows that the consequence named must be considered as expressly inhibited in effect, by sections one hundred and twenty-three, one hundred and twenty-four, one hundred and twenty-five, one hundred and twenty-six, and one hundred and thirty-two of the Practice Act, providing for the custody and final disposition of the property as well as for its seizure in the first instance. It will be seen that the question is put upon that portion of the Practice Act relating to attachments, and upon a construction of section sixteen, providing for a continuance of actions in case of death. The 'system for the collection of debts by attachment, and the pro*373bate system, though interblended to some extent, are distinct from each other in the main. Each goes upon its own separate conditions and theories, and all apparent conflict between the two may be harmonized by keeping that fact steadily in view. The provision of the Practice Act requiring the Sheriff to keep personal property attached in his custody, and the provision of the Probate Act (Section. 114,) giving to the representative of a person deceased the right to the possession of all his property, may both have an operation; and so as to those sections of the Probate Act (Sections 140, 141,) fixing the effect of a judgment against an executor or administrator, and those sections of the Practice Act which require with legal positiveness that a judgment rendered in an attachment suit should be satisfied out of the property attached. This method of exposition was repeatedly recognized by the late Supreme Court. In Cowell v. Buckelew, 14 Cal. 641, it was held that the one hundred and forty-first section of the Probate Act applies only to such money judgments as require, whether in whole or in part, for their satisfaction, execution against the general property of the deceased. And it was further held in the same case that the one hundred and forty-eighth section, which provides that “ no sale of property of an estate shall be valid unless made under order of the Probate Court,” applies only to sales by executors and administrators.
The probate system in the matter of the payment of debts, is, with the exception of certain preferred claims, founded upon the principle of pro rata, while the system of the Practice Act recognizes the principle of priority of right in an attaching creditor, confining the priority however to the property covered by the attachment. Many objections have been urged against the latter system, but the Legislature in adopting it overruled them all, and its supposed inequitable operation in cases like the one at bar, is neither greater nor less than that which follows its action generally. The Legislature in providing in effect that an attachment may be enforced in cases where a defendant dies pending the litigation, has merely included within the operation of the rule a case to which the *374principle on which the rule is founded clearly extends. When the people become dissatisfied with any of the consequeuces of the system, they will probably have become dissatisfied with all the consequences, and abandon the system.
As execution could not be enforced against the estate at large, but only against the property attached, it became necessary that a special order should be entered, limiting the proceedings under the execution to that property. (Kittredge v. Warren, 14 N. H. 509.) The judgment that if the proceeds of the sale shall be insufficient to satisfy the judgment, the balance shall be paid in due course of administration, is within the spirit of the one hundred and fortieth section of the Probate Act, and at the worst is but surplusage.
On these grounds, I dissent from the prevailing opinion.