The proceeding was commenced under ihe old mode of procedure, and must be considered without reference to C. O. P.

“ Actio personalis moriiitr cum ^persona ” is a maxim of the ■common law. The action abates by the death of either plaintiff or defendant. When the matter originated in contract, the cause of act/ion still existed; and another original writ could be purchased, and another action, brought by or against the executor or administrator of the party dying, except in the *684 actions of account and debt on simple contract, for tbe reason that the subject of the action was peculiarly within the knowledge of the original parties to the contract, which entitled the-defendant to his “ w-ager of law.” 3. ed. 3. ch. 7, “ actions may be brought by executors or administrators for injuries to-personal property, when the estate of the one party has been increased, and that of the other diminished, by such wrongful act. So, as the law then stood, all actions abated by the death of either sole plaintiff or sole defendants; but for matters ex contracta and for matters ex delicto, arising out of an injury to personal property, an action might be brought by or against the executor or administrator; and the fact that an action had or had not been commenced between the original parties, was of no significance; that action was dead, and the question depended upon the right of the personal representative to institute a new one.

To remedy the inconvenience of the abatement of actions, and to save the expense of a new action, by or against the executors or administrators of a party dying, it is provided in 17 Car. II, ch. 8. sec. 1. “in all actions the death of either party between the verdict and the judgment, shall not be alleged for erorr, so as such judgment be entered within two terms after such verdict;” and by 8. and 9 Will. Ill eh. 11 sec. 6.

In all actions to be commenced in any Court of record, if the plaintiff or defendent happen to die, after interlocutory, but. before final judgment, the action shall not abate by reason thereof; if such action might be originally prosecuted or maintained by or against the executors or administrators of the party dying. The executors or administrators of the party dying may be brought in by scire facias, and the ease proceeded in by inquiry of damages and final judgment. 2 Saunders, note 72. K. L.

The remedy is further extended by our statute, 1786: “It shall be lawful for the heirs, executors or administrators, to-carry on every suit or action in Courts, after the death of either- *685 plaintiff or defendant, and every such suit or action may be proceeded in by application oí the heirs, executors or administrators of either party.” Eev. Stat. eh. 1. sec. 1, (abatement.) Construing this statute by the settled rule, that general words are to be confined to the mischief which it was the intention to remedy, its operation is, beyond question, confined to suits and actions, which might be originally prosecuted or maintained ¡by or against the heirs, executors or administrators of the party ■dying. In other words, the object being to prevent the inconvenience oí the abatement oí suit and action; the statute can-mot, incidentally, have the effect of allowing further proceedings in actions or suits, which could not have been originally prosecuted or maintained by or against the heirs, executors or administrators of the party dying. For instance: an •action of slander could not be proceeded in, by or against the ■personal representative of a party dying, because it had been commenced in the life time of the parties. For had it been the intention to make a change so fundamental, the purpose ■would have been expressed in direct terms.

The act of 1786, is re-enacted in the Rev. Code, ch. 1, sec. 1, ■(abatement,) in terms more amplified, but having the same legal effect; care is taken to “ except suits for penalties and for •damages merely vindictive;” showing the construction that was put on the act of 1786, and excluding the idea of an intention to extend the remedy beyond the mischief. But on the contrary, to confine the general words “actions, suits, bills in equity, or information in the nature of a bill in equity, or ether proceeding of whatever nature,” to cases, when the proceeding might have been originally instituted by or against the heirs, executors or administrators of the party dying. The ■express words of the exception being used by way of example merely, and not as excluding other cases of a similar nature and falling under the same principle. Broom’s Leg. Max. 638. Suits for penalties and for damages, merely vindictive, we have seen, would have been excluded by construction from *686 the operation of the general words, as going beyond the mischief; so, the express exception, otherwise than as an example, falls under the rule, “ an expression which merely embodies, that -which would in its absence have been implied by law, is altogether inoperative.” Ibid. 494.

For illustration, an action in the name of the Attorney-General, against a person tor usurping an office, setting out the name oí the person rightfully entitled to the office, and demanding a surrender of the office, and an account of the fees and emoluments Code Civil Procedure, Section 369. The defendant dies, after summons served. The proceeding is at an end: For, although embraced by the general words of the statute, Rev. Code, ch. 1, s. 1, it is not within the mischief, as the proceeding could not have been originally commenced against the executor or administrator, of the alleged usurper of the office; for the proceeding is special in its nature, and can only be brought against the usurper in his life time. The cause of action does not survive, and the account for the. fees and emoluments being a mere incident, falls with the principal. For the same reason that the action quare impedit, abates by the death of the incumbent of the office and cannot be proceeded in against his personal representative, inasmuch as he is not liable to an original proceeding of that kind. To. apply this learning to our case, the proceeding by attaching a debt due ’to an absconding debtor by garnishment, in the hands of one, supposed to be indebted to him, for the pui’pose of compelling an appearance, is special in its nature, the garnishee is-required to answer upon oath, whether he is indebted to the absconding debtor, and if so, how much? This is peculiarly within his knowledge, and for that reason, the proceeding like the action of account and of debt on simple contract, cannot be prosecuted or maintained against an executor or administrator. This is settled; (Welch v. Gurley, 2 Haywood, 334,) and such has ever since been taken to be the law ; consequently upon the death of John M. Morehead, the proceeding abated, and *687 cannot be proceeded in, after his death, against his administrators, as they could not have been originally proceeded against, by the process of garnishment.

The suggestion that, by the service of the garnishment upon J. M. Morehead, in his life time, the plaintiff had acquired a lien on the debt due by him to Burrows, which was a “vested right ” that could not be lost by his death, will be seen to have nothing to rest on, by adverting to the principles above set out. The plaintiff had a lien on the debt to compel the appearance of the defendant in the action ; but since the act of 1866-67, the defendant may replevy and plead without giving a replevy bond. Holmes v. Sackett, et. al., 63 N. C. 58. So that the idea of a “ vested right,” is out of the question, and the inconvenience or hardship, is nothing like that of a plaintiff in an action of slander, who has what is called a “ vested right ” in the bail bond, when if the defendant happens to die before final judgment, all is gone by the abatement of the action.

We concur with his Honor. Judgment affirmed.

Pek Cuexam.