Upon a return of non est inventus a writ on which an attachment has been made may be entered and an order of notice issued returnable at the ensuing term. A plea in abatement to such writ alleging that the defendant was on the date of the writ and ever thereafter had been an inhabitant of the state should be overruled. The two year limitation imposed by P.L., c. 302, ss. 9, 10 upon the issuance of a scire facias against an administrator applies only to actions for personal injuries. Hence, where a defendant in an action of contract died after an order of notice had been served and after his failing to enter appearance at the term to which the notice was returnable a scire facias to cite in his executor was properly issued, though more than two terms had elapsed since his appointment. A delay in procuring the issuance of the writ in such case not appearing prejudicial to the estate was not a bar to the further maintenance of the writ to compel the appearance of the executor.
PAGE, J.
(1) The return non est inventus dated December 20, 1926, showing on its face that the residence of Sargent was unknown to the officer, was evidence on which the action was properly entered and continued for notice. The service made upon Sargent in accordance with the subsequent order was authorized by law, and the plea in abatement must be overruled. Burney v. Hodgdon, 66 N.H. 338; Martin v. Wiggin, 67 N.H. 196; National Bank of Lebanon v. Company, 70 N.H. 227.
(2) Since this is not an action to recover for personal injuries, the limitation upon the issuance of a writ of scire facias (P.L., c. 302, ss. 9, 10) does not apply. Shea v. Starr, 76 N.H. 538. It does not appear from the agreed statement of facts that the delay in service of the writ of scire facias from October 30, 1928, to December 23, 1929, even if due to the fault of the plaintiff, was so prejudicial to the defendant that it would be unjust for the action to be prosecuted further (see Shea v. Starr, supra, 541). Consequently the action is maintainable against the estate, and if the executor does not enter general appearance he may be defaulted.
Case discharged.
All concurred.