Nettles v. Barnett , 8 Port. 181 ( 1838 )

GOLDTHWAITE, J.

— One of the assignments of error .presents a question, which is, in our opinion, decisive of this case, and renders it unnecessary to express any Judgment, on those arising from the bill of exceptions.

It is an ancient and uncontested maxim of the common law, that personal actions die with thé person. These actions have never been understood to be those which arise from contracts, for the payment of money, ■or for the performance of duties where property is in •question; but the maxim is confined in its government, to those actions for injuries to the person, character or property of individuals. It was early perceived in England, as personal property became more and more valuable, that it ought to be in some degree withdrawn from the rule, admitted to prevail. Accordingly, the statute of 4th Edward 3, ch. 7, was enacted, which gave an action to an executor, for an injury done to the personal property of his testator in his life time, which' was subsequently extended by other statutes, to the executor of an •executor, and to an administrator.

The construction which these statutes have received in the English courts, has extended the remedy of an administrator or executor to almost every species of action for injuries to the .personal property of the intestate or testator. But they have never been held to extend relief against the executor or administrator, for an injury of the ■same character committed by his testator or intestate — ■ (1 Saund. 216, n. 1.)

In this State, the statutes of Edward III have been adopted, and even extended, by the act of eighteen hun-' dred and twenty-six, (Aik. Dig. 260, s. 6 which provides that all actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff dies, be revived by his executor or administrator, in the same manner as actions on contracts. It will be seen, however, that none of the terms used by this act, will authorise an inference, that it was intended to apply to the case of defendants; and indeed it might well be questioned, 'whether there is not much reason why no right of survivorship should be given for such injuries against an individual; as the only use of the particular form of action would be to authorise the rendition of vindictive damages.. As the action of trover by statute survives for and against executors and administrators, this form of action will give ample relief, where the personal estate has been converted previous to the death. Or, if it has been sold, an action for money had and received on the implied contract, waiving the injury, can be maintained. If the property remains in specie, in the hands of the personal representative, he could be made personally answerable for it.

If this form of action is permitted to survive against a personal representative, it would be governed by the same rules as an original suit, and vindictive damages might be awarded after the death of the wrong doer. This is one of the evils which was restrained by the maxim of the common law, and none of the legislation on this subject authorises the inference, that a different rule was intended to be given. The construction given to similar statutes in other States, has been the same as now given by us.

In the case of Nicholson vs. Elton, (13 S. & R. 415,) the precise question now presented arose, and was determined in conformity with the views we have expressed. So, in the case of Stebbens vs. Palmer, (1 Pickering, 71,) an action for breach of promise of marriage was held not to survive, though in form, an action ex contractu. (See also Hinch vs. Metzer, 6 S. & R. 272; Lattimore vs. Simmons, 13 S. & R. 183; Hambly vs. Trott, Cowp. 376.)

The defendant to the action having died pending the suit, it thereby abated, and could not be revived. It was irregular, to permit his administrators to make themselves parties, and for this error, the judgment is reversed, and a judgment here rendered, abating said suit.