Cowan v. Campbell's Administrator , 56 Ky. 522 ( 1856 )

Judge Simpson

delivered the opinion of the court:

This action was brought by the heirs and distributees of W. G. Cowan, deceased, against the administrator oí A. Campbell, for the failure of the defendant’s intestate, who had intermarried with the widow of said W. G. Cowan, to make out under oath, and file for record in the clerk’s office of the county court where he resided, the names of the slaves and their respective ages, that had been allotted as dower to his wife, out of the estate of her deceased husband.

A demurrer to the petition was sustained by the circuit court, and judgment rendered for the defendants, from which the plaintiffs have appealed.

By an act passed in 1839, (3 Statute Law, p. 554,) it was made the duty of ail persons, holding a life estate in slaves, to make out and file with the clerk of the county court, annually, such a list of said slaves as therein required; and for the failure to do so, they were subjected to a forfeiture of one hundred dollars, to be recovered by action of debt, by the persons entitled to the slaves in reversion or remainder.

This act was repealed by an act of 1844, (Session Acts 1843-4, page 84,) which required the'performance of the same duty, by persons holding a life estate in slaves, and subjecting them, for a failure to comply with the requisitions of the statute, to afine by presentment of a grand jury, not exceeding fifty dollars for each failure.

By the Revised Statutes, page 628, the same duty is imposed on the owner of a life estate in slaves, and for a failure to file such annual statement he is made liable lo a fine, not exceeding fifty dollars for each offense, for the use of the person in remainder, to be recovered by suit or indictment, at the cost of the person suing.

The fine imposed by the act of 1844 was not declared to be for the benefit of the persons entitled to the slaves in reversion or remainder; and as it could only be recovered under a presentment by a grand jury, no suit for it could be maintained in the name of the reversioner or remainderman, and when collected it was not for bis benefit, but was to be used for the same purpose that other fines were directed to be appropriated by the law in force at the time of their recovery.

1. According to the rules of the common law, as modified by the 4th ltd-ward lit, which modi fi c a tion was rc-euacted by the legislature of Kv. in 1797, (1 Littell, 624,) no suit can bo maintained againstan executor for a forfeiture incurred by the testator under a penal statute. (Com. Big., Title Admin is tr ation, Letter B, 15.) 2. The net of 1812 (l Statute Law, 88,) saving the right of action for personal injuries to administrators and against them, embraced actions for personal injuries only, and has no application to injuries to real estate. (Kennedy Met’nun, us. McAfee’s executor, l Litt. 4U9.) 3. No action can be maintained against an administrator for the failure of his intestate to return a list of slaves held as According to the Revised Statutes & previous acts on that subject, the right of action in such case person. It is not the the duty of tor to return such list as the statute prescribes.

The principal question however, that arises on the demurrer is, can an action be maintained against the personal representative of the offender after his death, either under the act of 1839 or under the Revised statutes, or does the action abate by the death of the party?

By the principles of the common law all actions founded on a tort died with the person. This rule of the common law underwent considerable alteration by the statute of 4 Edward 3, which was re-enacted by the legislature of this country in 1797. ( 1 Littell, 624.)

But even under the law as thus modified debt could not be maintained against an executor for a forfeiture incurred by his testator on a penal statute. (Com. Dig., Administration, B, 15.)

By an act passed in 1812, (1 Statute Law, 88,) it was enacted, that no species of actions for personal injuries shall cease or die with the person, except actions for assault and batteries, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but that for any other injury than those therein excepted, an action might be brought and maintained by executors or administrators, or against executors and administrators in like manner with causes of action founded on contract.

It was decided in the case of Kennedy & McCoun vs. McAfee’s executor, 1 Littell, 409, that this act embraced actions for personal injuries only, and did not apply to injuries to real estate.

Now, this action is not brought for a personal inr jury, nor is the penalty inflicted by the statutes imposed on account of an injury, either to the person or the property of another; but it is inflicted fora failure to comply with the requisitions of the law, which failure might be productive of injury to the rights of other persons. The action for the penalty under these statutes, is not embraced either by the letter or the soirit of this act. And as the penalty is in its nature personal, being a fine against the offen^er, the action given by the statute abates by his death, and cannot be maintained against his person- . r &I representative.

Under the Revised Statutes, if the owner, guardian, or husband fail to comply with the law, they are made liable, but it is not made the duty of an administrator, who has the control of the slaves, mere- ’ ly for the purpose of administering the estate of his intestate, to list a statement of them with the clerk of the county court, nor is he subjected to a fine for failing to do it.

Wherefore, the judgment is affirmed.