Hill v. Penny , 17 Me. 409 ( 1840 )

The opinion of the Court was drawn up by

Sheplev J.

An administrator cannot maintain an action for an injury dbne to’the real estate of his intestate during his lifetime, but may maintain trespass for an injury done to his personal property. The plaintiff in this case cannot maintain an action for breaking and entering tbo close, or lor cutting down the trees. After they were severed from the freehold the trees became personal property, and for taking and carrying them away the administrator may maintain an action. The instructions limited the plaintiff to a recovery for the value of the property carried away. The declaration, before it was amended, contained a count in trespass quffre clausum, and an informal claim for taking and carrying away a large quantity of underwood lying on the land. The plaintiff was permitted to amend by inserting a count de bonis asportatis. And it is insisted, that although these counts may ordinarily be joined, the amendment was not proper, because, as the action was originally brought, it could not be maintained. There was, however, something more than a claim for breaking and entering and the consequential injury; and it was within the discretion of that Court, over which discretion this Court has no control, to allow that informal claim to be formally stated. And the administrator by claiming for injuries, for which ho had no right to recover, does not destroy his right to recover for other trespasses.

Exceptions overruled.