WHEATLEY . LANE. 1 Saunders' Reports, 216a [abridged]. Debt on a Devastarit. LANE. DEBT in the debet and detinet.-The plaintiff declared that he WHEATLEY had recovered a judgment in debt against the defendant as executor; and that after the judgment the defendant had wasted the goods of the testator to the value of the debt recovered. And on this declaration it was demurred. And the sole question was whether such an action lies on a bare suggestion of a devastavit or not. And it was argued for the defendant that this action was not maintainable, because it is an action founded on a tort, and at the common law no action of debt lies for a tort, but an action of trespass, or on the case, only. And there is a maxim in law that actio personalis moritur cum personá (1). But the court, on (1) It was a principle of the common law, that if an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done. And from a misconception or misapplication of this principle, it was formerly doubted, whether assumpsit would lie either for or against an executor; because the action, it was said, was in form trespass upon the case, and therefore supposed a wrong, and in substance to recover damages only in satisfaction of the wrong. Plow. 180. Norwood v. Read. Dy. 14, pl. 69, in margine. 9 Rep. 86 b, 89 a. Pinchon's case. Cro. Jac. 294. S. C. 10 Rep. 77 a, the case of the Marshalsea. Yelv. 20. Slade v. Morley. 1 Lev. 200, 201. Palmer v. Larson. 2 Ld. Raym. 974. Berwick v. Andrews. But where the cause of action was founded upon any malfeasance or misfeasance, was a tort, or arose ex delicto, such as trespass for taking goods, &c., trover, false imprisonment, assault and battery, slander, deceit, diverting a watercourse, obstructing lights, escape, and many other cases of the like kind, where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty, the rule was, actio personalis moritur cum personâ; and this rule still holds with re Actio Personalis, &c.-Dilapidations. WHEATLEY the authority of the cases of Cory v. Thinne, 15 Car. 2, Roll. V. LANE. 711, in C. B., affirmed in K. B. on error; 1 Lev. 147; 2 Sid. spect to the person by whom the injury is committed; for if he dies, no action of this kind can be brought against his executor or administrator, though in some of these cases, such as taking away goods, &c., a remedy may be had against the executor in another form. Sir W. Jones, 174. Le Mason v. Dixon. Latch. 167, Latch. 167, 168. S. C. Sir T. Raym. 57. Hole v. Bradford. Palm. 330. Carter v. Fossett. Cro. Car. 540. Perkinson v. Gilford. v. Gilford. 1 Ld. Raym. 433, 434. Kinsey v. Heyward. Cowp. 375. Humbly v. Trott. 2 Bac. Abr. 445. But this rule was never extended to such personal actions as were founded upon any obligation, contract, debt, covenant, or any other duty to be performed; for there the action survived. Latch, 168. Cro. Car. 540. 540. Cowp. 375 (a). It is true, that no action of account lay either for or against who cannot be known until after the death of the predecessor, and of course could not contract with him. Formerly it was doubted, whether any action at law would lie for dilapidations, even by a succeeding rector, &c., against his predecessor, who had vacated by cession or otherwise; but this point was determined in 3 Lev. 268. Jones v. Hill (see also 2 T. R. 630. Radcliffe v. D'Oyley); and the temporal courts having once taken cognisance of such matters, it should seem that the action was considered to lie against the executors of a deceased rector, &c., from the necessity of the thing, and it is at this day of common occurrence. 4 M. & S. 183. Young v. Munby. [10 B. & C. 299. Wise v. Metcalf. 5 Mann. & R. 235. S. C. 2 Carr. & P. Dilapidations. 102; and Harwell v. Ellis, 1 Lev. 147, which Twysden, J., WHEATLEY said he remembered, delivered their opinion for the plaintiff, an executor; not upon the principle before mentioned, but because the account rested in the privity v. LANE. and knowledge of the testator only. Co. Litt. 89 b. 2 Inst. 404. But this action is since given to 460. Percival v. Cooke. 4 B. & Ad. 826. Bird v. Relph. 1 N. & M. 415. S. C. 2 A. & E. 773. Bird v. Relph. 4 N. & M. 878. S. C.] The law is the same as to a perpetual curate; 12 Q. B. 795. Mason v. Lambert; and as to a vicar choral of a cathedral. 7 C. B. N. S. 838. Gleaves v. Parfitt. The right is confined to dilapidations to houses and buildings, and does not extend to waste committed by digging gravel in the glebes. 3 Law Rep. C. P. 655. Ross v. Adcock. If the successor dies, without having enforced the right of action, it survives to his executor, who, being himself liable to the third incumbent for the whole of the dilapidations existing at the death of his own testator, may recover from the executor of the first incumbent for so much of them as occurred during the first incumbency. 3 Exch. 558. Bunbury v. Hewson. It is clearly an exception to the general rule, that no action will lie against an executor to which his testator was not liable; for the testator never can be liable, inasmuch as during his life there is no person who can sue. For the same VOL. I. reason this action, however anomalous in other respects, is not contrary to the rule, that actio personalis moritur cum personâ: an action cannot be said to die, which never had nor could have had existence. It seems, therefore, not to be quite correctly stated, that "the "executor shall be equally liable as "the testator." The observation also, that actio personalis is always understood of a tort, seems not to be strictly accurate; at least not where it is applied to actions brought by an executor. Some confusion seems to have arisen from a supposition, that an action will lie for the executor whenever it is founded on a personal contract made with his testator. Thus in Com. Dig Admin. (B. 13) it is said, (B. 13) it is said, "he shall have Actio Personalis, &c. WHEATLEY that the action was well brought, and gave judgment accord Ian action will lie for the exe"cutor," &c. But the better opinion is, that an action will not lie except in cases where the breach of contract is of such a nature as appears by the record to render the personal estate less beneficial to the executor; and accordingly, in 2 M. & S. 408. Chamberlain v. Williamson, it was held, that an administrator cannot have an action for breach of promise of marriage to his intestate where no special damage is alleged. The same rule, as it should seem from the judgment of Lord Ellenborough, C. J., in the above case, applies to actions for negligence or want of skill. [It was decided, however, in 2 Cr. M. & R. 588. Raymond v. Fitch. 5 Tyrw. 985. S. C., that an executor could sue the lessee of his testator on a breach of covenant not to fell, stub up, head, lop, or top timber trees, excepted out of the demise, such breach having been committed in the lifetime of the testator, and no part of the timber, loppings, or toppings ap waged his law; not because such action died with the person, but because the executor would lose the benefit of waging law; 9 Rep. 87 b. Pinchon's case. Cro. Eliz. 600. Bowyer v. Garland. Cow. 375 (b); for where the tes pearing to have been removed by the defendant. (See also, 12 M. & W. 718. Ricketts v. Weaver.) Hence it appears to follow, that the case of Chamberlain v. Williamson does not wholly justify an inference, that the right of an executor to sue on a breach of contract made with the deceased is confined to cases in which such breach can be stated as a damage to the personal estate. As to actions by executors for breaches of contracts relating to the freehold, see post, vol. ii., notes to Wotton v. Hele.] (b) And so the law continued; 1 N. R. 293. Barry v. Robinson; but the objection could be taken on demurrer only. 5 Taunt. 665. Prince v. Nicholson. 1 Marsh. 280. S. C. [But now by stat. 3 & 4 W. 4, c. 42, s. 13, "No wager "of law shall be hereafter al"lowed." And by sect. 14. "An "action of debt on simple con"tract shall be maintainable in any court of common law against Actio Personalis, &c. tator himself could not have waged his law, debt lay against his executor, as debt for rent upon a parol lease made to the testator, or by a gaoler for diet provided for him while in prison. 9 Rep. 87 b (e). But assumpsit always lay against an executor upon the simple contract of his testator, notwithstanding what is said to the contrary in Yelv. 20. Slade v. Morley. Plow. (c) For the same reason, debt on simple contract always lay against an executor in the Exchequer. [9 Rep. 88 a. Pinchon's case.] (d) So although an action on the case is not maintainable against the executor of a carrier, yet an action of assumpsit is. Cowp. 375, per Lord Mansfield, C. J. 2 N. R. 370. Powell v. Layton, per Sir J. Mansfield, C. J. [So though the executor of an innkeeper cannot be sued in tort for the loss of a guest's goods (unless under stat. 3 & 4 Wm. 4, c. 42, s. 2, infra), he may be sued on an implied assumpsit. 2 Fost. & F. 283. Morgan v. Ravey. 6 H. & N. 265. S. C. So if a man deals as agent for another without authority, his executor, although he cannot be sued for the tort, may be made liable on an implied assumpsit. 7 E. & B. 301. Collen Collen v. Wright. 8 E. & B. 647. S. C. in error.] So if a man take the horse of another, and bring him back again, an action of trespass 180. 9 Rep. 87 b. So if the goods, &c. taken away, continued still in specie, in the hands of the wrong-doer, or of his executor, replevin or detinue would lie for or against the executor to recover back the specific goods; Sir W. Jones, 173, 174; or in case they were consumed, an action for money had and received to recover the value. Cow. 377 (d), will not lie at the common law against his executor, though it would against him. But an action for the use and hire of the horse will lie against the executor. Cowp. 375. Hambly v. Trott, per Lord Mansfield. Again, at the common law, an action of trespass for mesne profits cannot be maintained against an executor or administrator; yet he is perhaps liable in an action for use and occupation for the rent up to the day of the demise in the ejectment. 6 Ves. 87. Pulteney v. Warren. 2 Russ. & M. 117. Monypenny v. Bristow. But see 1 T. R. 378. Birch v. Wright. 5 Bing. 410. Bridges v. Smith. 2 Moo. & P. 740. S. C. 2 Camp. 14. Cobb v. Carpenter, note to Balls v. Westwood. [5 Exch. 932. Turner v. Cameron's Coalbrook Company. So an executor is liable to an action for money had and received by his testator, for coal tortiously taken by him from the plaintiff's land, if the testator has sold it and received the money. 7 |