Wheatley versus Lane. Mich. 20 Car. II. Rol. 740. Case 32. DEBT in the debet and detinet. — The plaintiff declared, s.C. 1 Lev. 255. 1Sid. 397. 2 Keb. 431. Debt in the debet and detinet, ment had that he had recovered a judgment in debt in this court against the defendant as executor; and that after the judg- 443. 455. ment, the defendant had wasted the goods of the testator, to the value of the debt recovered, whereby an action had accrued to the plaintiff, to demand and have of the defendant the said debt; yet the said, &c. And upon this declaration it was demurred, and the sole question was, whether such an action lies upon a bare suggestion of a devastavit or not. And it was argued by Pemberton of counsel with the defendant, that this action was not maintainable, because it is an action founded upon 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, but not debt. And he said, that an action of trover and conversion of goods or money sounds in the right, and yet debt does not lie for such goods or money converted. And there is a maxim in law, that actio personalis moritur cum personâ. (1) And in this case the devastavit is a personal wrong lies on a judgagainst an executor upon a bare suggestion of a devastavit. (1) It was a principle of the com- where the cause of action was founded mon 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. Lawson. 2 Ld. Raym. 974. Berwick v. Andrews. But VOL. I. 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 persona; and this rule still holds with respect 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, 168. S. C. Sir T. BB v. LANE. WHEATLEY in the defendant; yet if he dies, this action of debt, supposing it be maintainable, may be brought against his execntor or administrator, and so in infinitum, which would entirely subvert the ancient rule of law. And if such action of debt upon a Raym. 57. Hole v. Bradford. Palm. 330. Carter v. Fossett. Cro. Car. 540. Perkinson v. Gilford. 1 Ld. Raym. 433, 434. Kinsey v. Heyward. Cowp. 375. Hambly v. Trott. 2 Bac. Abr. 445. But this rule was never extended to 66 (a) An action on the case lies, by the custom of England, against the executors of a deceased rector, &c. for dilapidations. The reason given by Lord Chief Justice Willes, in Sollers v. Lawrence, Willes, 421., is the following: "Because it is not considered as a tort "in the testator, but as a duty which he ought to have performed; and there"fore his representatives, so far as he "left assets, shall be equally liable as "himself. And, for this reason, it is "not contrary to the rule, that actio "personalis (which is always under"stood of a tort) moritur cum persona." It is observable, however, that this action is in form an action on the case in tort: and that it could not possibly be framed in assumpsit, as on a contract; for the plaintiff must be the succeeding rector, &c. 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 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. Cowp. 375. (a) It is true, that no action 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. 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.] 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 reason this action, however anomalous in other respects, is not contrary to the rule, that actio personalis moritur cum persond 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, "he shall have covenant, v. LANE. devastavit be brought against two executors who plead to issue, WHEATLEY and one is acquitted, and a verdict be found against the other, what judgment shall be given? Shall it be given quod querens nil capiat per breve, sive billam, because a joint defendant is account lay either for or against an executor; not upon the principle before mentioned, but because the account rested in the privity and knowledge of the testator only. Co. Litt. 89. b. 2. Inst. 404. But this action is since given to executors by the statute of W. 2. 13 Edw. 1. stat. 1. c. 23.; and against executors by statute 4 & 5 Anne, c. 16. s. 27. Nor did an action of debt lie against an executor upon a simple "upon a covenant made to his testator "for a personal thing. So upon any "contract made to the testator." And in March. pl. 13. there cited, Jones J. said, "And so it was agreed by the "court, in what case soever there is a "contract made to the testator or in"testate, or any thing which ariseth by "contract, there an action will lie for "the executor," &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 appearing to have been removed by the defendant. 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. p. 181 b. note (c) 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 allowed." And by sect. 14. "An action of debt on "simple contract shall be maintainable "in any court of common law against "any executor or administrator."] WHEATLEY acquitted, as in all actions of debt it ought to be? Or shall it v. LANE. be quod querens recuperet? as in action of trespass against two, and one is acquitted, yet the plaintiff shall have judgment against the other; and these absurdities, and many other diffi provided for him while in prison. 9 Rep. 87. b. (c) 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. 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 re (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. [Again, at the common law, an action of trespass for mesne profits cannot be maintained against an executor or administrator; yet he is liable in an action for use and occupation by his testator 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. 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 A. & E. 426. ceived to recover the value. Cow.377.(d) The rule of actio personalis moritur cum persona, has received considerable alteration by the statute 4 Edw. 3. c. 7. De bonis asportatis in vitâ testatoris, which reciting, that in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators carried away in their life, and so as such trespasses have remained unpunished, enacts, "that the executors in such cases "shall have an action against the trespassers, and recover their damages 66 v. LANE. cult questions and inconveniences will arise, if such a new WHEATLEY invention as this should be suffered. For by the same reason that the plaintiff has in this case brought his action upon a judgment against the executor himself, by the like reason he "in like manner as they whose execu"tors they be should have had if they were living." And this remedy is further extended to executors of executors by stat. 25 Edw. 3. c. 5., and to administrators by stat. 31 Edw. 3. c. 11. (e) The statute of 4 Edw. 3. being a remedial law, has always been expounded largely; and though it makes use of the word trespasses only, has been extended to other cases within the meaning and intent of the statute. 1 Vent. 187. Emerson v. Emerson. Sir W. Jones, 174. 2 Ld. Raym. 974. Berwick v. Andrews. Therefore by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it is become less beneficial to the executor, as the testator himself might have had, whatever the form of the action may be. Latch. 168. So that he may now have trespass or trover, 5 Rep. 27. a. Russell's case. Sir W. Jones, 174.; ac tion for a false return, 4 Mod. 403. Williams v. Cary; for an escape, 2 Ld. Raym. 973. Berwick v. Andrews; debt on a judgment against an executor suggesting a devastavit, 1 Salk. 314.; action for removing goods taken in execution before the testator (the landlord) was paid a year's rent, 1 Str. 212. Palgrave v. Windham; and other actions of the like kind, for injuries done to the personal estate of the testator in his lifetime: see also 2 Bac. Abr. 445. Cro. Eliz. 377. Rutland v. Rutland. 1 Vent. 187. Emerson v. Emerson. But the statute of Edw. 3. does not extend to injuries done to the person, or to the freehold of the testator; therefore an executor or administrator shall not have actions of assault and battery, false imprisonment, slander, deceit, diverting a watercourse, obstructing lights, cutting trees, and other actions of the like kind; for such causes of action still die with the person. Sir W. Jones, 174. Latch. 168. 1 Vent. 187. (ƒ) (e) [Or rather by an equitable construction of the stat. 4 Edw. 3. Cro. Eliz. 384. Smith v. Vanger Colgay. The stat. 31 Edw. 3. only gives an action to the administrator to recover, as executor, the debts due to the deceased. See Fraser's note to Pinchon's case. 9 Co. 89. a.] (f) [But, as to injuries done to the freehold, by stat. 3 & 4 W. 4. c. 42. s. 2. "An action of trespass or trespass on "the case, as the case may be, may be "maintained by the executors or ad"ministrators of any person deceased, . |