Shields v. . Lawrence Col. of Margaret W. Davis

Settle, J. This is an action brought under the provisions of the C. C. P., section 383, etseg., by a remainderman against the tenant for life, in which the plaintiffs demand : 1. A forfeiture of the estate of the defendant; 2. Damages for the waste committed. During the pendency of the action, the tenant for life died, and her personal representative having been brought in by citation, entered the following plea, to wit: “He insists that the said action abated by the death of the defendant, Margaret W. Davis, and in law cannot be farther prosecuted.” The plaintiffs moved for and obtained leave of the Court to amend their complaint by declaring for actual damages only. The defendant resisted this motion, contending that there was but one course open to the Court, and that was to enter a judgment that the action had abated. The Court ruled otherwise, and the defendant appealed. We do not see that any amendment of the complaint was necessary to the maintenance of the action, but certainly the amendment which was made did not in any manner prejudice the right of the defendant. An action for wrongs in the nature of waste is not necessarily an action “ for penalties,” or “ for damages merely vindictive;” on the contrary, the action is generally used to recover actual and substantial damages. And that an action survives when such is its purpose, either to or against the personal representative, is too well established by the decisions of this Court to require a further discussion of the subject. Butner v. Kehln, 6 Jones, 60; Ripley v. Miller, 11 Ired., 247; Collier *45 v. Arrington, Phil. 356; Peebles v. N. C. R. R. Co., 63 N. C. Rep., 238; Shaler v. Millsaps, 71 N. C. Rep., 217. The defendant’s counsel relied upon the authority of Brown v. Blick, 3 Murph, 511, to show that the action of waste, being founded on a highly penal statute, did not survive. In that case the Court held that as the acts of 1799 and 1805 enumerated certain actions which should survive and omitted to name the action of waste, it necessarily abated, under the operation of the maxim, exjpressio unizis exolusio alterius. But that decision, turning as it did upon the form of the action, can have no application to the case at bar, for the old technical action of waste is now abolished, and wrongs heretofore remediable by actions of waste, are subj ects of action as other wrongs. Bat. Rev., chap. 17, sec. 383, et seq. And no action shall abate by the death of a party if the cause of action survive or continue. In ease of death, except in suits for penalties and for damages merely vindictive, the Court, on motion, may allow the action to be continued by or against the personal representative of the deceased. Bat. Rev., chap. 17, sec. 64; also chap. 45, sees. 113 and 114. Our conclusion is, that this action does survive as to actual damages, but not as to vindictive damages. The judgment of the Superior Court is affirmed. Let this be certified, &c. Pee Cueiam. Judgment affirmed.