Brawner v. Sterdevant

By the Court. Lumpkin, J. delivering the opinion. This was an action by the father, for the seduction of his daughter. Pending the suit, the defendant died, and a scire facias was issued against his executor, to make him a party. The representative showed for cause, that it was a personal action for a tort, which abated on the death of the party, and the Court sustained the objection, and this judgment is assigned for error. [1.] We have struggled hard to maintain this proceeding, but find it impossible to do so. The old Common Law maxim of actio personalis, notwithstanding the modifications made by the Statute of Edward, in relation to personal property, and the still [70] more recent Act of 4 William, respecting real estate, still applies where a tort is committed to a man’s person, feelings or reputation, as for assault, libel, slander or seduction of Ms daughter. Broom’s Legal Maxims, 254. We must not, in this or any other case, permit our sympathy, or anything else, to draw us off from the position so early taken, and so firmly and uniformly adhered to by this Court, namely: that what is or is not sound policy, is a question for the Legislature, and not for the Judiciary. The line between the legislative and judicial power, should be kept constantly in view by both these departments, and never invaded or transcended by either. It is our province to expound and apply, and not make or change the law. We protest alike against judge-made law, pnd the exercise of judicial power by the Legislature.