Petts v. Ison

By the Court. Warner, J. delivering the opinion. [1.] The only question made by the record, for our judgment in this cáse is, whether the cause of action survived against the executrix of the testator, or whether it abated by his death. The plaintiffs, in the Court below, brought an action of trespass against John Ison, the testator, and while the action was pending, on the appeal, the defendant died. The declaration alleges, that the defendant, with force and arms, assaulted the plaintiffs’ wagon-driver, stopped their team with great force and violence, and with axes, sticks, &c. knocked, hewed and cut all the spokes out of one of the wheels of the plaintiffs’ wagon, to their great damage, &c. By the 12th section of the Judiciary Act of 1799, it is declared: “No suit in any of the said Courts shall abate by the death of either party, where such cause of action would, in any case, survive to the executor, or administrator, whether [153] such cause of action would survive in the same, or in any other form, but the same shall proceed as if such testator or intestate, had not died,” &c. Prince, 422. The Legislature evidently had in view the Common Law, at the time of the enactment of this Statute. The mere form of the action, however, was not intended to be the criterion for its survivorship or abatement. The rule of the Common Law, as stated by Blackstone, is that in all personal actions, arising ex delicto, for wrongs actually done or committed by the defendant — as trespass, battery and slander. — -that actio personalis moritur cum persona, and cannot be revived, either by or against their representatives. 3d Bl. Com. 302. Mr. Chitty states the rule to be, at Common Law, that in cases of injuries to personal property, if either party died, in general no action could be supported, either by or against the personal representatives of the parties, where the action must have been in form, ex delicto, and the plea not guilty; but if my contract could be implied— as if the wrong* doer converted the property into money, or if the goods remain in specie, in the hands of the executor of the wrong-doer — assumpsit for money had and received, may be supported by or against the executor, in the former case, and trover in the latter. 1 Chitty’s Pleading, Dunlap’s edition, marginal page 57. According to Mr. Chitty, the Statute of 4ih Edward III. has not altered the Common Law rule in its relation to personal property, only in favor of the personal representatives of the party injured. 1 Chitty’s Pleading, marginal page 56. This is an action of trespass against the defendant, for a direct and immediate injury to the property of the plaintiffs. The defendant nor his estate was not benefited by this tortious act; and in such cases, the rule of the Common Law, actio personalis moritur cum persona, applies. Cravath vs. Plympton, adm’r, 13 Mass. Rep. 454. 1 Saunders’ Rep. 216, note 1. Franklin vs. Low Swartwout, 1 Johns. Rep. 401. This action of trespass would not survive at Common Law, and we are unable to perceive that it would survive in any other form of action. The law, very clearly, would not raise an assumpsit upon an implied contract, in favor of the plaintiffs; and the injury having been direct, and committed with force, an action on [154] the case could not be maintained, nor would trover lie. The result, therefore, is that the plaintiff’s cause of action against the defendant, abated on the death of the latter, and cannot be revived against his legal representatives. Let the judgment of the Court below be affirmed.