Woods v. Howell

By the Court. Starnes, J. delivering the opinion, [1.] It was undoubtedly the rule at Common Law, that where the action “ was founded upon any malfeasance or rnisr feasance, was a tort, or arose ex delicto”; such, for example, as trespass for taking goods, trover, false imprisonment, assault and battery, slander, &c. the maxim, actio personalis moritur cum persona applied. The Statute 4 Edw. III. ch. 7, so far modified this rule, as to permit executors, &c. to “ have an action for trespass done to their testators, as of the goods and chattels of the said testators carried away in their life.” And it seems also to have been well settled, that where the deceased, by a tortious act, acquired the property of the plaintiff by converting it to his own use, and the estate of the deceased was thus benefited, although no action of trover or trespass would lie, yet the law would afford the plaintiff some form of action. (Kinsey vs. Heyward, 1 Cowp. 375. Cravath vs. Plympton, adm’r. 13 Mass. 453. Hambly vs. Trott, 1 Cowp. 373.) By the. 12th section of our Judiciary Act of 1799, it was enacted, that no suit shall abate by the death of either party, where the cause of action would survive in the same, or any other form. Now we have shown that such a cause of action as this before us would survive, in some form, at Common Law. It fol [497] lows then, that under the ah ove. pro vision of our law, this suit would not abate, even if the action were, in form, an action of trover. But such it is not. It is framed according to the new forms; and is essentially different in its structure from the action of trover. It does not depend upon the allegation of a trespass or tort for its support; and in its nature, is perhaps allied to those forms which, upon such a cause of action, might be supported at Common Law, after the death of the defendant. [2.] That section of our Judiciary Act of 1799, which declares, that where the defendant shall die, “ it shall and may be lawful for the plaintiff to issue a scire facias in manner aforesaid, immediately after the expiration of twelve months,” &c. is permissive as to the time specified. . It was not intended to command that the scire facias should be then instantly issued, or never afterwards. The language used is: “It shall and may he lawful,” &c.; and this clearly shows, that the design of the Legislature was what we have declared. If it be issued in any reasonable time thereafter, we think it is lawful. And this scire facias was issued within such reasonable time. Judgment affirmed.