Fairley v. Davis

GOLDTHWAITE, J. We think this action is within the maxim, that personal actions die with the person, although in form, it is an action ex contractu. We have examined the authorities referred to by the counsel for the defendant in error, but find nothing in them to warrant the impression that this action will survive. Indeed, the very absence of all direct authority on this point, is persuasive, that it has never been supposed to be of that class. In the case of Kirkham v. Wheely, [3 Salk. 282,] it is said that when the informer, in such an action as this, dies, there is an end of the suit, and the King is not entitled until recovery had. In 1 Viner’s abridgement. 212, it is said, that if the common informer die,the attorney general may proceed for the crown. This would scarcely have been said, unless the suit abated as to the common informer. On looking into the cause of Hammer v. Gryffith, [Cro. El. 583,] we perceive in a case where the informer died, Lord Coke, (then attorney general) inquired of the court if he might not proceed for the queen; and the court held that he might; for the reason that it had been allowed to an informer to proceed for his part, notwithstanding a nolle prosequi by the crown; and so likewise, when the queen will pardon, for it is only as to her part. In the absence of any authority, leading to the conclusion that such suits survive, we are constrained to declare our conviction, that they do not. Whether the State was entitled to proceed in the matter, is not a question for us now to decide. Judgment reversed.