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Сн. 6.
Art. 2.

plt., or against the surviving defts. or deft., the writ or action shall not be thereby abated, but such death being suggested on the record, the action shall proceed at the suit of the surviving plts. or plt., or against the surviving defts. or deft. Survivorship, as it respects the rights of property or the rights of actions or remedies, is altogether a matter of contract. The estate survives, or goes to the survivor, only among joint tenants. And a joint estate only arises by the act of the parties. But to encourage commerce and husbandry, a stock on a farm, or a stock used in a joint undertaking in trade, Co. Lit. 181, though occupied jointly, is an interest in common, and the

183.

Salk. 205.

Mass. S. J. Court, Essex

Nov. 1800,

Foster v.

Hooper, jr. 3 Bac. Abr.

share of one dying, goes to his representatives and not to the survivor. But joint interests in chattels, goods or debts, covenants and contracts go to the survivor. When a joint estate survives, the survivor does not claim from his deceased companion, but under the original grant or devise, which created a joint interest.

2. The remedy on joint contracts survives even among merchants; for if a note be given to two partners in trade, and one dies, the other, as survivor, alone must sue for and recover the debt; but it is only the remedy that survives, not the interest.

§3. Three men gave a joint note, one died, and it was ad judged that the action lay only against the survivors, and not against the administrator of the one deceased. The facts were stated in the declaration and demurrer thereto. And the survivors or survivor only are liable in equity, as well as in law. A personal action once suspended by the voluntary act of him entitled to it is forever. gone 5 Johns. R. 68.-2 Johns. R. v. Thompson. 471, 477. See Ch. 29, a. 4, 3, 5, and 5, 2, where this mat-2 Hen. & ter is explained.

697-2 Ver

non 99.

3 Wils. 72 to 118, Thomas

M. 124.

Mass. Act of
Feb. 26,
1800, At-

well, admr.
v. Milton

4 Hen. & M. 253, 256.

2 Johns. R. 213, 221,

rich & al.

§ 4. By this act the goods and estate of each deceased debtor on every joint contract, after made or implied, are liable for the payment of his debts thereon, the same as on a joint and several one, hereby the creditor may sue the administrator of the one deceased or the survivor. So was, and now, by statute, so is the law in Virginia.

5. If a partnership be liable, as for duties on the goods imported, and the government &c. take a bond for them from Tom v. Good- one of the partners, he only is liable to an action. The government had its election to hold them all liable, as the importers of their common property, to take security for the duties from all of them; but when the government made its election, and took security for them by deed from one of them, this became the only security the government was entitled to, and by its own act, and of course the others ceased to be

A like princi-
ple 4 Johns.
R. 461, 469.
Sluby v.
Champlin.

chargeable. One of five partners gave the bond, and held also his surety had a remedy only against him.

$6. Assumpsit lies by a surviving partner against the administrator of the deceased one, for property he withdrew from the joint stock, he dying insolvent, and the partnership concerns being unsettled; action being on a promise to account implied.

7. The suing out the writ is the commencement of the action, to which the cause of action must be prior. The cause of action must be complete, when the plt. sues out his writ.

CH. 7.
Art. 1.

15 Mass. R. 116, 125, Wilby v. Phinney admr. of Har

rison.

1 Caines 69.

2 Johns. R. 342.-See

Ch. 20, a. 7,8.

CHAPTER VII

ACTIO PERSONALIS MORITUR CUM PERSONA: ACTIONS ON CON-
TRACTS SURVIVE, ON TORTS DIE WITH THE PARTIES &c.

ART. 1. § 1. Wherever the testator could be sued on a 2 Bac. Abr. contract, his executor may be. Cro. Jam. 405.

444, 445.-
1 Salk. 314.-
2 Ld. Raym.

§ 2. Trover does not lie against an executor for a conversion by the testator. Plea, the testator was not guilty: judg- 971.—1 Ld. ment arrested. In this case Lord Mansfield and the court Raym. 40.Cowp. 372,

Collins v.

60.-Toller's L. of Ex. 460, 461.-Of. Ex 127.

The tort of enticing an

ed.

laid down this rule. 1. Where the cause of action is money Hambly v. due, or a contract to be performed, gain or acquisition of the Trott, admr. testator, by work and labour, or property of another, or a pro- Tennett, mise to the testator, expressed or implied, the action sur- Palm. vives; but where the cause of action is a tort, or arises ex 330.--Stra. delicto, supposed to be by force, against the peace, there the action dies, as battery, false imprisonment, trespass, words, nusances, obstructing lights, diverting a water-course, escape against the sheriff, &c. These as to the cause of action, or any injury to the person of the deceased or his freehold. apprentice 3. 2. As to those which survive or die in respect to the may be waivform of the action. No action in which the declaration must 2 Maule & be in form, quasi vi et armis, et contra pacem, or where the plea Sel. R. 191, must be, that the testator was not guilty, can lie against the v. Stewart. executor. The action is ex delicto, and all private criminal Cites Bailey injuries or wrongs, as well as all public crimes, are buried v. Birtles & with the offender. An action on the custom against a carrier al. ex.-Th. Raym. 71.is for a tort; the plea is, not guilty, and so lies not against the Toller 461.executor; but assumpsit, which is another action for the same See several cause, will lie. So if a man take a horse from another, and cases, bring him back again, trespass will not lie against his executor, 395, 405, and though it would against him; but an action for the use and hire principle ex

202, Foster

1 Johns. R.

amined.

Сн. 7.
Art. 1.

2 T. R. 549,
Atterson v.
Vernon.-
Toller 462.-

of the horse will lie against the executor. The plt. alleged he was possessed of a cow, which he delivered to the testator to keep for the plt's. use, which the testator sold, and converted the money to his own use, and neither he nor the executor had paid. Held, the executor was liable; but obliged on this state of facts to plead, the testator was not guilty. The jury found him guilty. Judgment arrested, for it is a tort.

4. In this case Lord Kenyon said, if one cut my trees and die, I cannot have trespass against his executor, for the tort dies with him; but I may sue for the value of the trees, Cowp. 376.-- and recover it out of his assets, so waive the tort.

3 Mass. R. 228, Barnard v. Harring

5. In trover the action dies with the deft., and his executor is not compellable to come and defend. So battery, ton.-3 Mass. Noy's Maxims 14. R. 321, Petts

v. Hale. See Ch. 171, a.

6. But the executor of the plt. in replevin, who dies pending the suit, shall be admitted to prosecute; or may be 13, 15.- summoned &c.

9 Co. 87, 91,

Fentor's case.
-1 Saund.
216, 219,
Wheatly v.
Lane.-Noy's
Maxims 14.
6 Mod. 126,

and Co. L.
53, 54.

Salk. 12, Williams v. Ca

case.-See

7. The law in this respect has been much altered since Coke's time. Then it had been long doubted if assumpsit being called trespass on the case, lie against executors, but in Fentor's case it was resolved on much consideration, that on the assumpsit of the testator an action lay against his executor. 1. Because the testator could not wage his law. 2. Because the debt remained due. 3. More just it should be paid, than that his executor should convert his goods to his own use &c. It was further resolved, that the plt. need not aver assets in the deft's. hands. Waste dies with either party; dies with the wife if her husband commit it. Secus of a term.

8. The executor of J. S. sued the sheriff, for that the rey-3 Salk. testator sued out a scire facias against A, whereon the sheriff 149, the same levied the whole debt, and returned he had levied so much, only part; on motion in arrest of judgment it was said, this was a personal tort. The court resolved there was a difference between mesne process and the case of an execution; for by levying the goods a right was vested in the testator; but on mesne process it is a tort that dies with the testator.

post, False Return.

Salk. 252,
253, 295,

Mordant v.
Thorold.-

646.

9. If tenant in dower have judgment to have the value of the damages, costs, and mesne profits and waste, and die before the damages be ascertained by writ of inquiry, her

1 Ld. Raym. administrator cannot have a scire facias; for if the damages had been ascertained, they had vested in her as a debt, and her administrator should have them. But she dying before final judgment, and when the damages were due to her only by way of a satisfaction for an injury, which is in nature of a trespass, and the writ of inquiry being in the nature of a personal action for them, it died with her.

CH. 7.

Art. 1.

Blainfield v.

10. In this case an administrator brought trover on the testator's possession, and judgment for the plt., and there was no objection that the action died with the intestate. So trespass for burning the intestate's mills. 1 Day's Ca. in E. 180. $ 11. A obtained judgment against B as executor, A died, Salk. 285, and his executor brought debt on this judgment against B, March. suggesting a devastavit in A's life time, and had judgment by Salk. 314, nil dicit in 6 B. Now error being brought, it was objected the Berwick v. plt. was not privy to the judgment, and should have first brought scire facias; but the court held the action lay for A's executor, the wrong being done to A, though not against an executor of a wrong-doer; and that the executor may as well maintain this action, as debt for an escape where the testator might; that the tort was to the property of the testator-and the next case.

Andrews.

Rutland.

174.

§ 12. By 4 Ed. 3, and 31 Ed. 3, an executor or adminis- Cro. El. 377, trator may have trespass or trover, for the goods of the de- Rutland v. ceased taken in his life time; so for trespass; so for trespass 1 Com. D. with cattle in his close; so trespass to his grass. At common 332.—1 Vent. law these actions died with the party; and so is the case still 187-Jones of all actions for injuries to the person of the deceased, as 1 Day's cases assaults or batteries &c. And these actions were given for 180.-Off. Ex. 67, 68. the recovery of the value of the goods. § 13. On a view of all the cases on this head the distinc- Saville 40, tion seems to be this: if unascertained damages belong to one for an injury, they die with him, or with the other party; Cro. Car. but otherwise if ascertained by judgment, and a right has ac- 539. crued to them as to property, or if damages be due on any contract, or assumpsit expressed or implied, the right to them

survives.

Perkinson r.
Gilford.-

14. Case against a sheriff, for his deputy's default in not 7 Mass. R. returning an execution, survives to the judgment creditor's 317, Paine v. administrator.

Almer.

Ventr.

168.-Off.

Ex. 65.

Shaw.--Com.

15. Under the 4 Ed. 3, c. 7, the executor of the testa- Toller's L. of tor may have an action for any injury to his personal estate, Ex. 433, 434. including his leasehold premises, or for cutting growing corn 187.-Latch on his freehold lands, and carrying it away at the same time, but not trees, grass, &c. And at common law the executor 1 Scho. & has replevin for goods distrained in the testator's life time; or Lefroy's R. detinue for a specific chattel; or ejectment for a term for 264, Adair r years; for in these cases the thing itself is the object of the D. Admʼr. B. action, and the property continues in the plt. But on 4 Ed. the executor or administrator in fact sues for the property only, and not for any injury to the person of the deceased, nor where he must declare vi et armis or contra pacem. And if he have his debtor in execution, and the officer let him escape, and after the creditor dies, his executor has escape, as the suit

13.-Cro.

Car. 297.

Сн. 7.

Art. 1.

Toller 460, 426. Com.

D. Adm'r. B. 14, 15.

13 Mass. R. 454, 455, Cravath v. Plympton, Adm'r. of Goodenow.

2 Inst. 382.

Mass. Statute

March 13,

really is for property only. Dyer 322; Ld. Raym. 973. So as to a false return, 4 Mod. 404; 3 Bac. Abr. 98; so error to reverse the testator's attainder, Latch 167; so an action of deceit and auditâ querelâ, id. and Off. Ex. 71. If the deceased imprison one, or divert a water-course, or slander one, or incur a penalty on a penal statute, or commit a nusance, and die; the action therefor dies with him, and no action lies against his executor or administrator. 3 Bl. Com. 302. If A convert B's goods, and die, B cannot have trover against A's executor. But if A sold them for money, B has assumpsit against A's executor for money had and received, (waiving the tort.) True distinction in Cowper 376, 377.

16. The plt. originally commenced this action on the case against the said Goodenow, late a deputy sheriff &c., for a non-feasance, in neglecting to levy an execution for the plt. on the body of his debtor. The intestate pleaded not guilty and died before trial. The next term his administrator moved the action be dismissed, on the ground it did not survive against him. The court supported not the action, and the true distinction seems to have been taken, namely: when one by a tortious act acquires another's property, an action lies against the wrong-doer's executor or administrator; but if by such act the wrong-doer had no gain, the action dies with him. See Hambly v. Trott, administrator, s. 2 above, in which action it was decided that actions ex delicto, as trover, assault and battery, defamation, imprisonment, nusance, trespass, and escape against the sheriff, die with the party. But when the wrong-doer, by his tortious act, acquires another's property, as by cutting his trees and converting them to his own use, or so converting his goods, an action of trespass or trover will not lie, but the law gives some action suited to the case, to recover the property tortiously obtained, or the value of it. Assumpsit is often this action.

§ 17. This statute has altered the common law, as to actions of 1805, c. 99. against the executors and administrators of the sheriff, making them liable to suits for the mal-feasance or non-feasance of the sheriff or his deputy; but does not make so liable the executors or administrators of the deputy sheriff.

1806.

1 Co. L. 302. -1 Cruise

257.

1 Caines R.
Bogert v.
Hildreth.-
Kirby's R.

§ 18. If the lessee for years be guilty of permissive or other waste, and dies, the cause of action dies with him, and no action lies against his executors or administrators, but for waste while they are in possession.

§ 19. Actions transitory. An action against a sheriff for an escape is so; but the deft. has the common privilege of changing the venue on the usual affidavit; so an action qui tam may be 401.-Gilbert brought in the county where the plt. lives, though the offence 2 Johns. Ca. 335, 338, Barnes v. Kenyon, Glen v. Hodges.

v. Marcy.

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