Agamst representatives.

sonalis is applicable, unless some damage done to the personal estate of the deceased be stated on the record (z). But, where the breach of a contract relating to the person occasions a damage, not to the person only, but also to the personal estate; as, for example, if in the case of negligent carriage or cure there was consequential damage—if the testator had expended his money, or had lost the profits of a business, or the wages of labour for a time; or if there were a joint contract to carry both the person and the goods, and both were injured; it seems a true proposition, that, in these cases, the executor might sue for the breach of contract, and recover damages to the extent of the injury to the personal estate (a).

The personal representatives, on the other hand, are liable, as far as they have assets, on all the covenants and contracts of the deceased broken in his lifetime, and likewise on such as are broken after his death, for the due performance of which his skill or taste was not required (b), and which were not to be performed by the deceased in person (c). They are also liable on a covenant by deceased for their performance of a particular act, as for payment of a sum of money (d), for building a house left unfinished by the deceased (e); or on his contract for the performance of

(z) Judgment, 2 M. & S. 415, 416. See Knights v. Quarles, 2 B. & B. 104.

(a) Judgment, Beckham v. Drake, 8 M. & W. 854, 855; S. C., reversed in error, 11 M. & W. 315. This was an action by a bankrupt for breach of an agreement to serve the defendants as foreman; but it was held, in the Exchequer Chamber, that the right to sue passed to the assignees.

(b) Per Parke, B., Siboni v. Kirkman, 1 M. & W. 423; per Patteson, J., Wentworth v. Cock, 10 A. & E.

445, 446; Bac. Abr." Executors and Administrators," (P. 1); Com. Dig. "Administration,” (B. 14).

(c) Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; per Curiam, Marshall v. Broadhurst, 1 Cr. & J. 406.

(d) Ex parte Tindal, 8 Bing. 404, 405, and cases there cited; Powell v. Graham, 7 Taunt. 580.

(e) Quick v. Ludborrow, 3 Bulstr. 30; recognised, 1 M. & W. 423. See per Cur., 1 Cr. & J. 405, 406; per Ld. Abinger, C. B., 3 M. & W. 353, 354.

work by the plaintiff, before the completion of which he died, but which was subsequently completed (f). And the same principle was held to apply where an intestate had entered into an agreement to receive from plaintiffs a certain quantity of slate monthly for a certain period, a portion of which, when tendered after his death, but before the expiration of the stipulated period, his administrator refused to accept (g).

The action of debt on simple contract, except for rent (h), did not, however, formerly lie against the personal representative for a debt contracted by the deceased (i), unless the undertaking to pay originated with the representative (j) ; and the reason of this was, that executors or administrators, when charged for the debt of the deceased, were not admitted to wage their law, and, consequently, were deprived of a legal defence which the deceased himself might have made use of; but this reason did not apply to assumpsit, which, therefore, might always have been brought (k). Now, however, by stat. 3 & 4 Will. 4, c. 42, s. 13, wager of law is abolished; and, by sect. 14, it is enacted, that an action of debt on simple contract shall be maintainable in any court of common law against an executor or administrator.

It is, however, to actions in form ex delicto that the rule actio personalis moritur cum personâ is peculiarly applicable; indeed, it has been observed that this maxim is not applied in the old authorities to causes of action on contracts, but to

(f) Corner v. Shew, 3 M. & W. 350, 352.

(g) Wentworth v. Cock, 10 A. & E. 42.

(h) Norwood v. Read, Plowd. 180. See 1 Selw. N. P., 10th ed., 600; Williams on Executors, 3rd ed., 1351, 1513.

(i) Barry v. Robinson, 1 N. R. 293.

See Chit. & H. Statutes, 24, n. (1).
(j) Riddell v. Sutton, 5 Bing. 206.
(k) 3 Bla. Com. 16th ed., 347, and
n. (12); 2 Selw. N. P., 10th ed.,
796, 797. In Perkinson v. Gilford,
Cro. Car. 539, debt was held to lie
against the executors of a sheriff, who
had levied under a fi. fa., and died
without paying over the money.

Actions ex

delicto by

presentative

those in tort which are founded on malfeasance or misfeasance to the person or property of another; which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representative by the statute law (1); it being a general rule that an action founded in tort, and in form ex delicto was considered as actio personalis, and within the above maxim (m). However, by statute 4 Edw. 3, c. 7, reciting, that, in times past, executors had not had actions for a trespass done to their testators,-as of the goods and chattels of the said testators carried away in their lifetime,—it is enacted, that the executors, in such cases, shall have an action against the trespassers, in like manner as they whose executors they are should have had if they were living (n). This act, moreover, has always been expounded liberally (0); and, by virtue of it, executors may maintain ejectment, quare impedit, trover, or replevin, the conversion or taking having been in the testator's lifetime (p). Case also lies by an executor against a sheriff for a false return to a fi. fa. made in the lifetime of testator (q), or for an escape on final process (r).

Previously to the statute 3 & 4 Will. 4, c. 42, no remedy was provided for injuries to the real estate of any person

(1) Per Lord Abinger, C. B., 2 C., M. & R. 597.

(m) Wheatley v. Lane, 1 Wms. Saund. 216, n. (1).

(n) An administrator is within the equity of this statute; (Smith v. Colgay, Cro. Eliz. 384); and, by stat. 25 Edw. 3, st. 5, c. 5, a similar remedy is extended to the executors of executors.

(0) See per Lord Ellenborough, C. J., Wilson v. Knubley, 7 East, 134, 135; 1 Wms. Saund. 216, n. (1); Emerson v. Emerson, 1 Ventr. 187.

(p) 1 Williams on Executors, 3rd ed., 622, 626, 697; Bro. Abr. “Executors," 45; Doe d. Shore v. Porter, 3 T. R. 13; Rutland v. Rutland, Cro. Eliz. 377; Com. Dig. "Administration," (B. 13); 1 Wms. Saund. 217, n.

(q) Williams v. Grey, 1 Ld. Raym. 40; Com. Dig. “ Administration,” (B. 13).

(r) Per Holt, C. J., Berwick v. Andrews, 2 Ld. Raym. 973. See Palgrave v. Windham, 1 Stra. 212; Le Mason v. Dixon, Sir W. Jones, 173.

deceased committed in his lifetime (s); but sect. 2 of that statute enacts, that an action of trespass, or trespass on the case, as the case may be, shall be maintainable by the executors or administrators of any person deceased, for any injury to the real estate of such person committed in his lifetime for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person (t). It has been held that an administrator may maintain trespass for the seizure of goods of the intestate between the death and the grant of the letters of administration (u).

Notwithstanding, however, the statutory exceptions above noticed to the general rule which was recognised by the common law, this rule still applies where a tort is committed to a man's person, feelings, or reputation, as for assault, libel, slander, or seduction of his daughter: in such cases, no action lies at suit of the executors or administrators, for they represent not so much the person as the personal estate of the testator or intestate, of which they are in law the assignees (x).

By the last-mentioned statute, 3 & 4 Will. 4, c. 42, s. 2, trespass and case will also lie against personal representatives for any wrong committed by any person deceased, in his lifetime, to another in respect of his property, real or

(s) 1 Wms. Saund. 217, n.

(t) See Adam v. Inhabitants of Bristol, 2 A. & E. 389, 402; 1 Williams on Executors, 3rd ed., 630; 2 Chit. Arch. Pr., 7th ed., 1180.

(u) Tharpe v. Stallwood, 6 Scott, N. R., 715.

(x) 3 Bla. Com., 16th ed., 302, n. (9); Com. Dig. “Administration," (B. 13).

Agamst per

sonal repre

sentatives.

personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six months after the executors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person (y). Prior to this act, the remedy for a tort to the property of another, real or personal, by an action in form, ex delicto,—such as trespass, trover, or case for waste, for diverting a watercourse, or obstructing lights,— could not have been enforced against the personal representatives of the tort-feasor (z); and, even now, no action can be maintained against them by that statute for a personal tort committed by him (a). Cases, however, do occur where an action founded in tort may be brought in assumpsit, and such an action will, independently of the above act, lie against the executor (b).

It may be observed, in concluding this subject, that there are many cases respecting the right of the assignees of a bankrupt to sue, and their liability to be sued, on a contract entered into by him; their title to recover damages for a

(y) With reference to this statute, see Richmond v. Nicholson, 8 Scott, 134; Powell v. Rees, 7 A. & E. 426. (z) 1 Wms. Saund. 216, n. (1); 2 Williams on Executors, 3rd ed., 1358. See Bacon v. Smith, 1 Q. B. 348. Where chattels, wrongfully in the possession of testator, continued in specie in the hands of his executor, replevin or detinue would have been maintainable to recover the specific goods. (Ib.; Bro. Abr. "Detinue," pl. 19; Le Mason v. Dixon, Sir W. Jones, 173, 174).

(a) 1 Wms. Saund. 216, n. (1); 3

Bla. Com. 302; Com. Dig. "Administration," (B. 15); 2 Inst. 382; Ireland v. Champneys, 4 Taunt. 884; 2 Chit. Arch. Pr., 7th ed., 1181. See, also, this maxim applied, in reference to the Crown, by Lord Lyndhurst, C., in the case of Viscount Canterbury v. Reg., 7 Jurist, 227; ante, p. 390.

(b) Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373; recognised, 4 B. & Ad. 829. See, also, per Patteson, J., Bird v. Relph, 4 B. & Ad. 830; Wise v. Metcalfe, 10 B. & C. 299, 308.