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principle that the account rested in the privity and knowledge of the testator only (a); but this action is since given to executors by the statute of Westm. 2 (13 Edw. I. stat. 1, c. 23), to executors of executors by 25 Edw. III. stat. 5, c. 5, and to administrators by 31 Elw. III. stat. 1, c. 11. So if the goods, &c., of the testator taken away continue in specie in the hands of the wrongdoer, it has been long decided that replevin and detinue will lie for the executor to recover back the specific goods, &c. (e) ; or in case they are sold, an action for money had and received to recover the value (f). So the executor of an assignee of a bail-bond might have brought an action upon it; for it was an interest vested which went to the executor (g).

The executor or administrator is the only representative of a deceased that the law will regard in respect of his person- how far the execalties, and no word introduced into a contract or obliga- the testator in his tion can transfer to another his exclusive rights derived contracts : from such representation.

The representation of the deceased, in matters of contract, by his executor or administrator is so complete, that, generally representation of speaking, it is not necessary, in order to transmit to the deceased by execexecutor or administrator a right of enforcing a con

trator complete. tract, that he should be named in the terms of it. Thus if money be payable to B., without naming his executor, yet *his executor or administrator shall have an action for it (a). So if money be payable to A. or his assigns, his executor shall take it : for he is assignee in law (i). But if one enters into an obligation, conditional to pay 201. to such person as the testator shall by bis last will appoint, and the testator makes no particular appointment ; his executors cannot maintain an action for this 201.: for though they are his assignees in law, yet the assignee here must be an assignee in deed (k). So if an annuity be given to B. without saying to his executors and administrators, during the life of the testator's wife, upon condition that he

utor or adminis


(d) Co. Litt. 89, b. 2 Inst. 404.

(e) Le Mason o. Dixon, Sir W. Jones, 173, 174. 1 Saund, 217, note (1).

(f) 1 Saund. 217, note (1).

(g) Nott 0. Stephens, Fortesc. 367. Com. Dig. Administrator (B. 13).

(!) Com. Dig. Admor. (B. 13). Where, however, personal considerations are of the foundation of the contract, as in cases of principal and agent, and master and servant, the death of

either party puts an end to the relation ; and in respect of service after the death, the contract is dissolved unless there be a stipulation express or implied to the contrary : Farrow v. Wilson, L. R. 4 C. P. 745, 746.

(i) Pease v. Mead, Hob. 9. Went. Off. Ex. 215, 14th edit.

(k) Hob. 9, 10. 1 Roll. Abr. 915, Executors (X.) pl. 2. Post, Ch. II.

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cum persona.

he civil to the wife, and B. dies before the wife, his executor shall not have it ; for it was personal to B. (1).

But it was a principle of the common law, that if an injury was Ancient common

done either to the person or property of another, for Jawanide action per which damages only could be recovered in satisfaction, moritur

the action died with the person to whom, or by whom the wrong was done. Thus where the action was founded on any malfeasance or misfeasance, was a tort, arose ex delicto, such as trespass for taking goods, &c., trover, false imprisonment, assault and battery, slander, deceit, diverting a watercourse, obstructing lights, escape,


many other cases of the like kind, where the declaration imputes a tort done either to the person or the property of another, and the plea under the old pleading must have been "not guilty,” the rule was actio personalis moritur cum persona. But this rule received Stat. 4 Edw. III. considerable alteration by the statute 4 Edw. III. c. 7,

de bonis asportatis in vita testatoris, which reciting, *that in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators carried away in their life, and so as such trespasses have remained unpunished, enacts, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner as they, whose executors they be, should have had if they were living. And this remedy is further extended to executors of execuStat. 25 Edw III. tors, by 25 Edw. III. stat. 5, c. 5, and to administrators

by an equitable construction of the former statute (m). The act 4 Edw. III. being a remedial law, has always been expounded largely: and though it makes use of the word trespasses only, has been extended to other cases within the meaning and intent of the statute (n). Therefore by an equitable construction of the statute,

c. 7.

8. 5. c. 5.

(1) Neal v. Hanbury, Prec. Chan. 173. See also Barford 0. Stuckey, 1 Bingh. 225.

(m) This is stated by Mr. Sergeant Williams in 1 Saund. 217, to be by the stat. 32 Edw. III. c. 11 : But that statute only gives an action to the administrator to recover as executor the debts due to the intestate. See Mr. Fraser's pote to Pinchon's Case, 9 Co. 89, a.

(n) Emerson 0. Emerson, 1 Ventr. 187. Le Mason o. Dixon, Sir W. Jones, 174. So Lord Ellenborough in Wilson

v. Knubley, 7 East, 134, says, “It is a very ancient statute passed at a period when no great precision of language prevailed, and the body of the Act does not speak of actions on trespass, though the instance put is proper for such an action, but it speaks of actions for a trespass done to the testator's goods; and it enacts that executors in such cases shall have an action against the trespassers; apparently using the word trespass as meaning a wrong done generally, and the trespassers as wrongdoers.”

The executor may

an executor or administrator shall now have the same actions for any injury done to the personal estate of the deceased in his lifetime, whereby it has become less beneficial to the now have an ac

tion for all inju. Executor or administrator, as the deceased himself might ries to the pereon.

al estate, whereby have had, whatever the form of action may be (o). it has become less

beneficial to him, So that he now may have trespass or trover (P); an whatever the form

of action may be. action against the sheriff for a false return in the lifetime of the testator (); debt on a judgment against an executor sug*gesting a devastavit (r); an action for removing goods taken in execution before the testator (the landlord) was paid a year's rent (s); an action to recover the price paid by the intestate for valueless shares on the faith of fraudulent prospectus (t): an action to restrain the infringement of a registered trademark with the usual claim for an account of profits and damages (u): an action for falsely and maliciously publishing a statement calculated to injure the right of property of the testator in a' trademark (v), and other actions of the like kind for injuries done to the personal estate of the deceased in his lifetime (x). But if the cause of action is in substance an injury to the person, the personal representative cannot maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury (y).

So an executor or administrator may have a quare impedit for a disturbance in the time of his testator or intestate, by the equity of the statute 4 Edw. III. c. 7 (z). So the personal representative of a termor may maintain ejectment, where the testator had a lease for

(0) 1 Saund. 217, n. (1). See Lockier (y) Pulling v. Great Eastern Ry. Co., 0. Paterson, 1 Carr. & K. 271.

9 Q. B. D. 110, 112. (p) Russell's Case, 5 Co. 27, a. Rut- (2) Wentw. Off. Ex. 164, 14th edit. land o. Rutland, Cro. Eliz. 377.

Smallwood v. Bishop of Coventry, Cro. (9) Williams 0. Cary, 4 Mod. 403 : Eliz. 207. S. C. Savil. 94, 118. Owen, for this was not properly an injury done 99. 1 Lutw. 1. 1 And. 241. 1 Leon. to the person of the testator, but it was 205. 4 Leon. 15. It appears from the rean injury to his estate : 3 Bac. Abr. 98, port of the case in Lutwiche, Anderson, Exors. (P. 2). See also Spurstow v. and Saville, that the testator had only a Prince, Cro. Car. 297.

chattel interest in the advowson : But, (r) Berwick v. Andrews, 1 Salk. 314. semble, that the law is the same where (9

) Palgrave r. Wyndham, 1 Stra. he was seised in fee ; for the ground of 212.

the decision is, that the void term was (9) Twycross o. Grant, 4 C. P. D. 40. a chattel which would have gone to the (u) Oakey o. Dalton, 35 C. D. 700. executor if the disturbance had not (c) Hatchard r. Mege, 18 Q. B. D. been : Cro. Eliz. 207. See ante, pp. 771.

*592, *593, et seq. (1) 1 Saund. 217, n. (1).

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years, or from year to year, whether the ouster was before or after his death (a). So he *might have had debt on the statute for not setting out tithes due to the testator (b).

But the statute of Edw. III. does not extend to injuries done to the Actions for torts person (c), or to the freehold of the testator.

Therefore to the person or an executor or administrator shall not have actions of not survive to the assault or battery, false imprisonment, libel (d), slander,

deceit, nor (unless by virtue of the stat. 3 & 4 Wm. IV. c. 42, s. 2, hereafter to be mentioned) (e) for diverting a watercourse, obstructing lights, or other actions of the like kind : for such causes of action still die with the testator ($).

Since actions founded on wrongs to the freehold do not survive, it is clear that the executor cannot (unless by virtue of the statute just cited) maintain trespass quare clausum fregit (9), nor an action merely for cutting down trees (), or other waste in the lifetime of the testator on his freehold (i). So if a man cut the growing corn of the testator and let it lie, no action can be maintained by the executor (k); but if the corn be cut and carried away, (although he cannot have an action of trespass quare clausum fregit and blada asportavit (1) he may have trespass de bonis asportavit on the statute of Edward III.: And even where the executor declared that the defendant blada cres. centia upon the freehold of the testator messuit defalcavit et *asportavit, it was held, in Emerson v. Emerson (m), that the action well lay, and that the allegation of messuit and defalcavit only described the manner of taking the corn away. It was said in that case, that if the grass of the testator be cut and carried away at the same time, no action will lie for the executor, because the grass is part of the free

(a) Slade's Case, 4 Co. 95. a. More (1) 1 Saund. 217 a, n. (1). ton's Case, 1 Ventr. 30. Doe o. Porter, (9) Bro. Executor, pl. 120. 3 T. R. 13. He was held entitled to an (h) Williams 0. Breedon, 1 Bos. & ejectione firme : Bro. Abr. Executors, Pull, 329. 45. Russell 0. Prat, cited 1 And. 243. (i) Godolph. Pt. 2, c. 22, s. 2. The Peytoe's Case, 9 Co. 78 6.

executor of the lessor clearly could not (6) Holl v. Bradford, 1 sid. 88. Mor- have an action of waste (now abolished), ton 0. Hopkins, 1 Sid. 407. Moreton's for waste committed in the lifetime of Case, 1 Vent. 30. But he could not the testator ; for he had no right to reenforce payment of tithes such as his cover the place wasted, the inheritance testator never claimed : Cart v. Hodg- of which has descended to the heir : kin, 3 Swanst. 160.

Wentw. Off. Ex. 163, 14th edition. (c) See Denman, J., in Pulling o. G. (k) Emerson v. Emerson, 1 Vent. 187. E. Ry. Co., 9 Q. B. D. 110, 113.

(1) Ibid. (d) Hatchard e. Mege, 18 Q. B. D. 771. (m) 1 Vent. 187. (e) Post, p. *702.

hold ; but corn growing is a chattel (n): and the like distinction is taken in Wentworth's Office of an Executor (o) between a trespass in destroying or taking away corn growing, and a trespass in grass or wood growing ; because though the testator should have died before severance, the corn would have gone to the executor (p), whereas the wood and grass would have gone to the heir. However, it should appear from the case of Williams v. Breedon (9), that an action may be maintained by an executor against the man who has cut down and carried away the trees of the testator, for taking and carrying away “the goods and chattels, to wit, the wood, timber and boughs of the deceased in his lifetime." So where grass is mowed by a trespasser, and carried away as hay, an action of trover and conversion for so many loads of hay is doubtless maintainable by the executor (r).

*A distinction is suggested by the author of the Office of an Execator, with reference to the estate of the owner of land : for assuming that where the land is his freehold or to chattels real. copyhold inheritance, no action should be given to his executor for wood or grass destroyed in his lifetime ; yet where he is but tenant for years, or tenant by extent, so that the very estate in the land was to come to the executor (together with quicquid plantatur solo), the executor or administrator, in the opinion of the author, ought to have, together with the estate in the soil, the action to punish the trespasser upon the soil (8).

In Adam v. The Inhabitants of Bristol ((), a point was raised with

Actions for torts

(n) See ante, p. *623, et seq.
(O) P. 166, 14th edit.
(p) See ante, p. *623, et seq.
(9) 1 Bos. & Pull. 330.

(r) Went. Off. Ex. 167, 14th edit. The author of that work expresses his opinion that the executor ought to be able to maintain an action on the statute Edw. III. in the case of meadow-grass consumed by the mouths of the cattle of a trespasser, in the following curi. ous language, pp. 167, 168 : “When meadow-ground, which yearly conceiveth (Sol sine homine generat herbam), shall be ready to be delivered of her burthen, if a stranger put in a herd of cattle which swallow up and tread down this fruit of her womb before the mower with his scythe come as a mid

wife to help her delivery, if then, by the hasty death of the owner, before action brought, this great trespass should be dispunishable, it were contrary, as methinks, to the purpose of the said statute, and a great defect in the law,” The same author proceeds to distinguish the case of the testator dying before the time for mowing, and his surviving till the hay time was clearly past : in the latter case, it is said, the executor certainly ought to have his action, because if the trespass had not been committed, the grass would have been a chattel severed, and the personal estate would have been increased.

(8) Wentw. Off. Ex. 169, 14th edition. (1) 2 Adol. & Ell. 389.

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