deceased in person.' They are also liable on covenant by deceased *for their performance of a particular act, as for payment of [705] a sum of money;2 for building a house left unfinished by the deceased; or on his contract for the performance of work by the plaintiff, before the completion of which he died, but which was subsequently completed. 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.5

The action of debt on simple contract, except for rent, did not, however, formerly lie against the personal representative for a debt contracted by the deceased,' unless the undertaking to pay originated with the representative; 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. Now, however, by stat. 3 & 4 Will. 4, c. 42, s. 13, *wager of law is abolished; and by sect. 14 it is [*706] enacted, that an action of debt on simple contract shall be

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

2 Ex parte Tindal, 8 Bing. 404, 405; E. C. L. R. 21; and cases there cited; Powell v. Graham, 7 Taunt. 580; E. C. L. R. 2.

3 Quick v. Ludborrow, 3 Bulstr. 30; recognised 1 M. & W. 423.(*) See per Cur.,

1 Cr. & J. 405, 406; per Lord Abinger, C. B., 3 M. & W. 353, 354.(*)

4 Corner v. Shew, 3 M. & W. 350, 352.(*) See per Alderson, B., Prior v. Hembrow, 8 M. & W. 889, 890.(*)

5 Wentworth v. Cock, 10 Ad. & E. 42; E. C. L. R. 37.

6 Norwood v. Read, Plowd. 180.

Executors, 3d ed. 1351, 1513.

7 Barry v. Robinson, 1 N. R. 293.

See 1 Selw., N. P., 10th ed. 600; Williams on

See Chit. & H., Statutes, 24, n. (1).

* Riddle v. Sutton, 5 Bing. 206; E. C. L. R. 15. 93 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. A set-off for money due from the plaintiff to a testator in his lifetime, may be pleaded to a declaration on a cause of action which accrued to the plaintiff from the defendants, as executors after the testator's death: Blakesley v. Smallwood, 15 L. J., Q. B. 185.

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 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 representatives by the statute law; it being a general rule that an action founded on tort, and in form ex delicto, was considered as actio personalis, and within the above maxim. 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. This act, moreover, has [*707] always been expounded liberally; 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." Case also lies by an executor against a sheriff for a false return to a fi. fa. made in the lifetime of testator, or for an escape on final process.7

3

6

Previously to the statute 3 & 4 Will. 4, c. 42, no remedy was provided for injuries to the real estate of any person deceased committed in his lifetime: but sect. 2 of that statute enacts, that an

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

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

3 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.

4 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.

51 Williams on Executors, 3d 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. See Doe d. Stace v. Wheeler, 15 M. & W. 623, (*) where it was held that two of three co-executors may recover lands of their testators in ejectment on a joint demise.

6 Williams v. Grey, 1 Ld. Raym. 40; Com. Dig., "Administration," (B. 13.)

7 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.

81 Wms. Saund. 217, n.

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 persons, 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.' 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.2

*Notwithstanding, however, the statutory exceptions above noticed to the general rule which was recognised by the com[*708] mon 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.3

Again, prior to the recent statute 9 & 10 Vict. c. 93, an action was not maintainable against a person who, by his wrongful act, occasioned the death of another; but by sect. 1 of that act, it is enacted, that "whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." By sect. 2, it is further enacted, "that every such action shall be for the benefit of the wife, husband, parent, and child, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the

1 See Adam v. Inhabitants of Bristol, 2 Ad. & E. 389, 402; E. C. L. R. 29; 1 Williams on Executors, 3d ed. 630; 2 Chit. Arch. Pr., 7th ed. 1180.

2 Tharpe v. Stallwood, 6 Scott, N. R. 715; recognised, Foster v. Bates, 12 M. & W. 226.(*)

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

person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, [*709] *after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct." By sect. 3, the action for damages must be brought within twelve calendar months after the death of such deceased person. It will be observed, that this statute only applies where death ensues from the particular wrongful act, and does not, therefore, affect the class of cases above mentioned, viz., where a tort is committed to the person which does not occasion death.

By the statute 3 & 4 Will. 4, c. 42, s. 2, above mentioned, 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 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.' 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 represen[*710] tatives of the tort-feasor; and, even now, no action *can be

maintained against them by that statute for a personal tort committed by him.3 Cases, however, do occur where an action

I With reference to this statute, see Richmond v. Nicholson, 8 Scott, 134; Powell v. Rees, 7 Ad. & E. 426; E. C. L. R. 34.

21 Wms. Saund. 216, n. (1); 2 Williams on Executors, 3d ed. 1358. See Bacon v. Smith, 1 Q. B. 348; E. C. L. R. 41. 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.)

31 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. By stats. 30 Car. 2, st. 1, c. 7, and 4 & 5 Will. & M., c. 24, s. 12, the representatives of an executor or administrator who has committed waste are rendered liable: see 2 Wms. on Executors, 3d ed. 1358.

founded in tort may be brought in assumpsit, and such an action will, independently of the above act, lie against the executor.1

In a recent case, where the question arose, whether the reigning sovereign was liable to make compensation for a wrong done by the servants, and during the reign of his predecessor? Lord Lyndhurst, C., observed, that if the case had been between subject and subject, an action could not have been supported, upon the principle that actio personalis moritur cum persona; and although it was contended that a different rule prevails where the sovereign is a party, that some authority should be adduced for such a distinction.2

For a tort committed to the person, it is clear, then, that at common law no action can be maintained against the personal representative of the tort-feasor, nor does it seem that the recent stat. 9 & 10 Vict. c. 93, supplies any remedy against the executors or administrators of the party who, by his "wrongful act, neglect, or default," has caused the death of another; for the first section of this act renders that person liable to an action for damages, "who would have been liable if death had not ensued," in which case, as already stated, the personal representatives of the tort-feasor would not have been liable.

:

*It may be observed, in concluding this subject, that there [*711] are many cases respecting the rights 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 tort sustained by him and likewise respecting the right of action by or against a feme covert, surviving her husband, for an injury to her person or property, or for her tortious act committed before or during coverture; which cases are exceedingly similar in principle, and analogous to those which have been here cited and commented on. It cannot, however, be said with propriety that the maxim above illustrated is strictly applicable to such cases; and it has, therefore, been thought better to confine our attention to those in which the right of action or liability either survives the death of the party, or, in the words of the maxim, moritur cum persona.3

1 Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373; recognised, 4 B. & Ad. 829; E. C. L. R. 24. See, also, per Patteson, J., Bird v. Relph, 4 B. & Ad. 830; E. C. L. R. 24; Wise v. Metcalfe, 10 B. & C. 299, 308; E. C. L. R. 21; Troup v. Smith's Executors, 20 Johns. R. (U. S.) 33.

2 Viscount Canterbury v. Attorney-General, 1 Phill. 322.

3 See the Judgment in Drake v. Beckman (in error), 11 M. & W. 315, (*) reversing S. C., 8 M. & W. 846; (*) 9 M. & W. 79;(*) Bacon v. Smith, 1 Q. B. 345, 348; E. C.