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.2

The action of debt on simple contract, except for rent,3 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;5 and the reason of this was, that executors or administrators, when charged for the [*909] 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 sec. 14 it is enacted, that an action of debt on simple contract shall not 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 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; 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. But, by stat. 4 1 Corner v. Shew, 3 M. & W. 350, 352. See per Alderson, B., Prior v. Hembrow, 8 M. & W. 889, 890.

2 Wentworth v. Cock, 10 A. & E. 42 (37 E. C. L. R.). Narwood v. Read, Plowd. 180.

4

8

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

5 Riddell v. Sutton, 5 Bing. 206 (15 E. C. L. R).

3 Bla. Com., 16th ed., 347, and n. (12). 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. As to a set-off by an executor sued as such, see Mardall v. Thellusson, 6 E. & B. 976 (88 E. C. L. R), s. c., 18 Q. B. 857 (83 E. C. L. R.).

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

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

*

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 [*910] action against the trespassers, in like manner as they whose executors they are should have had if they were living.1 This Act has 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."

And here we may remind the reader that the right of an executor to the personal estate of the testator is derived from the will, and the property in the personal goods and chattels of the testator is vested in him immediately upon the testator's death, and he is deemed to be in legal possession of them from that time, though before probate granted. The title of an administrator, however, is derived from the letters of administration, though it has relation back, for many purposes, to the date of the death; for instance, trespass has been held maintainable by an administrator for an act done between the death, and the *grant of the letters of administration. Detinue, however, will not lie by an

[*911]

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.

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.

31 Wmns. on Executors, 6th ed., 738 et seq.; 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.

Williams v. Gray, 1 Ld. Raym. 40; Com. Dig. "Administration" (B. 13). 5 Per Holt, C. J., Berwick v. Andrews. 2 Lord Raym. 973. See Palgrave v. Windham, 1 Stra. 212; Le Mason v. Dixon, Sir W. Jones 173.

6 Judgm., Pemberton v. Chapman, 7 E. & B. 217 (90 E. C. L. R.); citing Smith v. Milles, 1 T. R. 480.

7 Tharpe v. Stallwood, 5 M. & Gr. 760 (44 E. C. L. R.); recognised Foster v. Bates, 12 M. & W. 226. See Welchman v. Sturgis, 13 Q. B. 552 (66 E. C. L. R.). In Bodger v. Arch, 10 Exch. 333, the doctrine of relation was also held applicable, under peculiar circumstances, so as to prevent the operation of the Statute of Limitations. See per Parke, B., Id. 339, 340.

administrator for goods of the intestate, which the defendant has re-delivered prior to the grant of administration.'

In regard to the doctrine of relation just mentioned, we may add, in the words of a very learned judge, that "an act done by one who afterwards becomes administrator to the prejudice of the estate, is not made good by the subsequent administration. It is only in those cases where the act is for the benefit of the estate, that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby prevent it from being prejudiced and despoiled."

Previously to the stat. 3 & 4 Will. 4, c. 42, no remedy was provided for injuries to the real estate of any person deceased committed in his lifetime;3 but section 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.*

[*912]

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."

Again, prior to the 9 & 10 Vict. c. 93, (amended by 27 & 28 Vict. c. 95,) an action was not maintainable against a person who,

1 Crossfield v. Such, 8 Exch. 825.

2 Per Parke, B., Morgan v. Thomas, 8 Exch. 307.

31 Wms. Saund, 217, n.

See Adam v. Inhabs. of Bristol, 2 A. & E. 389, 402 (29 E. C. L. R.); 1 Wms. on Executors, 6th ed., 748.

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

by his wrongful act, occasioned the death of another; but by sect. 1 of that statute 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 [*913] 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,3 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 person deceased; or if there be no executor or administrator of the deceased, or such action as aforesaid be not brought within six calendar months after his death, then it may be brought in the name or names of all or any of the persons for whose benefit the personal representatives of the deceased would have sued. 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, 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." And, 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, there

1 These words have reference, "not to the nature of the loss or injury sustained, but to the circumstances under which the bodily injury arose, and the nature of the wrongful act, neglect, or default complained of:" thus, if the deceased had by his own negligence materially contributed to the accident whereby he lost his life, inasmuch as he, if living, could not have maintained an action for damages, although there had been negligence on the part of the defendant, an action would not lie under the statute: Pym v. Great Northern R. C., 2 B. & S. 759, 767 (110 E. C. L. R.).

4

2 S. 5.

* Id. ; see Dickinson v. North Eastern R. C., 2 H. & C. 735.

* 27 & 28 Vict. c. 95, s. 1; see also s. 2; Read v. Great Eastern R. C., L. R.

3 Q. B. 555; et vide stat. 31 & 32 Vict. c. 119, ss. 25, 26.

fore, affect the class of cases above mentioned, viz., where a tort is committed to the person which does not occasion death.1

By the statute 3 & 4 Will. 4, c. 42, s. 2, already mentioned, trespass and case will also lie against personal *representatives [*914] 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. 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; and, even now, no action can be maintained against them under that statute for a personal tort committed by him. Cases, however, do occur where an action founded in tort may be brought in assumpsit, and such an action will, it seems,5 independently of the above Act, lie against the executor. For instance, the executors of an innkeeper have been held answerable for the value of articles lost *by the plaintiff whilst staying in the inn kept by the deceased.7

[*915]

1 See, further, as to the operation of the above statute, Broom's Com., 4th ed., 715 et seq.

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

1 Wms. Saund. 216, n. (1). See Bacon v. Smith, 1 Q. B. 348 (41 E. C. L. R.). 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; Bro. Abr., "Detinue," pl. 19; Le Mason v. Dixon, Sir W. Jones, 173, 174. See Crossfield v. Such, 8 Exch. 825. 1 Wms. Saund. 216, n. (1); Com. Dig., "Administration" (B. 15); 2 Inst. 382; Ireland v. Champneys, 4 Taunt. 884. 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, 5th ed., 1567; Huntley v. Russell, 13 Q. B. 572 (66 E. C. L. R.). As to the liability of the executor of an executor for a devastavit by the latter, see Coward v. Gregory, L. R. 2 C. P. 153.

Ante, p. 907, n. 2.

6 Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373; recognised, 4 B. & Ad. 829 (24 E. C. L. R.).

7 Morgan v. Ravey, 6 H. & N. 265. See stat. 26 & 27 Vict. c. 41.