Сн. 7. 2T. R. 549, 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 § 5. In trover the action dies with the deft., and his execuv. Harring- tor is not compellable to come and defend. So battery, ton.-3 Mass. Noy's Maxims 14. v. Hale. See R. 321, Petts 6. But the executor of the plt. in replevin, who dies pending the suit, shall be admitted to prosecute; or may be summoned &c. Ch. 171, a. 13, 15. 9 Co. 87, 91, 7. The law in this respect has been much altered since Fentor's case. -1 Saund. Coke's time. Then it had been long doubted if assumpsit 216, 219, being called trespass on the case, lie against executors, but in Wheatly v. Lane.-Noy's Fentor's case it was resolved on much consideration, that on Maxims 14 the assumpsit of the testator an action lay against his executor. 6 Mod. 126, 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. and Co. L. 53, 54. Salk. 12, Williams v. Ca case.-See 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, Mordant v. 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. $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. CH. 7. Art. 1. Blainfield v. Andrews. 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. Rutland. § 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. 174. Gilford. § 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 Perkinson v. 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. 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. 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, 1 Ventr. 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. years; for in these cases the thing itself is the object of the D. Adm'r. B. action, and the property continues in the plt. But on 4 Ed. 13.-Cro. the executor or administrator in fact sues for the property on- Car. 297. ly, 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 Сн. 7. Toller 460, 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 de426-Com. ceased imprison one, or divert a water-course, or slander one, D. Adm'r. B. or incur a penalty on a penal statute, or commit a nusance, and 14, 15. 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. 13 Mass. R. 454, 455, Cravath v. Plympton, Adm'r. of Goodenow. 2 Inst. 382. Mass. Statute $ 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 March 13, 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. 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. Kirby's R. T. Marcy.- was committed in another county. See Marshall v. Hosmer, CH. 7. Art. 1. Day's Ca. Coleman T. 1 Dicken's v. Cotton. ingdon v. Rumnill. 9 Johns. R. 387, Martin v. Payne. $21. An attorney's liability for negligence &c. If by it 3 Day's cases his client's debt be not recovered by the attorney, he may of 390, Huntcourse be liable, yet not for the loss of the evidence of it of course, and if sued may show his client has recovered his debt by another remedy, or that he has another remedy. $22. Per quod servitium amisit; the principles on which this action is grounded. So long as a father remains liable to maintain his daughter under age, he has a right to reclaim her services, and the relation of master and servant will be presumed from this right: as where a daughter 19 years old, with her father's consent, lived with her uncle, and worked for him when she pleased, and he agreed to pay her for her work, but no agreement for continuing in his house any time; when there she was seduced and got with child, and soon after returned to her father's, who maintained her and paid the expense of her lying in; she had no intention to return to him had not this misfortune happened. Held, he had a right to recover in this action on the principles above stated; but as the loss of service is the sole ground of this action, the father, in every case, must show he is entitled to the service, and has lost it by the deft's. wrongful conduct. See cases, ch. 5, a. 7; ch. 59, a. 6, s. 9; ch. 85; ch. 173, a. 5. The daughter was a witness to prove the facts. In this case the father had made no contract hiring out his daughter, he retained the legal control he had over her services; hence the relation of master and servant remained, and her volition or intention not to return, could not affect his right. 5 East 45, 49, seems contra, for it does not appear Сн. 8. the father had lost his legal control over the services of his minor daughter, and the case seems to have turned on her intention not to return to her father's house. 10 Johns. R. 115, 117, Nicholson v. Stryther, a father cannot have trespass for seducing his daughter, or getting her with child, per quod &c., where she is above the age of 21 years, unless she is actually in his service, so as to constitute the relation of master and servant. 2 Phil. Evid. 157; Fores v. Wilson, Peake's N. P. 55. CHAPTER VIII. 1 Selwyn N. P. 1, Morcar ty's case, A. D. 1781. Imp. M. P. 143, 147.Owen 36.Lev. 24. 1 Dal. 339. 1 Selw. N. P. -1 Bac. Abr. 19. ACCOUNT. ART. 1. The action of account is founded on contract and privity in law, or by provision of the parties, and must be for things uncertain. 1. As this action is founded on contract, on which assumpsit in most cases lies, it is not often necessary to bring this kind of action. But as the court, of its own authority, can appoint auditors to adjust the accounts between the parties, which in some cases may be long and intricate, and very perplexing to a jury, it may often be useful, especially where there is no court of chancery, to enforce the settlement of such accounts in this form of action, and in which too the parties in many cases can be examined on oath. §2. As this action of account is founded on contract, all who make it must be joined in the action. § 3. In this action there must be privity between the parties; and the deft. must not be a person, who has any claim in the thing to be accounted for. 4. At common law this action lay against one as guardian in socage, bailiff, or receiver, or by one in favor of trade 1.-1 Salk 9. and commerce, against another, wherein both were named mer-Co. L. 172. chants. By a bailiff is understood a servant who has charge of lands, goods, and chattels, to make the best benefit for the owner, and to have his reasonable charges and expenses deducted, and is accountable for the profits he reasonably might have made and by a receiver is understood one who receives monies, and is to render an account of them; but he is allowRaym. 1223. ed only such charges and expenses as are agreed upon by the parties and the plt. must state by whose hands the deft. received the monies, that he may know in season the nature of the charge, and how to defend against it. Imp. M. P. 148.-3 Bl. Com. 162, 163.-Plow. 14.-2 Ld. -2 Salk 558. : |