Mason, 1 N.C. 167, 1 Mart. 167 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 167, 1 Mart. 167

Mason and Davy.

Trin. 2 Car.

THE question was, whether an action on the case lies against a sheriff for escape, in the life of the testator: the escape being on a mesne process, viz. a latitat ? It was said it does not lie, quia actio personalis moritur cum persona. Dyer 271, a and 322 a. The heir shall not be charged for an escape suffered by his ancestor, and 32 H. 8. Waste does not lie against the executor. But where the thing is to be recovered, such actions go to the executor. Ejectione firmœ lies for an executor, where the testator was ejected. But here the thing itself, is not to be recovered and therefore the case is not within the equity of the statute, de bonis asportatis in vita testatoris. 4 Ed. 3. 7. p. 63. But the other matter makes this point much stronger, for it was by mesne process; and if the party himself dies before the imprisonment, the defendant being imprisoned upon mesne process shall be discharged; but it is otherwise when he is imprisoned on a capias ad satisfaciendum. Also, the declaration is that the testator took out a latitat against I. S. in order to charge him on an obligation, &c. which cannot be known or traversed.

Jermyn, e contra.

An executor shall not be charged for an escape, although he may have an action upon it. So an account lies for, but not against, him. Although it is a personal action, and it died with the person of the testator at common law, yet it is otherwise now, for it is within the statute de bonis asportatis. As replevin lies for an executor for a taking in the life of the testator. F. Executor 106, and F. account 257. 7 H. 4. 25. But he cannot have an action of trespass, unless within the equity of the statute. If tenant by elegit recovers in assise, and dies, and his executor be ousted, under the statute he may have a rediffeisin, 7 H. 4. 7. Ejectione firmœ is within the equity of the statute. Dyer 201. Attaint lies against an executor, although the statute speaks only of the party. So in 6 Rep. 8. Phitton's case, The statute pardons the party; the executor shall have the benefit of it. *In this case the taking of the body is in the nature of a pledge. 5 Rep. 27. Trover and conversion lies by an executor on a conversion in the life time of the testator.

Calthrop [on the same side.]

F. N. B. 121. If a man recovers a debt and damages, and the party is imprisoned and escapes, and the plaintiff dies, his executor shall have an action, for the sheriff, by the escape, is instantly become the debtor.

Doderidge, J.

The tort continues to the testator during his life, and after his death, his testament cannot be so well performed.

Jones, J.

This seems to me to be a mere personal tort, for which there is no remedy; for it cannot be within the statute de bonis asportatis; and at common law, the executor cannot have trespass. But replevin or detinue, the executor may have: for the property still continues. He could not have ejectione firmœ, at common law, for the thing itself was not recoverable. But he may have covenant, or quare ejecit infra terminum. But by the equity of the statute now he shall have ejectione firmœ, ravishment of ward, and quare impedit. It was so adjudged in 32 and 33 El. in C. B. in the case of the Bishop of Lichfield, that she execute or shall have a quare impedit of a disturbance to the testator and in 40, 41 El. in C. B. and afterwards on a writ of error here, it was adjudged that trover and conversion lies on an act in the life of the testator. This case at common law, was a mere tort, and the executor cannot have trespass. It seems that the stature does not reach this case: for the arrest. and imprisonment cannot be said to be de bonis or catallis of the testator.

Whitlock, J.

This is a personal tort, and may be considered in two points of view; either as a crime to be punished, in which case moritur cum persona; or as an injury to the party, in which case it is reasonable that the executor should have a remedy.

Adjournatur : and afterwards it was argued by the court.

Doderidge, J. and Whitlock, J. pro quærente. It is no injury to the person of the testator, but to his estate; and as action lies for the executor, who, as to the personal estate, represents the person of the testator. Therefore the action well lies, under the equity of the statute.

Crew, C. J. and Jones, J. e contra. The action did not lie at common law, and this is not de bonis et catallis, within the statute.

Jones, J. But I will not say it would be so, if the escape was after a capias ad satisfaciend.

Doderidge, J. and Whitlock, J. Bona et catalla are properly personal chattels, but *by equity this has been extended to the realty, as ravishment of ward, ejectione firmœ, quare impedit, trover and conversion.

The court say they would determine the point, one way or the other, in the course of the term.

Nota. The statute extends to a tort, to the personal estate, but not to an injury to the person, or inheritance, as waste &c. 1 Roll. 913. Noy 87. Jones 173. Poph. 189. Bendl. 200. 3 Car. 297. 1 Car. 141. 207.