ACTIO PERSONALIS MIORITUR CUM PERSONA

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ACTIO PERSONALIS MIORITUR CUM PERSONA


ACTIO PERSONALIS MIORITUR CUM PERSONA. That a personal action dies with the person, is an ancient and uncontested maxim. But the term personal action,requires explanation. In a large sense all actions except those for therecovery of real property may be called personal. This definition wouldinclude contracts for the payment of money, which never were supposed to diewith the person. See 1 Saund. Rep. 217, note 1. 2. The maxim must therefore be taken in a more restricted meaning. Itextends to all wrongs attended with actual force, whether the affect theperson or property and to all injuries to the person only, though withoutactual force. Thus stood originally the common law, in which an alterationwas made by the statute 4 Ed. III. c. 7, which gave an action to an executorfor an injury done to the personal property of his testator in his lifetime,which was extended to the executor of an executor, by statute of 25 Ed. III.c. 5. And by statute 31 Ed. III. c. 11, administrators have the same remedyas executors. 3. These statutes received a liberal construction from the judges, butthey do not extend to injuries to the person of the deceased, nor to hisfreehold. So that no action lies by an executor or administrator for anassault and battery of the deceased, or trespass, vi et armis on his land,or for slander, because it is merely a personal injury. Neither do theyextend to actions against executors or administrators for wrongs committedby the deceased. 13 S. 184; Cowp. 376; 1 Saund. 216, 217, n. 1; Com. Dig241, B 13; 1 Salk. 252; 6 S. & R. 272; W. Jones, 215. 4. Assumpsit may be maintained by executors or administrators, in thosecases where an injury has been done to the personal, property of thedeceased, and he might in his lifetime have waived the tort and sued inassumpsit. 1 Bay's R. 61; Cowp. 374; 3 Mass. 321; 4 Mass. 480; 13 Mass. 272;1 Root, 2165. An action for a breach of a promise of marriage cannot bemaintained by an executor, 2 M. & S. 408; nor against 13 S. & R. 183; 1Picker. 71; unless, perhaps, where the plaintiff's testator sustainedspecial damages. 13 S. & R. 185. See further 12.S. & R. 76; 1 Day's Cas.180; Bac. Abr. Ejectment, H11 Vin. Abr. 123; 1 Salk. 314; 2 Ld. Raym. 971 1Salk. 12 Id. 295; Cro. Eliz. 377, 8 1 Str. 60 Went. Ex. 65; 1 Vent. 176 id.so; 7 Serg. & R. 183; 7 East, 134-6 1 Saund. 216, a, n. 1; 6 Mass. 394; 2Johns. 227; 1 Bos. & Pull. 330, n. a.; 1 Chit. Pi. 86; 3 Bouv. Inst. n.2750; this Dictionary, tit. actions; Death; Parties to actions; Survivor.

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