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JOHN HENSHAW, PLAINTIFF, v. JOHN R. MILLER

December 1, 1854

JOHN HENSHAW, PLAINTIFF,
v.
JOHN R. MILLER, EXECUTOR OF CHARLES E. MILLER, DECEASED.



THIS case came up from the circuit court of the United States for the eastern district of Virginia, on a certificate of division in opinion between the judges thereof. Henshaw was a citizen of Massachusetts, and brought an action on the case against Charles E. Miller, in his lifetime, for fraudulently recommending one Robinson as worthy of credit, in consequence of which the plaintiff had incurred considerable loss. After issue joined upon the plea of not guilty, Miller died, and on motion of the plaintiff a scire facias was issued for the purpose of reviving the suit against John R. Miller, his executor. Upon the return of the scire facias, the executor moved to quash it, when the judges were divided in opinion whether the action survived the executor, or abated; and the question was certified to this court. It was submitted, upon printed arguments, by Mr. Heath, for the plaintiff, and by Mr. Lyons and Mr. Stannard, for the defendant.

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

Mr. Heath, for the plaintiff, made the following points:––

For the plaintiff, Henshaw, it is insisted: That, under the law of Virginia, an action upon the case founded upon a tort by which the estate of the plaintiff was diminished or damaged, may be revived against the defendant's personal representative. That in Virginia, if the form of the action be trespass, or trespass upon the case, and if the loss or damage be merely pecuniary in its nature, and the remedy sought, being pecuniary, is entirely adequate, then the cause of action survives for or against the personal representative.

For the common-law doctrine, as modified by the statute 4, Edward III. ch. 7; Hambly v. Trott, 1 Cow. 375; Wheatley v. Lane, 1 Saund. 216, a; 1 Wms. Ex'ors, 668.

For the state of the law in Virginia on this point: See 1st vol. Rev. Code, 1819, 390, § 64; Supplement to Rev. Code, 1819, 258, ch. 196; Monroe v. Webb's Ex'ors, 4 Munford, 73; Lee v. Cooke's Ex'or, Gilmer, 331; Code of 1850, 544, § 20.

The common-law maxim, actio personalis moritur cum persona, unmodified by any statute, would undoubtedly apply to this case. But that rule was so manifestly unjust and unreasonable in its general application, that its operation has been constantly narrowed by statutory regulation, aided by liberal judicial construction in favor of right, until it is at this day almost reduced within bounds where reason and convenience would sutain it.

It was first confined by judicial interpretation to actions ex delicto, where the action sounded, merely in damages. It was afterwards still further restricted by the statute 4 Edward III. ch. 7, de bonis asportatis, which was extended by a wise and liberal construction to all cases supposed to come within the reason, though not within the words of the rule. So that this statute has been construed to extend to 'any injury to personal property, whereby it has been rendered less beneficial to the executor, whatever the form of the action may be.' Note (1) Wheatley v. Lane, 1 Saund. 217; 1 Wms. on Ex'ors, 668.

Under this construction of that statute, in England, the case under consideration would survive to the executor. That statute is not in force in Virginia, but the enactment contained 1 Rev. Code, 1819, § 64, 390, is founded upon it, and has been construed in the same equitable manner, to effect justice, by the courts of Virginia. The case of Monroe v. Webb's Ex'ors, 4 Munf. 73, was an action upon the case against the clerk of a court, for indorsing credits on an execution, to the injury of the plaintiff. It is true that case went off on other grounds, but it was not questioned by the court that the action would lie against the executor; and the conclusion is irresistible, that it was admitted on all hands that the cause of action survived. So, pursuing the same equitable construction, in Lee v. Cooke's Ex'or, Gilmer's Virginia R. 331, it was held, that § 64, ch. 104, 1 Rev. Code, 1819, is an extension of 4th Edw. III. ch. 7, de bonis asportatis, and that trespass for the mesne profits of land, recovered in ejectment against A., lies against his executor.

These authorities show the spirit in which the court of Appeals of Virginia are disposed to construe that remedial statute: that it has been decided to give it an equitable construction, so as to extend it to cases coming within the mischief intended to be prevented. Such is the case at bar. And it is insisted, that as the law was before the Code of 1850, which rules this case, the case at bar would have survived against the executor of the defendant. But the course of legislation, as well as of judicial construction, has been constantly to narrow the application of this technical maxim, Actio personalis, & c., and the act of the Virginia Assembly, ch. 131, § 20, 544, Code 1850, cuts it up by the roots, in all actions in respect of property or estate, real and personal, wherever the action is for a pecuniary or property injury, as contradistinguished from a personal injury, which can never be adequately compensated in damages. That enactment is as follows: 'An action of trespass, or trespass on the case, may be maintained by or against a personal representative, for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of, by his decedent.' Code, 1850, 544, § 20. This act is founded upon, and is an extension of the English statute, 3 and 4 Wm. IV. ch. 42, § 2, which, among other things, enacts: 'That an action of trespass, or trespass on the case, as the case may be, may be maintained against the executor or administrator of any person deceased, for any wrong committed by him in his lifetime to another, in respect of his property, real or personal.'

The case at bar is one where, by the wrongful act of the defendant, the plaintiff was damaged in his personal estate to the amount of $3,000. If he was entitled to compensation out of the estate of the defendant when alive, why is he not entitled to compensation out of the same estate in the hands of the defendant's executor? What principle of reason, convenience, or justice would be violated by affording such a remedy? The statute of Virginia just cited, plainly intended to afford such a remedy. The case at bar comes within the very letter of the statute. But even if the construction were doubtful, surely the court would adopt that view which so manifestly is essential to enable the court to do justice between these parties. The case of United States v. Daniel, 6 How. 11, has no direct application; that being a question under the laws of North Carolina. But the reasoning of that decision is in furtherance of the view here taken.

The following note of the argument for the defendant is taken from the brief of Mr. Stannard.

On behalf of the defendant, the court is referred to 1 Wm. Saund. 217(a), note (1), to show that in England, not only at common law, but even under the liberal construction given by their courts to statute 4 Edw. 3, ch. 7, such a case as the present would fall fully within the influence of the maxim Actio personalis moritur cum persona; for it is there expressly laid down 'that the statute of Edw. 3 does not extend to injuries done to the person or to the freehold of the testator, therefore an executor or administrator shall not have an action of assault and battery, false imprisonment, slander, deceit, diverting a watercourse, obstructing lights, cutting trees, and other actions of the like kind, for such causes of action shall die with the person.' And in the United States v. Daniel, 6 How. 13, this court expressly holds, that: 'No action where the plea must be that the testator was not guilty, can lie at common law against the executor. Upon the face of the record the action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.' It will, it is supposed, scarcely be contended, in the face of these authorities, that this action survived against the executor at common law.

Neither, it is submitted, is there any thing in the statute law of Virginia changing the rule of the common law in this respect. The only statutes in force, relating to this subject, at the institution of this suit will be found in the Revised Code of 1819, vol. 1, 390, § 64, and the Supplement to Revised Code, 258, ch. 196; and these statutes continued in force till the revisal of 1849, when they were substituted in the present Code of Virginia, (which took effect on the 1st July, 1850,) by the 20th section of chapter 130. See Code of Va., 544, § 20.

The first of the above-cited statutes provides, that actions of trespass for goods taken or carried away in the lifetime of the testator or intestate, may be maintained against, as well as by executors, &c.; and in that respect it extends the provisions of the statute of 4 Edw. III. which gives a remedy only to executors, and not against them. But, in other respects, its language is much less comprehensive than that of the English statute, as was remarked by Judge Green, in the case of Thweatt v. Jones, 1 Rand, 331, where he says that: 'Our statute, without any such title or general words as are found in the title and in the enacting clause of the English statute, gives the action of trespass for goods taken or carried away, and provides for that case only substantively, and not by way of example.' And therefore that eminent jurist doubted whether the statute in question was susceptible of the broad and liberal construction which had been given by the English courts to the statute of 4 Edw. III. It was probably to remove the doubt thus expressed by such high authority, that shortly after the report of the case Thweatt v. Jones, decided in 1823, namely, on 9th March, 1827, the second of the above-cited acts was passed. Supp't R. C. 258, ch. 196. That statute provides: 'That if any person shall commit a trespass, either by injuring or destroying the slaves or other personal property of another, &c., the action shall survive,' and thus establishes by legislative enactment the same rule which prevailed in England, by judicial construction, under the common law, as modified the statute of 4 Edw. III. ch. 7. It certainly did not establish a ...


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