An action on the case will not lie against the executors of a
deceased marshal where executions had been placed in the hands of
the marshal and false returns made on some of them and imperfect
and insufficient entries on others.
The rule respecting abatement is this: if the person charged has
received no benefit to himself at the expense of the sufferer, the
cause of action does not survive. But where, by means of the
offense, property is acquired which benefits the testator, there an
action for the value of the property survives against the
executor.
As to the form of action, none will lie at common law against an
executor where the general issue plea is "not guilty."
In August, 1841, the United States brought an action of trespass
on the case against the defendants as executors of Beverly Daniel,
late marshal, and at May term, 1843, a verdict was found for the
plaintiffs, subject to the opinion of the court upon the following
case stated.
Beverly Daniel, being in his lifetime marshal of the District of
North Carolina, certain executions, at the instance of the United
States, from the District Court of Newbern, came to the hands of
one of the deputies of the said marshal, who, in the name and on
behalf of his principal, made false returns upon some of them and
imperfect and insufficient entries on others. After the death of
Daniel, this action on the case was brought against the defendants,
his executors, to recover damages for the said false and
insufficient returns, and it is contended on the part of the
defendants that the action will not lie and is not sustainable
against them as executors, and it is agreed by the parties that
judgment shall be rendered for the plaintiffs upon the said verdict
if the court shall be of opinion that such action is sustainable;
otherwise, the said verdict to be set aside and the said action to
be discontinued.
The judges being divided in opinion, the cause came up to this
Court upon a certificate of such division.
Page 47 U. S. 12
MR. JUSTICE McLEAN delivered the opinion of the Court.
This case is brought here from the District of North Carolina on
a certificate of a division of opinion by the judges under the act
of Congress.
A jury, having been empanelled to try the issues joined,
Page 47 U. S. 13
found for the plaintiffs and assessed their damages at seven
hundred seventy-five dollars and eighty cents. This verdict was
taken by consent of parties subject to the opinion of the court on
the following case.
"Beverly Daniel, being in his lifetime marshal of the District
of North Carolina, certain executions, at the instance of the
United States, from the District Court of Newbern, came to the
hands of one of the deputies of the said marshal, who, in the name
and on behalf of his principal, made false returns upon some of
them and imperfect and insufficient entries on others. After the
death of Daniel, this action on the case was brought against the
defendants, his executors, to recover damages for the said false
and insufficient returns, and it is contended that the action will
not lie and is not sustainable against them as executors, and it is
agreed by the parties that judgment shall be rendered for the
plaintiffs upon the said verdict if the court shall be of the
opinion that such action is sustainable; otherwise, the said
verdict to be set aside, and the action to be discontinued."
And on a motion being made for judgment, the opinions of the
judges were opposed on the point reserved.
No action will lie against an executor for a personal wrong by
the testator. Com.Dig. Administrator, B. Nor does it lie against
the executor of a jailer for an escape. Ibid. Waste does not lie
against an executor or administrator, nor an action upon a penal
statute. So trover is said not to lie against an executor upon a
trover and conversion by his testator, though a different form of
action will lie for the same cause. Cowper 371.
If the person charged has secured no benefit to himself at the
expense of the sufferer, the cause of action is said not to
survive; but where, by means of the offense, property is acquired
which benefits the testator, there an action for the value of the
property shall survive against the executor. And it is laid down in
Cowper 376 with respect to the form that no action survives where
the plea of the defendant must be "not guilty," but where the case
survives, some other form must be pursued.
If the deputy marshal, in the misfeasance complained of,
received money or property, the marshal being responsible for such
acts, the cause of action survived against his executors. But this
is not the case made in the present action. It is an action on the
case requiring the general issue of "not guilty." If a liability
were shown against the deceased marshal, it could not be enforced
against his executors in this form. No action, where the plea must
be that the testator was not guilty can
Page 47 U. S. 14
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. 3 Bac.Abr. 539.
The provision in the 10th section of the North Carolina statute,
"to prevent the abatement of suits in certain cases" -- which
declares that an action of trespass on the case &c., shall not
abate by the death of either party -- does not affect the above
question.
This Court thinks that the action, in the form prosecuted, is
not maintainable, and it
Directs the fact to be so certified to the circuit
court.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
North Carolina and on the point or question on which the judges of
the said circuit court were opposed in opinion and which were
certified to this Court for its opinion, agreeably to the act of
Congress in such cases made and provided, and was argued by
counsel. On consideration whereof it is the opinion of this Court
that the action in the form prosecuted will not lie. It is
thereupon now here ordered and adjudged by this Court that it be so
certified to the said circuit court.
