Where an action on the case was brought in Virginia against a
person to recover damages for fraudulently recommending a third
party as worthy of credit, whereby loss was incurred, and after
issue joined upon the plea of not guilty, the defendant died, the
action did not survive against the executor, but abated.
The Virginia laws and cases examined.
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
Page 58 U. S. 213
action survived the executor or abated, and the question was
certified to this Court.
Page 58 U. S. 217
MR. JUSTICE DANIEL delivered the opinion of the Court.
The facts of this case and the question of law arising thereon
upon which the judges were divided are shown in the following
statement:
John Henshaw, the plaintiff in the circuit court, instituted in
that court an action on the case against Charles E. Miller to
recover of him damages for fraudulently recommending to the
plaintiff, by letter, one Porter Robinson as a person worthy of
confidence, and thereby inducing the plaintiff to make sale on
credit to the said Robinson of a considerable amount of merchandise
when the defendant knew that Robinson was unworthy of credit, and
intended fraudulently to deceive the plaintiff,
Page 58 U. S. 218
who in fact had been deceived by the recommendation given by the
defendant to Robinson and upon the faith thereof had made sales to
him, the whole amount whereof had been lost. In this case, after
issue joined upon the plea of not guilty and after several attempts
at a trial of the cause, rendered fruitless by disagreement amongst
the jury, the defendant departed this life, and on the motion of
the plaintiff a writ of
scire facias was awarded him to
revive the suit against John R. Miller, the executor of the
original defendant.
Upon the return of the
scire facias executed, the
executor moved the court to quash the process. This motion was
continued until the May term of the court, 1853, when, upon the
argument of the motion to quash the
scire facias, the
question occurred whether the action survived against the executor
of the original defendant or abated by the death of the latter, and
opinions of the judges being opposed on this question, at the
request of the counsel for the defendant, it was ordered that the
division be certified to the Supreme Court as its next session.
In considering the question presented by the certificate of
division in the circuit court, we must adopt for our guidance the
following principle -- namely that this question is to be
determined by the rule of the common law with respect to the
revival of suits except so far as that rule has been modified,
either by restriction of enlargement, by the statutory provisions
of the Virginia laws.
To the principle just mentioned we are bound to adhere, for the
following causes:
By an ordinance of the Virginia convention, passed on the 3d of
July, 1776, it was declared:
"That the common law of England, all statutes or acts of
Parliament made in aid of the common law prior to the fourth year
of the reign of James I, and which are of a general nature and not
local to that Kingdom, together with the several acts of the
general assembly of this colony now in force, so far as the same
may consist with the several ordinances, declarations, and
resolutions of the general convention, shall be the rule of
decision, and shall be in full force until the same shall be
altered by the legislative power of his colony."
At a subsequent period, namely on the 27th of December, 1792,
the Legislature of Virginia, by an act of that date, after reciting
the ordinance above mentioned, declared and enacted as follows,
namely:
"Sec. 2. That whereas the good people of this commonwealth may
be ensnared by an ignorance of acts of Parliament which have never
been published in any collection of the laws, and it hath been
thought advisable by the general assembly during their present
session specially to enact
Page 58 U. S. 219
such of the said statutes as to them appear worthy of adoption,
and do not already make a part of the public code of the laws of
Virginia."
"Sec. 3. Be it therefore enacted by the General Assembly of
Virginia that so much of the above-recited ordinance as relates to
any statute or act of Parliament shall be and the same is hereby
repealed, and that no such statute or act of Parliament shall have
any force or authority within this commonwealth."
These provisions are followed by savings with respect to rights
arising under any of the above-mentioned statutes, and as to any
crimes committed against them before this repeal, and also of the
benefit of all writs, remedial or judicial, which might have been
legally obtained or sued out of any court, or the clerk's office of
any court, of the commonwealth, prior to the commencement of the
statute.
These two enactments have been continued in force, and will be
found to be reenacted in the revisal of 1819, vol. 1, chapters 38
and 40.
The statutes, therefore, of 4 Edw. III, ch. 7, or of 3 and 4
Will. IV, or any other English statute as such cannot govern this
case nor in anywise influence its decision except so far as by
parity the courts of Virginia may have applied the interpretation
of those statutes by the English courts to similar provisions, if
such there be, in the laws of Virginia.
The maxim of the common law is
"actio personalis moritur cum
persona," and as this maxim is recognized both in England and
in Virginia, the interpretation of it in the former country becomes
pertinent to its exposition or application here. In England it has
been expounded to exclude all torts when the action is in form
ex delicto for the recovery of damages and the plea not
guilty. That in case of injury to the person, whether by assault,
battery, false imprisonment, slander, or otherwise, if either party
who received or committed the injury die, no action can be
supported either by or against the executors or other personal
representatives. 1 Saund. 217, n. 1; 2 M. & Sel. 408. And so
express and strict have been the applications of this maxim of the
common law by the English judges as to have established the rule
that for the breach of a promise to marry, although the action is
in form
ex contractu, yet the cause of action being in its
nature personal, the executor of the party to whom the promise was
made cannot sue.
And again that for the breach of the implied promise of an
attorney to investigate the title to a freehold estate the executor
of the purchaser cannot sue without stating that the testator had
sustained some actual damage.
Vide 4 Moore 532; 2 B. &
B. 102, and 2 M. & Sel., before mentioned. This has been ruled
even under the alleged relaxation of the common law
Page 58 U. S. 220
maxim in virtue of the statutes of 4 Edw. III. cap. 7, and 3 and
4 Will. IV. cap. 42. By the English courts it has been also ruled
that although the statutes which have conferred upon executors the
right to maintain actions in certain cases arising
ex
delicto do not limit that right to instances of a literal
asportation of the goods or assets, yet they confer the right of
action upon the executor in instances solely of actual injury to
personal property whereby that property has been rendered less
beneficial to the executor. 2 M. & Sel. 416.
Let us see how far the common law maxim has been modified in
Virginia either by express statutory language or by judicial
construction.
By the 38th section of chapter 128, vol. 1 of the Revised Code
of 1819, it is provided
"That where any personal action or suit in equity is now or
shall be depending in any court of this commonwealth and either of
the parties shall die before verdict rendered or final decree be
had, such action or suit shall not abate, if the same were
originally maintainable by or against an executor or administrator,
but the plaintiff; or if he be dead, his executor or administrator,
or the sheriff, sergeant, or other curator of the decedent's
estate, shall have a
scire facias against the defendant;
or if he be dead, against his executor, administrator, sheriff,
sergeant, or other curator of his estate, to show cause generally,
why such action or suit shall not be proceeded in to a final
judgment or decree."
This section of the statute provides merely against the
abatement of actions at law or suits in equity by the death of
parties, as a matter of course, but it gives no further description
of actions or suits than by reference to such designation of them
and their capacity for revival as may be deducible either from the
common law or by some statutory regulation.
By the 64th section of chapter 104, vol. 1, 390, of the same
code, it is declared:
"That actions of trespass may be maintained by or against
executors or administrators for any goods taken or carried away in
the lifetime of the testator or intestate, and that the damages
recovered shall be in the one case for the benefit of the estate,
and in the other out of the assets."
This provision of the Virginia statute, insofar as it authorizes
an action against the personal representative as well as in his
favor, is unquestionably an extension of the statute of Edward III
which confers the right of action upon the executor or
administrator, but does not authorize an action against him. But
although the former statute is certainly an extension of the latter
with respect to the parties for or against whom the right of action
is given, it has been doubted, and upon very high authority upon
the point, whether with respect to the class of
Page 58 U. S. 221
subjects to which the right of action is authorized, the statute
of Virginia does not operate a material restriction upon the
provision of the English statute. The statute of Edward III is thus
entitled "Executors shall have an action of trespass for a wrong
done to the testator," and reciting
"that in times past, executors have not had actions for a
trespass done to their testators, as of goods and chattels carried
away in their life, and so such trespasses have hitherto remained
unpunished."
It is enacted that
"The executors in such cases shall have an action against the
trespassers, and recover their damages in like manner as they whose
executors they be should have had if they were in life."
In the interpretation of this statute, the courts in England
have ruled that the right conferred on the executor to maintain
trespass for a wrong done to the testator must, with reference to
the language of the times when the statute was passed, signify any
wrong, and that the instance put -- namely "as of the goods and
chattels of the same testators carried away in their life" -- was
put in the statute only as an instance or illustration, and by way
of limiting the right to injuries to personal property, and not as
restrictive to the single or particular form of injury, and that
the statute must be construed to extend to every description of
injury to personal property by which it has been rendered less
beneficial to the executor, so that the executor may support
trespass or trover, case for a false return to final process, and
case or debt for an escape. Ld.Raym. 973.
The provision of the statute of Virginia by which the right of
action by or against the personal representative as to torts is
conferred is introduced by no preamble or declaration by which any
object or purpose beyond its literal terms may be implied. It is a
simple section of the statute concerning wills, intestacy, and
distribution, and clearly defines the single instance in which
trespass may be maintained by the personal representative; the
instance of "goods taken or carried away in the lifetime of the
testator or intestate;" no other species of trespass or wrong is
enumerated or alluded to.
Vide 1 Rev.Co. of 1819, § 64,
390.
In reference to this section and in comparing it with the
statute 4 Edw. III, it has been remarked by Green, Justice, in the
Supreme Court of Virginia, that in the construction of the latter
statute,
"it has been decided that the word 'trespass,' as it was then
understood, embraced all cases of tort; that the word 'wrong' in
the title is general, and that the words 'as of the goods' &c.
were inserted only by way of example, so as to confine the remedy
to case in which the wrong affected the goods and chattels. But our
statute, without any such title or general words as are found in
the title and in the enacting clause of
Page 58 U. S. 222
the English statute, gives the action of trespass for goods
taken and carried away and provides for that case only
substantively, and not by way of example.
Vide Thweatt's
Administrator v. Jones' Administrator, 1 Randolph 331."
But this 64th section would seem to have received a more
explicit and definitive interpretation by the decision of the
Supreme Court of Virginia in the case of
Harris v.
Crenshaw, reported in the 3d of Randolph 14. That was an
action of trespass
quare clausum fregit in which there was
a verdict and judgment in favor of the defendant, who died and
whose representative was made a party by consent. The case was
carried by appeal, as is the practice in Virginia at law as well as
in equity, to the Supreme Court by the plaintiff upon exceptions
taken to instructions from the judge at
nisi prius. In
delivering the opinion of the court, Tucker, President, said:
"This is nothing more than an ordinary action of trespass
quare clausum fregit. The allegation that the trees were
cut and carried away is always inserted in the declaration when it
is intended to be proved. It did not convert the action into an
action of trespass
de bonis asportatis and take it out of
the rule
actio personalis &c. If the defendant had
died before verdict, the writ would have abated and the plaintiff
would have been deprived of damages if he had sustained any. But
there being a verdict and judgment against him by which he may be
hereafter affected in some other controversy respecting the
premises, he has a right to reverse that judgment if he can, and
was entitled to a
scire facias against the personal
representative of the appellee."
Then, in commenting upon the exceptions to the instructions from
the judge at
nisi prius, the court proceeds thus:
"The second instruction of the judge was therefore erroneous,
and the judgment is to be reversed and the verdict set aside, and
as by the death of the appellee, the appeal abated here, and there
can be no prosecution of the suit in the court below, it coming
within the rule before stated -- that is to say the rule of the
common law,
actio personalis &c., it is to be abated
here, and the proceedings certified to the court below."
By this decision of the Supreme Court of Virginia the following
positions must be taken as having been affirmed:
1. That by the rule of the common law, the right of action
founded upon torts of any and every description terminated with the
life of either participant in such tort. That this maxim or rule of
the common law governed all causes of action arising
ex
delicto in Virginia, except so far as it may have been
modified by statute.
2. That the provision of the statute of Virginia authorizing
actions for or against executors and administrators for torts
Page 58 U. S. 223
done or suffered by those whom they represent limits those
actions to instances which are essentially, or rather directly,
cases of trespass
de bonis asportatis, and cannot be made
to embrace ordinary cases of trespass
quare clausum fregit
or cases of tort generally by attempting to connect with them as an
incident the asportation of goods and chattels; much less can it be
made to cover an indirect or consequential injury to the welfare or
prosperity of a testator or intestate resulting from a fraud
practiced upon him.
There is one case from the Supreme Court of Virginia cited by
plaintiff and relied on to sustain the right of action in the
executor. It is the case of
Lee v. Cooke's Executor,
reported in Gilmer 331. This was an action for mesne profits of
land which had been recovered in ejectment. After issue made up in
the cause, the defendant died. At a subsequent term of the court,
the executors appeared by attorney and the cause was continued. At
the term next ensuing, the cause was directed to be struck off the
docket, the court thinking that the action abated by the death of
the defendant.
This decision was reversed by the Supreme Court, the latter
tribunal being of the opinion that the case was within the equity
of the 64th section of the Virginia statute, cap. 104, 1 Rev.Co.
390, and that the action, so far at least as regarded the mesne
profits, did not die with the testator. The case is very succinctly
given in the report and is accompanied with no argument showing
explicitly the grounds on which it was contested. It may have been
regarded by the Supreme Court as resting upon an implied obligation
or assumption to pay or account for profits ascertained by the
judgment in ejectment to belong to the plaintiff, and therefore as
partaking essentially of the character of a contract. Or if in any
sense the right of action could be understood as arising from the
asportation by the defendant, it must be by such an acceptation of
the phrase as will apply it to the mesne profits specifically as
being personal property belonging to the plaintiff, and actually
injured by the testator of the defendant in his lifetime. If more
than this is sought to be deduced from the case of
Lee v.
Cooke's Executor, the attempt would bring the case in conflict
with that of
Harris v. Crenshaw, and with the opinion of
Green, Justice, in the case of
Thweatt's Administrator v.
Jones' Administrator, both more recent in point of time as
well as more explicit in their interpretation alike of the English
statute and that of Virginia.
In cases analogous to the one before us, or which rather must be
viewed as identical in their essential features, the principles
hereinbefore deduced from the laws and decisions of Virginia have
been directly affirmed. Thus, in the case of
Coker v.
Page 58 U. S. 224
Crozier, in the 5th vol. of Alabama Rep. 369, it was
ruled, that in an action on the case for a fraud committed in the
exchange of horses, upon the death of the defendant the suit could
not be revived against his personal representative, the rule of the
common law forbidding such revival, and there being no statute of
the state to authorize it.
The case of
Read v. Hatch, from the 19th vol. of
Pickering's Rep. 47, bears a still stronger resemblance to the case
before us than does that just cited from the Supreme Court of
Alabama. So exact, indeed, is this resemblance, that it might with
justice be said, of the case of
Read v. Hatch, in
comparison with this under our consideration,
mutato nomine
historia narratur de te. The former was an action for
fraudulently recommending a trader as in good credit, by means
whereof the plaintiff was induced to sell him goods on credit, and
thereby sustained damage. This action was founded on the 7th
section of the 93d chapter of the Revised statutes of
Massachusetts, which provides that actions of trespass and trespass
on the case for damage done to real or personal estate shall
survive. Pending the suit the defendant died, and the plaintiff
moved to cite in his administrator. Shaw, Chief Justice, said, in
pronouncing the judgment of the court:
"The question whether the plaintiffs can cite in an
administrator, and proceed with their action, depends on Revised
Stats. ch. 93, § 7. It is contended that a false representation, by
which one is induced to part with his property by a sale on credit
to an insolvent person, by means of which he is in danger of losing
it, is a damage done to him in respect to his personal property.
But we are of opinion that this would be a forced construction. If
this were the true construction, then every injury by which one
should be subjected to pecuniary loss would, directly or
indirectly, be a damage to his personal property. But we are of
opinion that it must have a more limited construction, and be
confined to damage done to some specific personal estate of which
one may be the owner. A mere fraud or cheat by which one sustains a
pecuniary loss, cannot be regarded as a damage to personal estate.
The action is abated at common law, and, not surviving by force of
the statute, must be deemed to stand abated."
Upon full consideration of the statutes of Virginia, and of the
interpretation placed by the courts of that state upon those
statutes, and of every analogy which can be applied from similar
provisions elsewhere, we are of the opinion, that in the circuit
court this action did not survive the death of the defendant, but
abated upon the occurrence of that event, and we order it to be
certified accordingly to the circuit court, in reply to the
certificate of division.
Page 58 U. S. 225
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Virginia, and on the point or question on which the
judges of the said circuit court were opposed in opinion, and which
was certified to this Court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel.
On consideration whereof it is the opinion of this Court that this
action did not survive against the executor of the defendant, and
that it did abate by the defendant's death. Whereupon, it is now
here ordered and adjudged by this Court that it be so certified to
the said circuit court.