Hambly et Al', Assignees of Moon v Trott, Administrator
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1776 |
| Date | 24 January 1776 |
| Court | High Court |
English Reports Citation: 98 E.R. 1136
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
Referred to, Sawyer v. Goodwin, 1867, 36 L. J. Ch. 583; Peek v. Gurney, 1873, L. R. 6 H. L. 393. Discussed, Phillips v. Homfray, 1883-86, 24 Ch. D. 445; 11 App. Cas. 446. Referred to, Finlay v. Chirney, 1888, 20 Q. B. D. 503; Phillips v. Homfray, 1890, 44 Ch. D. 699.
hambly et al', Assignees of Moon versus trott, Administrator. Same day, 1776. Trover does not lie against an executor for a conversion by his testator. [Referred to, Sawyer v. Goodwin, 1867, 36 L. J. Ch. 583 ; Peek v. Gurney, 1873, L. R. 6 H. L. 393. Discussed, Phillips v. Homfray, 1883-86, 24 Ch. D. 445; 11 App. Cas. 466. Referred to, Finlay v. Chiniey, 1888, 20 Q. B. D. 503; Phillips v. Homfray, 1890, 44 Ch. D. 699.] In trover against an administrator cum testamento annexo, the declaration laid the conversion by the testator in his lifetime. [372] Plea, that the testator was not guilty. Verdict for the plaintiff. Mr. Kerby had moved in arrest of judgment upon the ground of this being a personal tort, which dies with the person; upon the authority of Collins v. Fennerett** and had a rule to shew cause. Mr. Buller last term shewed cause.-The objection made to the plaintiff's title to recover in this case is founded upon the old maxim of law which says, actio personalis moritur cum persona. But that objection does not hold here; nor is the maxim applicable to all personal actions; if it were, neither debt nor assumpsit would lie against an executor or administrator. If it is not applicable to all personal actions, there must be some restriction ; and the true distinction is this : where the action is founded merely upon an injury done to the person, and no property is in question ; there, tha action dies with the person : as in assault and battery, and the like. But where property is concerned, as in this case, the action remains notwithstanding the death of the party. Trover is not like trespass, but lies in a variety of cases where a party gets the possession of goods lawfully. It is founded solely in property : and the value of the goods only can be recovered. Therefore, the damages are as certain as in any action *! I omitted inserting the case of Rex versus Proctor in its place, because it was compromised as above ; and the Court gave no opinion. *2 Trin. 22 & 23 Geo. 2, B. R. 1COWP. 373. HAMBLY V. TBOTT 1137 of assumpsit. As to the case of Collins v. Fennerell it is a single authority and was not argued ; therefore, most probably was determined simply on the old maxim. But Savile, 40, case 90, is directly the other way. Where the damages are merely vindictive and uncertain, an action will not lie against an executor ; but where the action is to recover property, there the damages are certain, and the rule does not hold. This is an action for sheep, goats, pigs, oats, and cyder converted by injustice to the use of the person deceased : therefore, this action doe not die with the person. Mr. Kerby contra for the defendant cited, Palm. 330, where Jones Justice said, " that when the act of the testator includes a tort, it does not extend to the executor; but being personal dies with him; as trover and conversion does not lie...
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