Bishop v. Lokana
| Decision Date | 01 February 1885 |
| Parties | BERNICE P. BISHOP ET AL. v. LOKANA ET AL. |
| Court | Hawaii Supreme Court |
TRESPASS.
Syllabus by the Court
An action of trespass quare clausum fregit, held to abate upon death of plaintiff.
F. M Hatch, for plaintiffs.
E Preston, for defendants.
BEFORE JUDD, C.J.
DECISION
This is an action of trespass wherein five hundred dollars ($500) damages are claimed for breaking and entering the fishery appurtenant to the Ahupuaa of Moanalua, the property of the plaintiffs, and taking fish therefrom.
The action was commenced on the 3d of October, 1884. During that month Mrs. Bishop died, and her executors appeared on the 15th December and filed in Court a suggestion of her death and prayed that the suit might proceed to final judgment.
At the January term, 1885, the defendants move that the appearance of the executors be set aside on the ground that the cause of action declared upon does not survive to the executors.
The Act of 1876 (Compiled Laws pp. 385-6) provides the method to be pursued in proceeding with an action after the death of the plaintiff or defendant. But it seems to me from the language and intent of the Act that this procedure is only applicable to such actions as survive to the personal representatives of the deceased, that is, such actions as might originally be maintained by the executor or administrator.
The action in question appears to me to be trespass quare clausum fregit, and the taking of fish is alleged by way of aggravation. Actions for injury to real estate do not survive to the executor or administrator, for the real estate passes to the heir or devisee, and not to the personal representatives.
The maxim applicable is actio personalis moritur cum persona, and is peculiarly applicable to actions in form ex delicto. Actions in tort, founded on malfeasance or misfeasance to the person or property of another, are annexed to the person and die with him, except where the remedy is given by statute to the personal representatives. Broom's Legal Maxims, star page 706.
It required the enactment of a statute in England (3 and 4, Wm 4, C. 42) to enable executors or administrators of a person deceased to maintain trespass for injury to the real estate of such person committed in his life-time. This statute limits the right of action to an injury committed within six months before the death of such person, and requires the...
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Rohlfing v. Moses Akiona, Limited
...by S.L.1955, Act 205, the common law rule actio personalis moritur cum persona applied in this jurisdiction. See Bishop v. Lokana, 6 Haw. 556 (Decision of Judd, C. J.) (1885); City and County v. Sherretz, 42 Haw. 177 (1957). However, there was and had been since 1923 a statute of the Lord C......
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Baclaan v. Eng'g, CIVIL 03-00325 LEK-KSC
...representatives of the deceased, that is, such actions as might originally be maintained by the executor or administrator.Bishop v. Lokana, 6 Haw. 556, 557 (1885). The same result was reached in Alameda v. Spenser, 34 Haw. 667 (1938). Obviously, at common law, an action for defamation could......
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Alameda v. Spenser
...of causes of action which survive are of very little authority in this jurisdiction where we have no statute on the subject. In Bishop v. Lokana, 6 Haw. 556, it was held that the Act of 1876 (now R. L. 1935, § 4053 et seq.), providing a method to be pursued in proceeding with an action afte......
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City of Honolulu, Corp. v. Sherretz
...have no reference to pending actions where the cause of action would not survive. Such has been the construction of our own court. Bishop v. Lokana, 6 Haw. 556, held that an action of trespass quare clausum fregit abated upon the death of the plaintiff. In that case the executors suggested ......