Butner v. Keelhn

• Decision Date: 31 December 1858
• Citation: 51 N.C. 60,6 Jones 60
• Court: North Carolina Supreme Court
• Parties: ADAM BUTNER v. THEODORE F. KEELHN, Executor.

6 Jones (NC) 60

51 N.C. 60

ADAM BUTNER

v.THEODORE F. KEELHN, Executor.

Supreme Court of North Carolina.

December Term, 1858.

Wherever an action could have been revived against an executor, it may be brought against him.

ACTION ON THE CASE, tried before SAUNDERS, J., at Spring Term, 1858, of Forsyth Superior Court.

This was an action on the case for injuries done to the plaintiff's house, in which the testator was a lodger, by his conducting certain experiments with gun-powder and other inflamable substances, so carelessly and negligently, that an explosion took place, whereby the house was much torn and shattered. The testator himself was much injured also, and died in a few hours; and the action was brought against his executor. On the trial, the counsel for the defendant, insisted that the action did not survive against him.

There was a verdict for the plaintiff, subject to the opinion of the Court on that point, and afterwards the presiding judge was of opinion with the defendant, and set the verdict aside, and entered a nonsuit, and therefrom the plaintiff appealed.

Morehead and McLean, for the plaintiff .

Fowle, for the defendant .

RUFFIN, J.

It was admitted by the counsel, for the defendant, that if an action had been brought against the testator, in this case, it might have been revived and proscuted against the executor. But it was contended that it could not be brought originally against the executor. The distinction is taken on the terms used in the acts of 1799 and 1805, and those prior, which are confined to the ““revival” of actions for tort and preventing them from “abating,” and do not give “actions” against executors or administrators. There is that peculiarity in the phraseology of all the older statutes on this subject. But from the passage of those acts of 1799, and 1805, actions for torts by a testator, which did damage to property, have been brought against executors, as well as those brought against the testator revived, upon his death, against the executor. The acts are for the amendment of the law, and received, therefore, a liberal construction; and, as there is the same reason for giving the action, as for reviving it against the executor, it was, in practice, extended to the former, upon the equity of the acts. Many such actions were brought against executors and their propriety never questioned. In the course of time, however, the objection was raised in a few cases. But they all received decisions...