Cummings v. Bird

• Decision Date: 27 June 1874
• Citation: Cummings v. Bird, 115 Mass. 346 (Mass. 1874)
• Parties: Samuel P. Cummings v. Francis W. Bird
• Court: Supreme Judicial Court of Massachusetts

115 Mass. 346

Samuel P. Cummings v. Francis W. Bird

Supreme Court of Massachusetts

June 27, 1874

Suffolk. Tort for libel. At the trial in this court before Colt, J the case was reserved for the consideration of the full court on the pleadings and evidence. The plaintiff afterwards died and his administratrix sought to come in and maintain the suit, and offered to show that the intestate lost two offices in consequence of the alleged libel.

Suit abated by death of plaintiff.

C Cowley, for the plaintiff.

W Graston & W. Colburn, for the defendant.

Devens, J. Colt & Endicott, JJ., absent.

OPINION

Devens, J.

The original plaintiff having deceased at the time of the argument of this cause, and the administratrix having now come in, it is first to be determined whether the suit, which is for a libel upon him, has abated by his death. The rule of the common law is that actions of tort for misfeasance or malfeasance do not survive, and if this action does so in this Commonwealth it is by virtue of Gen. Sts. c. 127, § 1. ^[*] The ground taken by the counsel for the administratrix is, that as actions for damage done to real or personal estate survive, and as it is alleged that the plaintiff lost a lucrative employment by reason of the charges made in the alleged libel, the action may be maintained as for damage done to his estate. This argument cannot avail. In Walters v. Nettleton, 5 Cush. 544, it was decided that an action for libel did not survive against the administrator of the defendant, and in Nettleton v. Dinehart, 5 Cush. 543, it was further held that an action for malicious prosecution did not survive in favor of the administrator of the plaintiff. In the latter case the same argument as that used by the plaintiff here would have been equally pertinent, as the plaintiff had been subjected, as he ...