Kennedy v. McAfee's Ex'x

• Decision Date: 05 June 1822
• Citation: 11 Ky. 169
• Parties: Kennedy and M'Coun v. M'Afee's ex'x.
• Court: Kentucky Court of Appeals

11 Ky. 169

Kennedy and M'Coun v. M'Afee's ex'x.

Court of Appeals of Kentucky.

June 5, 1822

An action on the case, brought to recover damages occasioned by the erection of a mill and the consequent overflowing of the land of the plaintiff, is an action founded on tort, and on common law principles, abates by the death of the plaintiff and can not by virtue of any statutory regulation, be revived in the name of the executor or administrator.

OPINION

THE COURT.

Statement of the case.

This was an action on the case, brought by George M'Afee, in his lifetime, to recover damages occasioned by the erection of a mill dam across Salt river, by Kennedy and M'Coun and the consequent overflowing of water on the land and spring of M'Afee. Whilst the suit was pending in the circuit court, M'Afee departed this life, and the suit was, by an order of court, renewed in the name of his executrix. The suit was finally tried in the circuit court and a verdict and judgment for one hundred and twenty-one dollars recovered by the executrix. To reverse that judgment Kennedy and M'Coun have prosecuted this writ of error.

The assignment of errors questions the propriety of reviving the cause in the name of the executrix.

1. That, upon common law principles, the action could not be revived in the name of the executrix, is perfectly obvious for the cause of action is founded on a tort, and wherever the declaration imputes a tort, done either to the person or property of another, and the plea must be not guilty, the rule at common law was, actio personalis moritur cum persona. This rule, however, received considerable alteration by the statute of 4 Ed. 3, ch. 7, re-enacted by the legislature of this country in 1797 (1 Litt. 624), which provides, that " actions of trespass may be maintained by and against executors or administrators, for any goods taken and carried away in the lifetime of the testator or intestate; and the damages received, shall be, in the one case, for the benefit of the estate, and in the other, out of the assets." But the statute of Edward was never supposed to extend to injuries done to the person or the freehold of the testator; and consequently, since the statute, it has been held, that an executor or administrator can maintain no actions of assault and battery, false imprisonment, slander, deceit, diverting a water course obstructing rights, cutting trees, & c.; but such like causes of action,...