Newsom v. Jackson

• Decision Date: 30 June 1859
• Citation: 29 Ga. 61
• Parties: William Newsom, executor, plaintiff in error. vs. John Jackson, defendant in error.
• Court: Georgia Supreme Court

29 Ga. 61

William Newsom, executor, plaintiff in error. vs. John Jackson, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1859.

Case, and motion to make parties in Baker superior court. Decision by Judge Allen, May Term, 1859.

Jackson brought his action on the case against Caesar A. Savage for deceit. Pending the action and before trial, Savage died, and Newsom, his executor, was served with scire facias, to show cause why he should not be made a party defendant in the place of his testator, and the cause proceed.

Newsom appeared and moved to dismiss the action on the ground that the suit had abated by the death of the defendant, and the cause of action did not survive. The court overruled the motion, and Newsom excepted.

Lyon, Irvin & Butler, for plaintiff in error.

Morgan, contra.

By the Court.—Stephens, J., delivering the opinion.

This was an action by Jackson against Savage for deceit, in fraudulently inducing Jackson to give credit to another, he, Savage, knowing that other to be unworthy of such credit. Savage being dead, does the action survive in the same or in any other form against the executor? The common law rule is, actio personalis moritur cum personam, but still the question is—what is included under the head of actio personalis? The most satisfactory answer which I have been able to find, is given by Judge Tucker, in his Commentaries, $d book, page 223, as being the result of all the cases. He says, if the cause of action can be maintained in form ex contractu, it survives, but if it is necessary in form ex delicto, it dies with the death of either party. Can this cause of action be maintained in form ex contractu? To put it in that form, would be to claim an implied promise from Savage, that he would make his representations good; that is a guaranty. But this would be obnoxious to the statute of frauds, as being a promise to answer for the debt of another and not in writing. By the common law rule, then, this cause of action not being maintainable except in form ex delicto, dies with the death of either party. The only alteration made in this common law rule, so far as I am aware, is by 4 Edward III, chap. 7th. This statute does not materially change the rule, for by a very liberal construction it has been made to save all actions for injuries to personal property, whereby the property is rendered less beneficial to the executor. It may be said this was an injury to the goodswhich Jackson sold, whereby he lost them....