Yarter v. Flagg
| Decision Date | 07 January 1887 |
| Citation | 143 Mass. 280,9 N.E. 649 |
| Parties | YARTER v. FLAGG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.A. Perry, for plaintiff.
The legislature intended that this form of action should be a substitute for the action which the loser might have brought within three months from the loss, and to place the plaintiff in as good position as the loser would have occupied. Had the loser brought an action of contract within three months from the time of the loss, the action would have survived. The action, if well founded, would be in the nature of a lien upon the building, if properly enforced by attachment. There is no statute or decision which says that death of defendant abates this action. The common-law actions of tort which then existed would not survive, but the common law did not and could not apply to causes of action which might be created centuries afterwards by special statutes in a foreign country. Rev.St.Mass. c. 50, § 12; Acts 1837, c. 179; Rev.St c. 50, §§ 12, 13. Of course, the action under above statute being an action of contract, would survive, both under the common law and under Massachusetts law. Thus matters continued until Gen.St. c. 85, substituted tort for debt under the supervision of the commissioners on the revision of the statutes. The legislature had passed no law to that effect. Why the commissioners made the change they do not explain. If they had intended that an action under the new statute should not survive, would they not have so expressed it? They did not intend to reverse the law as to survival of actions. Pub.St. c. 165, § 1; Rev.St. 1836, c. 14, § 66; Id. c. 93, § 7; Acts 1842, c. 89, § 1; Acts 1852, c 312. No one will claim, or pretend even, as a matter of law, that those acts would apply to an action of tort not then existing, or thought of even. The statute does not say that all actions of tort except those specified shall survive. Why should the court? It is not a sound claim that all actions of tort not specified in Pub.St. c. 165, § 1, do not survive. See Chase v. Fitz, 132 Mass. 365. The courts have been liberal in construing the question of survival of actions. Scott v. Brown, 24 Hun, 620; Cregin v. Brooklyn C.R. Co., 83 N.Y. 595; Baker v. Crandall, 78 Mo. 584; Rhodes v. Crutchfield, 7 Lea, 518; Eames v. Brattleboro, 54 Vt. 471; Prescott v. Knowles, 62 Me. 278.
J.Q.A. Brackett, for defendant.
This case falls within the general rule that actions of tort do not survive; the exceptions created by Pub.St.Mass c. 165, § 1, not including it. The statute is to be strictly construed so as not to extend the exceptions beyond the clear intent of the legislature. Cutting v. Tower, 14 Gray, 183; Cummings v. Bird, 115 Mass. 346; Leggate v. Moulton, Id. 552; Nettleton v. Dinehart, 5 Cush. 543; Walters v. Nettleton, Id. 544; Conly v. Conly, 121 Mass. 550; Read v. Hatch, 19 Pick. 47; Stillman v. Hollenbeck, 4 Allen, 391.
OPINION
Pub.St. c. 99, §§ 1, 2, in giving an action of tort to a common informer to recover of the owner of a place in which property is lost by gaming treble the value thereof, provides for the recovery of a penalty, and the action does not survive against the representatives of the defendant, either at common law or by Pub.St. c. 165, § 1.
The assumption on which the argument for the plaintiff is founded, that, prior to the General Statutes the action to recover a like penalty survived because the form of the action was debt, is unwarranted. The earlier statutes, passed when debt was the common action for penalties, (St.1793, c 43, § 4 Rev.St. c....
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