H. CHAPTER II THE TITLE AND POWERS OF EXECUTORS AND SECTION 1.-WHAT INTERESTS BELONG TO EXECUTORS THE /A HOVEY v. PAGE. (Supreme Court of Maine, 1867. 55 Me. 142.) DANFORTH, J. This action was commenced by the plaintiff's intestate in her lifetime, and is for an alleged breach of promise of marriage. That such an action does not survive at common law, without an allegation of special damage, is well settled. Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Smith v. Sherman, 4 Cush. (Mass.) 408. Nor does it come within the provisions of Rev. St. c. 87, § 8. In this case, no special damage is alleged, but there is an offer to prove, for which the same effect is claimed, "that, after such alleged promise, the deceased had a child born to her out of wedlock, now living, and that the defendant is the father of the child." It is not necessary, now to decide whether such testimony, with or without an amendment of the declaration, would be admissible; for we are of the opinion that, if the facts stated in the offer were proved, there would not be such special damage as to authorize the prosecution of the suit. In order to do so, it must be such as to affect the property and not such as is purely personal. The distinction between actions which do not survive, and those which do, is that the former are to recover damages to the person only and the latter damages to the property. If any others survive it is by virtue of statutory provisions. Hence, the allegation of special damage which would cause the action to survive, must be of damage to the property, and such as would be sufficient of itself to sustain a suit. That such was the understanding of the court in Stebbins, v. Palmer is evident from the last sentence in the opinion, by which it is left in doubt whether, in case the action survives, the plaintiff would recover any more than the damage to the property.2 In Smith v. Sherman it The statement of facts is omitted. 2 Stebbins v. Palmer, is reported post, at page 592. COST. WILLS-35 447 is held "that it must be some damage of such a character that it might be given in evidence, to aggravate the damage in one action, or be itself the substantive cause of action, as in trespass quare clausum and conveying away the plaintiff's goods." As a matter of principle, it is evident that the effect of proof offered for the purpose of aggravating the damage, or to sustain special damage, could not be greater than if offered in a separate action, for that which is merely incidental to the principal thing must fall when the principal falls, and that which would not of itself sustain an action would not cause one to survive which would otherwise abate. Now the testimony offered and relied upon in this case, if admissible, would increase the damages only on the ground of injury to the character and not to the estate; nor would it of itself sustain an action, for, if seduction is relied upon, the plaintiff's intestate, if living, would have no legal cause of complaint. Paul v. Frazier, 3 Mass. 71, 3 Am. Dec. 95. If the expense of supporting the child is relied upon, the only remedy is that provided by statute. 2 Kent's Com. 215. Plaintiff nonsuit.3 8 "The general rule of law is, 'Actio personalis moritur cum persona'; under which rule are included all actions for injuries merely personal. Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record; otherwise the court cannot intend it. If this action be maintainable, then every action founded on an implied promise to a testator, where the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor or administrator. All injuries affecting the life or health of the deceased; all such as arise out of the unskilfulness of medical practitioners; the imprisonment of the party brought on by the negligence of his attorney; all these would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention. We are not aware, however, of any attempt on the part of the executor or administrator to maintain an action in any such case. Where the damage done to the personal estate can be stated on the record, that involves a different question. Although marriage may be regarded as a temporal advantage to the party as far as respects personal comfort, still it cannot be considered in this case as an increase of the individual transmissible personal estate, but would operate rather as an extinction of it; though that circumstance might have been compensated by other advantages. Loss of marriage may, under circumstances, occasion a strict pecuniary loss to a woman, but it does not necessarily do so; and unless it be expressly stated on the record by allegation the court cannot intend it. On the ground, therefore, that the present allegation imports only a personal injury, to which the administrator is not by law, nor is he in fact shown to be, privy, we are of opinion that, in the absence of any authorities, this administrator cannot maintain this action." Lord Ellenborough, C. J., in Chamberlain v. Williamson, 2 M. & S. 408, 4 (1814). RAYMOND v. FITCH. 9 Z (Court of Exchequer, 1835. 2 C., M. & R. 588.) LORD ABINGER, C. B. The demurrer to the first breach gives rise to this question, whether an executor can sue for the breach of this covenant, not to fell, stub up, head, lop or top, timber trees excepted out of the demise, such breach having been committed in the lifetime of the testator; and no part of the timber, loppings, or toppings, appearing to have been removed by the defendant. This question was argued in the latter part of the last term, before my Brothers PARKE, BOLLAND, GURNEY, and myself, and stood over, that we might more attentively consider how far the modern decisions, referred to on the argument, had overruled or qualified the old authorities. Those authorities are uniform, that the present representative may sue, not only for all debts due to the deceased, by specialty or otherwise, but for all covenants, and indeed all contracts with the testator, broken in his lifetime; and the reason appears to be, that these are choses in action, and are parcel of the personal estate, in respect of which the executor or administrator represents the person of the testator, and is in law the testator's assignee. And this right does not depend on the equity of the statute 4 Edw. III, c. 7,5 but is a commonlaw right, as much as the right to sue on a bond or specialty for a sum certain due in the testator's lifetime. The maxim, that "Actio personalis moritur cum persona," is not applied in the old authorities to causes of actions on contracts, but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another, which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representative by the statute law. The rule that the executor may sue upon every covenant with his testator broken in his lifetime, has been directly qualified by the decisions in the two cases of Kingdon v. Nottle, 1 M. & Selw. 355, and 4 M. & Selw. 53, followed by that of King v. Jones, 5 Taunt. 518, 1 Marshall, 107, in which cases it was held, that, where there are covenants real, that is, which run with the land and de The statement of facts and a part of the opinion are omitted. • That statute, passed in 1330, was: "Item, Whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; (2) it is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner, as they, whose executors they be, should have had if they were in life." While the statute gave executors an action, "the equity of the statute" was held, in Smith v. Colgay, Cro. Eliz. 384 (1595), to enable an administrator to maintain trespass de bonis asportatis for the tak ing of the chattels of the intestate during the latter's life. For a consideration, historically, of the doctrine of the equity of a statute, see 58 Am. Law Reg. (O. S.) 76. scend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet if the substantial damage has taken place since his death, the real representative, and not the personal, is the proper plaintiff. These cases go no farther, and they do not apply to the present; for there is no doubt but that the covenant in question is purely collateral, and does not run with the land; for the trees being excepted from the demise, the covenant not to fell them is the same as if there had been a covenant not to cut down trees growing upon an adjoining estate of the lessor. It is a security by specialty given by the lessee to the lessor, not to commit such a trespass during the lease, which may continue beyond the lessor's life. For the breach of such a covenant after the death of the covenantee, the heir or devisee of the land on which the trees grow could not sue; the executor would be the proper party, as the covenant is collateral, and is intended not to be limited by the life of the covenantee; and if he could not sue, no one could. It is equally clear that the heir or devisee could not sue for a breach of the covenant in the time of the ancestor or devisor, and the executor therefore must sue, or all remedy is lost. These decisions, therefore, do not affect the present case. The old authorities, with respect to the right of the personal representative to sue on all contracts made with the deceased, have also been qualified by the modern decision of Chamberlain v. Williamson, 2 M. & Selw. 408, in which it was held, that the administrator of a woman could not sue for a breach of contract to marry the intestate, the declaration not stating any ground of injury to the personal estate; and in giving judgment Lord Ellenborough enumerates other instances of contracts, the breach of which imports a damage only to the person of the deceased, such as implied contracts by medical practitioners to use a proper portion of skill and attention, which cases are in substance actions for injuries to the person, and for which the personal representative could not sue; and the argument on the part of the defendant in this case was, that the same limitation of the old authorities must be applied to all contracts except such as directly relate to the personal estate, and the performance of which would necessarily be a benefit, and the breach a damage, to the personal estate of the testator, whether such contracts are under seal or not; and that upon such contracts the executor could not sue without alleging a special damage to the personal estate. The case certainly does not go that length; and we think that such an extension of the doctrine laid down in it is not warranted by law, and that it cannot be extended to a contract broken in the lifetime of the deceased, the benefit of which, if it were yet unbroken, would pass to the executor as part of the personal estate; at all events, not to such a contract under seal. The present case is one of that description-it is a case more favorable to the executors than those of Morley v. Polhill [2 Ventr. 56, 3 Salk. 109, pl. 10], Smith v. Simonds [Comberbach, 64], and Lucy v. Levington [2 Lev. 26, 1 Ventr. 176], in which the covenant did run with the land; and if the last case [where the executor recovered for a breach in his testator's life of a covenant for quiet enjoyment] is to be considered as having been decided, as was suggested in the argument before us, on the ground that the loss of rents and profits by an eviction of the testator was an injury to the personal estate (though such a ground is not intimated in either report), it is difficult to say that the loss of the shade and casual profits of trees is not equally so. We therefore think that our judgment must be for the plaintiffs. Judgment for the plaintiffs. 496 BRADSHAW v. LANCASHIRE & Y. RY. CO. 41 (Court of Common Pleas, 1875. L. R. 10 C. P. 189.) い At the trial, before Denman, J., at the last Manchester spring assizes, the facts were as follows: The female plaintiff was the executrix of the testator, and he, while traveling on the defendant's railway, had been injured by a railway accident. He ultimately died from the injuries received, and it was not disputed that he had incurred expenses for medical attendance amounting to £40, and that the loss occasioned to his estate in respect of his being unable to attend to business previous to his death was £160. It was contended, however, on the part of the defendants, that the maxim "Actio personalis moritur cum persona" applied, and that the action was not maintainable; and, secondly, that the damages for loss of business were too remote. The verdict was entered for the plaintiffs for £200, leave being reserved to the defendants to enter a verdict for themselves or to reduce the damages on the above grounds. A rule nisi had been obtained accordingly. GROVE, J. I am of opinion that this rule should be discharged. The action is brought by the executrix of a person whose death was caused by a railway accident, in respect of damages occasioned to the testator's estate. It is to be taken that the estate was damaged, not consequentially upon the testator's death, but by his inability to attend to his business in his lifetime, the direct and natural result of the injury he suffered. It is no doubt singular that up to the case of Potter v. Metropolitan District Ry. Co., 30 L. T. (N. S.) 765, no action of this kind appears to have ever been brought, a circumstance which has been sometimes relied on as an argument against sanctioning a new form of action. It may, however, be that • The statement of the pleadings and parts of the opinions relating to damages are omitted. 7 In Potter v. Metropolitan District Railway Co., 30 L. T. (N. S.) 765 (1874), the plaintiff as the executrix of her late husband brought an action to recover compensation for the loss sustained to his estate, because the defendant did not safely carry the plaintiff after it had received her as a passenger, and in |