declaration. The property in the deeds accompanies the title to the land, and passes with the land to the devisee; and their loss is in the nature of damage done to the land. By analogy to the cases of covenants which run with the land-such as covenants to repair-which pass with the reversion to the heir or devisee, this action is maintainable. The breach of covenant in those cases is a continuing breach where the cause of action is contin uing. In King v. Jones (a) an action was brought by the plaintiff, as the heir of his father, against the defendant, as executor of Richard Griffith, upon a covenant of the testator to do all lawful and reasonable acts for further assurance, upon request; and it was held that the covenant was one running with the land, and that the heir might recover. In Kingdon v. Nottle (b) it was held that an action by the plaintiff, as executrix of Richard Kingdon, against the defendant, for a breach of covenant to make a good title, could not be maintained without shewing some special damage to the testator in his lifetime, or that the plaintiff claimed some interest in the property. Lord Ellenborough, in the argument of the case, says, p. 362, "It has been a sort of maxim in the law that an executor so far represents his testator as to be entitled to maintain an action in respect of all personal contracts made with the testator and broken in his lifetime; but, from Co. Lit. and the other authorities which have been cited, it should scem that, in contracts relating to the freehold, the executor does not represent his testator quite to that extent. And if the present action could be maintained this inconvenience would certainly result from it, that (a) 5 Taunt. 418; affirmed in error, 4 Mau. & S. 188. 1862. GOODMAN V. BOYCOTT. 1862. GOODMAN V. BOYCOTT. the executor, who could recover only nominal damages, would thereby preclude the heir, who is the party actually damnified, from recovering at all, for I am not aware of any case in which an action has been holden to be maintainable by the heir after a former recovery by the executor." In the present case the person damnified is the devisee; he has the land, and if he wishes to sell it he may be most seriously inconvenienced by the loss of the title deeds: it would appear, therefore, that he is the person who ought to sue for the loss, and not the executor. In Williams on Executors, p. 715, 5th ed., the author, in treating of actions upon covenants real, lays it down, "if such a covenant had been broken in the lifetime of the testator, or intestate, it should seem, according to the old authorities that the rule was that the executor or administrator might sue upon it," and he cites a passage from Com. Dig. in support of such rule; but in p. 716 he adds, "this rule, however, has been directly qualified by the decision of Kingdon v. Nottle, followed by that of King v. Jones, in which cases it was held that where there are covenants real, that is, which run with the land, and descend 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.” Then the loss of the deeds, which, for aught that appears to the contrary, is through the defendant's own default, is no answer to an action of detinue. Williams J., in his judgment in Reeve v. Palmer (a), says: "All the authorities, from the most ancient time, shew that it is no answer to an action of detinue, where (a) 5 C. B. N. S. 84-91. a demand is made for the redelivery of the chattel, to say that the defendant is unable to comply with the deman:l by reason of his own breach of duty." Hutton, contrà.-The plaintiff, in order to maintain detinue, must shew either a privity by bailment between himself and the defendant, or that he had a right to the possession of the deeds when he brought the action. Here there could be no contract of bailment between the plaintiff and the defendant, and, the loss having occurred in the lifetime of the testator, occurred before the plaintiff had any property in the deeds. Reeve v. Palmer (a) only decides that the plea here would be no answer to the action if it had been brought by the plaintiff's testator. It is clear that the testator in his lifetime could have maintained an action against the defendant; and if he recovered judgment, the judgment would have been that he recover the deed or damages for its detention; and if the testator had sued in his lifetime, and then died, the damages would have gone to the executor. In Br. Ab. tit. Sci. Fa. pl. 190., it is laid down: Si home recover fait concernant enheritance per briefe de detinue, et damages de v. liv. si le fait soit de estre redelyver, et si le fait ne soit destre redelyver tunc, xx. liv. damages et devy, et per opinionem Curie lexecutors navera execution des damages devant que l'heire ad scire facias pur le fait, et distringas ad deliberandum factum, et si le viscount retorne quod charta perdita vel combusta est, donques l'executors avera scire facias del damages et non ante, quod nota, et in plea real le heire avera execution del terre, recover per son auncestor, et les executors averont scire facias des damages et costes, quod nota." Suppose the (a) 5 C. B. N. S. 84-91. 1862. GOODMAN V. BOYCOTT. 1862. GOODMAN BOYCOTT. defendant had, in the testator's lifetime, wrongfully cut down a tree, the heir could not have brought an action for the wrong; and as, before the passing of the 3 & 4 W. 4. c. 42. s. 2., the executor could have brought no action for damage done to real estate, it follows that no one could have brought an action. It may be that, notwithstanding that statute, there is a class of cases where a wrong is committed in the testator's lifetime, for which no one can sue. The plea shews that the defendant never had possession of the deeds after the plaintiff became entitled to them; the plaintiff, therefore, cannot maintain this action; if any action lies, the executor is the proper person to sue; Raymond v. Fitch (a), Ricketts v. Weaver (b), 1 Williams on Executors, 719-20-21. 5th ed. H. Cole was heard in reply. Cur. adv. vult. The following judgments were now read by Wightman J. WIGHTMAN J. This was a demurrer to a plea in detinue, and was argued before my brother Blackburn and myself on the 27th of November last; and as we differ in opinion, it is not without great doubt, and after much consideration, that I have arrived at the conclusion that the plaintiff is entitled to judgment. The declaration alleged that the defendant detained from the plaintiff his title deeds of certain messuages and land, whereby the plaintiff was prevented selling or mortgaging the same, as he would have otherwise done. The defendant pleaded that the deeds were entrusted to and deposited with him by one Goodman, deceased, (a) 2 C. M. & R. 588; 5 Tyr. 985. (b) 12 M. § W. 718. and that the plaintiff claimed them as devisee under his will, and had no other interest in them, and that the detention of them was a loss of them by the defendant before the death of the said Goodman deceased, and that the defendant never had the possession of them since the death of Goodman. It is not alleged in the plea that the deeds have been destroyed, and it may be therefore assumed that they are still existing; and as the property in them is by the devise vested in the plaintiff, he may maintain detinue, though he never had the actual possession, against any one who detains them; as in the case of an heir at law suing in detinue for an heirloom: Bro. Ab. Detinue, pl. 30. 45. The loss of them would be no answer to an action by the original bailor unless it appeared by the plea that it was without any default of the defendant. Is then the loss of them as pleaded an answer to an action of detinue by the present plaintiff, who became the owner and entitled to the possession after the alleged loss by the defendant? The deeds must be taken to be still existing, and ought to be in the possession of the defendant ready to be delivered to the plaintiff; and he can hardly be allowed to set up his own default as an excuse for not having the possession of the plaintiff's property. Consistently with the defendant's plea, the deeds may have been found immediately after the death of the bailor; and though they may not have actually come to the possession of the defendant since, he might have known where they were, and might have the possession of them if he pleased. The case would have been different had the plea stated that the deeds had been burnt or destroyed before the death of the bailor; for if that had been the case, the plaintiff would never have 1862. GOODMAN V. BOYCOTT. |