When executors may sue. CHAPTER XVI. 1. Actions by and against Executors. 3. Actions by Principal against Agent. I PROPOSE to conclude the portion of this work which treats of the measure of damages, by examining some cases in which the parties stand in a peculiar relation to each other, which affects their right to sue, and the amount they may recover. Such a relationship exists in the case of actions by trustees in bankruptcy, and by and against executors. In all these, the damages which can be obtained may be modified, more ui ress, by the fact that the party to the suit is not the person originally entitled to sue or be sued, but one placed in that position by law. So far as they are not modified in this manner, they come under the ordinary rules laid down previously. Damages in actions by a principal against his agent are in general exactly the same as they would be where the parties were unconnected with each other. The case, however, admits of some remarks peculiar to itself, for which this chapter seems to present the most proper place. I. It would be impossible, without wandering from the strict object of the present treatise, to state the cases in which actions will lie by and against executors. The subject has been so exhausted and discussed in well-known works upon the subject, that it would be waste of time to enter upon it here at any length (a). The broad principle upon which actions by executors rests, is, that they must be brought in respect of some wrong which affects the personal estate of the deceased. Hence an (a) See Wms. Exors. 738, 1590, 6th ed.; 1 Wms. Saund. 216, a. ; [1 Wms. Notes to Saund. 239.] executor may sue an attorney for negligence in investigating the title of an estate, about to be conveyed to the testator, by means of which he took a bad title, and was unable to sell the property. And the Court remarked, that if a man contracted for a safe passage in a coach, and sustained an injury by a fall, by which his means of improving his personal property were destroyed, and that property in consequence injured, the executor might sue in assumpsit for the consequences of the breach of contract (b). And so the executor may sue for breach of a contract to complete the sale of land, whereby the deceased lost the benefit of the purchase, and was put to expense in endeavouring to procure the title, and was deprived of the use of his money deposited (c). Nor is it necessary to prove actual and specific damage, provided the breach of contract might possibly have caused such damage. Therefore, the executor may sue for breach of covenant not to fell or lop timber-trees, committed during the life of the testator, though none of the timber was removed by the defendant (d). And so upon a covenant to repair, broken before the death of the covenantee (e). In such a case, though the covenant relates in terms to the realty, a breach of it is a direct injury to the personal estate; and this is the sort of injury which is primarily contemplated by it. But it is different where the primary object of the covenant is to preserve the real estate in specie. There the heir, and not the executor, is the person to sue even for a breach in the lifetime of the testator, unless some consequential damage to the personalty has ensued. So it was held, where the actions were for breach of covenant for title and right to convey, and for further assurance (f). Lord Ellenborough, C. J., said (g), "In this case there is no other damage than such as arises from a breach of the defendant's covenant that he had a good title, and there is a difficulty in admitting that the executor can recover at all without also allowing him to recover to the (b) Knight v. Quarles, 2 B. & B. 102. [And see per Willes, J., in Alton v. Midland Ry. Co., 19 C. B. N. S. at p. 242; 34 L. J. C. P. at p. 298.] (c) Orme v. Broughton, 10 Bingh. 533. (d) Raymond v. Fitch, 2 C. M. & R. 588. (e) Ricketts v. Weaver, 12 M. & W. 718. (f) Kingdon v. Nottle, 1 M. & S. 355; King v. Jones, 5 Taunt. 418; 4 M. & S. 188, affirmed on error. (g) 1 M. & S. 363. When executor cannct sue. full amount of the damages for such defect of title; and in that case a recovery by him oculi bar the heir, for I appre hend the heir orald net afterwards maintain an action for the sune reach. Had the breach been assigmed specially with s view to compensation for a damage sustained in the lifetime of the testator, and so as to have left a subject of suit entin to the heir, this action might have gone clear of the difficulty.” And on this ground the case was distinguished from that of Lury v. Levington A, because there an eviction had tak place in the lifetime of the testator; and, therefore, the damages in respect of such eviction, for which the action was brought, were properly the subject of suit and recovery by the executor, and nothing descended to the heir. In no case can an action be maintained, where it appears upon the face of the record that no damage to the personal estate could have arisen. Hence an executor cannot sue for breach of promise of marriage to the testator, unless special damage is shown. Executors 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. If such an action were maintainable, then every action founded on an implied promise to the testator, where the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor. 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 person employed to exhibit a proper portion of skill and attention. We are not aware, however, of any attempt on the part of the exeentor 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. Loss of marriage may, under circumstances, occasion a strictly pecuniary loss to a woman, but it does not necessarily do so; and unless it be expressly stated on the record, the Court will not intend it (i). (h) 2 Lev. 26. (i) Per Lord Ellenborough, C. J., Chamberlain v. Williamson, 2 M. & S. 408, 415. Since then no action can be brought except in respect of Principle of injury to the personal estate, it follows that where an action damages. is brought, damages can only be recovered on account of such injury. Accordingly in an action for distraining on the testator's goods, when no rent was due, and forcing him to pay 97. 13s. to have the distress withdrawn, it was held that damages must be limited to the amount so paid (k). given by Actions on a contract made with the deceased, or for a debt Additional due to him, were always maintainable by the executor. But rights of action it was a principle of common law, that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom the wrong was done (1). Three remarkable changes in this rule have been made. Stat. 4 Edw. III. c. 7, enacts, that where any trespass has 4 Ed. III. c. 7 been done to the testators, as of the goods and chattels of the said testators carried away in their life, 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 living. By an equitable construction of this statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of his testator in his lifetime, whereby it is become less beneficial to the executor, as the testator himself might have had, whatever the form of the action may be (m). By stat. 3 & 4 W. IV. c. 42, s. 2, the executors or admi- 3 & 4 W. IV. c. nistrators may sue for any injury committed in the lifetime 42. of the deceased to his real estate, so as such injury shall have been committed within six calendar months before the death, and provided the action is brought within one year after it. Even independently of this statute, however, where the defendant has severed part of the freehold, as trees, grass, or corn, and then carried it away, although the executor could not sue for the act of severance, he might sue for the taking of the severed chattel, by virtue of the stat. of Edw. III. (n). (k) Lockier v. Paterson, 1 C. & K. 271. (1) Wms. Exors. 743, 6th ed. (m) 1 Wms. Saund. 217, b. ; [1 Wms. Notes to Saund. 244]. The remedy given by this statute has been held to include administrators, and by 25 Ed. III. c. 5, was extended to executors of an executor, ibid. (n) Wms. Exors. 746, 6th ed.; Williams v. Breedon, 1 B. & P. 330. 9 & 10 Vict. c. 93. This mode would in many cases evade the limitation imposed by the later Act. Stat. 9 & 10 Vict. c. 93, gives the executor or adminis trator of any person whose death has been caused by the wrongful act, neglect, or default of any other person, an action to recover damages in respect thereof, when the act is such as would (if death had not ensued) have entitled the party injured to sue. The action is to be for the benefit of the wife, husband, parent, and child of the deceased (o). And the jury may give such damage as they may think proportioned to the injury resulting from such death to the parties for whose benefit it is brought, and are to divide it among them by their verdict. In assessing damages under this Act, the jury are confined to the pecuniary loss sustained by the family, and cannot take into consideration the mental suffering of the survivors. This rule was laid down after much consideration in a comparatively recent case. The deceased who was 34, had an income, as a merchant, of 8507. per annum, which, according to the probable duration of his life, calculated by the government annuity tables, amounted to 13,1887., of which the widow would have the joint enjoyment during his life. On the other hand, by his death she became at once entitled to 70007., leaving a balance of 6,138. The judge directed the jury to consider as to the pecuniary loss, how much of her husband's income a wife living with him, and maintained according to her station in life, might be supposed to enjoy. He further told them, that if they considered the plaintiff entitled to any compensation for the bereavement she had sustained, beyond the pecuniary loss, they might allow for it. They gave a verdict for 40007. A new trial was granted, on the ground of misdirection in allowing the jury to take the mental suffering of the plaintiff into their estimate, and because the damages were excessive supposing this element to be excluded (p). In a former case, the deceased was a labourer aged 33, and earning 17. a week. Parke, B., directed (0) See the interpretation clause [and Dickinson v. N. E. Ry. Co. 2 H. & C. 735. By 27 & 28 Vict. c. 95, s. 1, if there is no executor or administrator, or no action is brought within six months, the persons beneficially interested in the result of the action may sue.] (p) Blake v. Midland Ry. Co., 18 Q. B. 93; 21 L. J. Q. B. 233. |