#### Molton v. Miller, administrator of Mumford.

y I From Jones. J

An action of trespass for mesne profits, may be brought against an administrator to recover profits received by the intestate in his life time.

The intestate died during the pendency of the ejectment, and his heirs were made parties defendants: Held, that the record of the rer covery against the heirs, was evidence of plaintiff’s right to recover against the administrator.

This was an action of trespass, brought to recover of the defendant, the profits of a tract of land, received by Mary Mumford, the defendant’s intestate, in her lifetime, and was tried below before Badger, Judge.

On the trial, the plaintiff produced in evidence the record of a former action of ejectment, brought in this court *491in the name of John Doe on the demise of the present plaintiff, against Richard Roe as the casual ejector. By this record it appeared that the declaration was served' on Mary Mumford, with the usual notice to her in the name of the casual ejector. At September term, 1819, on the return of the declaration, Mary Mumford appeared, and being made defendant under the couimon rule, pleaded “ not guilty:” in December following, she died. At March term, 1820, her death was suggested, and scire facias ordered to make her heirs parties: at September term following, James Mumford and Penelope Mumford, her children, were made defendants by the following entry on the record: “ James Mumford and Penelope Mumford, by their guardian James Harrison, acknowledge service of scire facias, and become defendants to this cause.” At the succeeding term a trial was had, when there was a verdict and judgment for the plaintiff and a writ of possession issuing thereon was returned “executed.”

The proceedings in this ejectment being the only evidence offered, to show the plaintiff’s right to recover’ against the defendant, it was objected by the defendant’s counsel, that the record of these proceedings was no evidence of the plaintiff’s right against him, as the matters' in controversy in that suit were not decided between the plaintiff and the defendant’s intestate, b’ut after her death, between her heirs and the plaintiff; so that the proceeding in that suit was res inter alios acta as to the defendant, the administrator, lie not being a party thereto, nor any one whom he represented, or to whom he was privy.

Of this opinion was the presiding Judge; but lie permitted the trial to proceed, reserving this question, and a verdict having been found: for the plaintiff it was agreed that it should be set aside, and a non-suit entered, if, on the matter above stated, the law should be against thfe plaintiff. The presiding judge retaining the opinion expressed on the trial, accordingly directed a non-suit to he entered: from which the plaintiff prayed an appeal to this Court.

*492 Gaston, for the appellant.

By the act of 1799, ch. 532. the old suit is made alive, and that proceeded on as though the original defendant were living.

Plaintiff, therefore, must prove the same title, the same pos,session, as if he had not died.

The plaintiff has a verdict *< that the original defendant was guilty of the trespass and ejectment, in manner and form as complained of against him.”

Plaintiff has judgment, therefore, to recover his term and damages.

These facts have been solemnly, judicially, finally ascertained in the mode pointed out by law for the purpose, and those have been brought in to contest them whom the law selected to represent the deceased.

The action of mesne profits is purely consequential.

The legislature must have been aware of this, and if they intended that the ordinary consequence should not follow, would have said so.

They might have regarded this action, fictitious in its form, the creature of the courts, as in some measure an action in ran.

Had they been asked, could we doubt what answer they would have returned to this inquiry?

Courts are to expound acts so as to effectuate legislative will, and not to hamper it by technical scruples.

Could not the administrator have taken benefit of the judgment, had it been otherwise? could he not sue on the prosecution bond? could he not sue for malicious action?

Badger, for the appellee.

The nonsuit below is right: 1. Because this action will not lie against executors. At common law, no action could lie either by or against an executor founded on a tort. Hambly v. Trott, (Cowp. 375.) The statute de bonis asportaiis (4 Ed. 3. ch. 7.) gives the action to executors; but though the statute has been extended by an equitable construction, it has been constantly holden that no action is by it given against an *493executor, The liability ol' the executor remains as at common law. Berwick v. Andrews, (6 Mod. 125. 2 Ld. Ray. 971. S. C.)

The action for mesne profits is not an exception to this rule. It is regarded strictly as an action of tort, and cannot be maintained against an executor. (Adams on Eject. SSI.)

This question is not affected by any decisions which have been made in this state. It is ruled in several cases reported in 1 1lay. that trover will lie against an executor. MHCinnin’s executor v. Oliplumfs executors, (1 Hay. 4.) Decrow v. Moore’s executors, (p. 21.) Niven Clark v. Henan, (p. 308.) and Avery v. Moore’s executors, (p. 362.) In the first of these cases only, is the action of trespass mentioned as maintainable. The case is shortly and loosely reported; was decided by Wiiiiams, Judge, alone; and it does not appear what was the form of action. But in the last of the cases, Haywood, Judge, in delivering a solemn judgment, while he holds trover can be supported against an executor, expressly rules that trespass cannot.

Nor is this question affected by the various acts of assembly for the revival of actions. They all are acts “ to prevent the abatement of suits;” all presuppose a suit commenced against the testator in his life, and provide for its continuance after his death. To hold these statutes to give a right to bring such an action originally against an executor, would not be to expound, but to make a law.

2. The record of the recovery in the ejectment is not evidence against the executor, because he was not a party to that recovery, nor is he privy to any one who was party to it. The general rule cannot be denied, and it is incumbent on the counsel on the other side to show an exception which will include this case.

The act authorizing the revival of actions of ejectment, makes no such exception. The ejectment is to be revived against the heirs; they are to contest the right *494to recover, and against them the recovery is effected; But there is no privity between said heirs and the executor. They are several representatives of the ancestor, as distinct funds and for separate purposes; and the act makes no provision that the proceedings shall be evidence in any other manner than by the general rules of the common law they would be. The counsel on the other side refers to several known exceptions to the general rule, as of proceedings of courts of admiralty in ran, which are evidence against all the world. These exceptions are not denied, and it is sufficient for me to say. they have nothing to do with this case, and are cited to no purpose.

But the counsel also states, as an exception to the general rule, that a judgment is evidence against a security for the prosecution in an action on his bond for the costs, though he is neither party nor privy. This observation, I confess, surprises me; for it imports that the gentleman has mistaken the force of the objection I urge, and the meaning of the rule itself. Whenever the party’s right depends upon the existence of a judgment, an exemplification of the record is of course evidence that there is such a judgment; for it is evidence of its own existence necessarily against all the world. But the general rule of evidence supposes and applies to a ease where the party’s rights depend upon the truth of the matters admitted or determined by the judgment; or rather, where the fact of a judgment does not decide the existing controversy, but its decision depends on the inquiry, was the judgment right? Here a judgment is evidence only against a party to it, who could contest the matters in issue, or those who represent such party. And exceptions to this rule are all cases where the record of recovery is evidence against others, who are neither parties nor privy, not only of th!* fact of a judgment, but also that the judgment was righily rendered.

The Court, therefore, cannot receive this record as *495evidence for the purpose for which it is offered, without overturning one of the best established and most valuable rules of evidence known to our law, and leaving the personal estate to be swept away by judgments obtained against those who represent the real property alone, either by fraud or negligence, which the personal representative can neither prevent nor remedy.

Taylor, Chief Justice,

delivered the Court’s opinion. Two questions have been argued in this case, neither of which has been directly brought under discussion before. The first is, whether the act allowing the revival only of tortious actions shall be construed to allow the original institution of them against the representatives. The position has hitherto been taken for granted, that whatever suit could be revived, might also be instituted; and after an attentive consideration of the several acts, and the arguments offered by the counsel, this is, in my opinion, the proper construction of the law.

According to the rules of the common law, as it existed in this state, unaltered by statute, prior to the year 1786, personal actions pending in court, abated by the death of either party; and equally so, whether they were founded upon tort or contract. In the former, the right of action, under the exceptions created by the statute of Edw. 3. died wüh the person, and could not be revived, either by or against the executox’s, or other representatives; but in actions founded on contract, the action only, and not the right of action, abated, and a new suit might consequently be brought by or against the representative.

By the act of 1786, ch. S53. the representatives were allowed to cari’y on every suit, or action in courts, after the death of either plaintiff or defendant; and, from the comprehensive terms of this law, it might be inferred that all actions, whether founded on tort or contract, were meant to be revivable; since, if it had been intended to restrain the privilege to such actions only as might have *496been brought by or against representatives, at common law, a limitation to that effect would probably have been . introduced, especially as the statute of 8 <$f 9 Will. 3. Prevents the abatement from the death of the party, after interlocutory judgment, is confined expressly to such actions as might originally be maintained by or against executors. A statute which must have been familiar to the members of the legislature.

But a different construction was given to the act of 1786., by the Courts, wherein it was held, that it extended only to cases, where, before the act, the executor might sue or be sued, after the abatement of the former action.

This construction was acquiesed in, until the year 1799, when various actions ex delicto, enumerated in that act, (ch. 532.) are declared not to abate, and are allowed to be revived.

It was by force of the maxim, “a personal action dies with the person,” that the death of either party abated the suit at common law; and it resulted from the operation of the same maxim, that the right of action was lost in tortious actions before any suit brought. The term, “action,” is then manifestly susceptibleof two significations, viz. an action pending in court, and a right of action in tortious cases where no suit is brought; and either. sense of the term must be adopted according to the subject matter to which it is applied. It seems to have been received in this light, by the legislature, in the two acts on this subject. «No action of detinue, &c. shall in any cause or court, abate or be discontinued.” (ch. 532. sec. 5.) The word action, when referred to court, is used in its literal sense; but what construction can be given to action in a cause, unless it be right of action? The meaning of the act then is, that no action of detinue, &c. in any court, or right of action in any cause, shall abate. I have thus resorted to the peculiar phraseology of the act, to show the meaning of the legislature, though it is probable that general principles would have led to *497the same conclusions; for when one doth release to another all actions, not only actions pending in-court, but also causes of action are released. Altham’s case, (8 Co.)

It might be thought, that the argument drawn from the words of the act, loses its force by the consideration that the terms “cause or court.” are employed in the act of 1786, ch. 233. in the second clause, which aims to provide against the abatement of appeals by death; in which act the word “ cause,” furnishes a remedy against the death of either party, in the interval between the judgment in the County Court and docketting the appeal in the Superior Court. But this is obviated by the fact, that the act of 1786, uses the term to provide for causes not actually depending in any court; and as the peculiar case therein specified cannot need any farther provision, the same word was probably used in the act of 1799, to guard against the abatement of all causes, or causes of action not yet brought into court, and which are enumerated in the 5th section of the last mentioned act.

But in addition to these considerations, it may be re-, marked that the legislature probably employed the words “the same shall, and may be revived,” to signify instituting an original suit, because they are used in the same sense by a writer distinguished, among other qualifications, for the critical precision of his style. In discussing the subject of the abatement of suits by death, the commentator observes, that actions ex delicto, never shall be revived, either by or against the executors, or other representatives. But in actions arising ex contractu, where the right descends to the representatives óf the plaintiff, though the suits shall abate hy the death of the parties, yet they may be revived against, or by the executors. (3 Bl. 312.) Now we know that according to the law this writer was expounding, the death of either party before a verdict, put the cause out of court; and that the practice of continuing it by scire facias, was, and yet is, altogether unknown. By reviving a suit, therefore, *498he meant bringing an action by, or against the executor, or other representative. Every reason of policy, jus--tice and convenience, which dictates the propriety of con-timing a pending suit, seems to my mind equally strong in favor of instituting an original suit. And so generally lias this construction heen assumed as the true one, that many actions have been brought, and recoveries had, since 1799; in which, whatever other important questions may have been agitated, a doubt on this, as far as I am informed, has never been expressed. In one case an action was brought, and a recovery had, against executors for a deceit committed by their testator in the sale of a chattel; and it was referred to the Supreme Court to decide what judgment should be entered. This question was then open on the record, had the court considered only whether the action was one of those contemplated by the act of 1799; not doubting that a suit which might be revived, could also be instituted. (1 Car. L. Rep. 529.)

The other question relative to the admissibility of the judgment against the heirs, as evidence against the administrator, is of more difficult solution. But after examining it in the various aspects in which it has been presented by the argument, endeavouring to ascertain the intention of the legislature, and consulting, in the absence of all precedent, the best information to be derived from general reasoning, the conclusion arrived at is, that the evidence should have been received.

The words of the act of 1799 are, that “the suit shall stand revived, and shall be proceeded on in the same manner as if the defendant or defendants were living.” If the defendant was living, and a recovery had as ainst him, a right to the mesne profits would follow as a necessary consequence. And in an action brought to recover them, the defendant would be concluded by the judgment in ejectment, and could not controvert the plaintiff’s title. To allow the title to be controverted by the administrator, who is sued only because he is the depository of the *499fund, out of which the damages are recoverable, would clearly contravene the spirit of the act, by depriving the plaintiff of part of the benefit which the right of revival aimed to secure to him.

The heirs are made by the act the proper parties to defend the suit, because they should he heard on a question touching their inheritance; but as they cannot be made liable directly, for the tortious act of the ancestor, this action will not lie against them; yet as the right to these profits, is incidental to the recovery of the land, the administrator must be bound by that recovery, otherwise the suit is not proceeded on in the same manner as if the defendant were living.

The question as to the title of the land, was litigated by the only persons interested in its decision; and who, it may be presumed, would, on that account, make a bonafide and real defence. In that question the administrator had no interest.

Although on the death of a person his real and personal estate pass into different channels, yet the whole is made, by our law, a common fund for the payment of debts, the personal being primarily consigned to that end. But when the debts are paid, the residue belongs to the heir and next of kin, and as the administrator holds in trust ultimately for them, the law thus raises a privity between the heirs and next of kin and the administrator. The common law rule of evidence, which makes a judgment against one person inadmissible in an action against another, proceeds on the principle, that the latter had no opportunity of calling witnesses, or cross examining those on the other side, nor of appealing against the judgments But in this case, the heirs, as defendants in the ejectment, had this opportunity, and they are the persons who will be most materially affected, by the diminution of the fund in the hands of the administrator. When the latter is called upon to pay these damages, he sees that the heirs, the persons to whom he is finally accountable, were call* *500ed in to contest the principal question, as to the title; and there can consequently remain no solid ground of defence on which he can resist the accessorial claim of mesne pro-rePea^e<* conferences on this question, the general result of the opinion of the Court is, that the nonsuit ought to be set aside, and judgment entered for the plaintiff.

Judgment reversed.