#### Robert Fellow v. Anthony Fulgham.

1 V From Wayne. J

Petition filed under the act of 1809, ch. 15, to recover damages of the owner of a mill, for overflowing the PlaintifF’s lands. Pending the petition the Defendant dies, and a scire facias issues to his heirs to make them parties. Scire facias dismissed; for

The act does not direct them to be made parties j and by the common law, the heir is in no case liable for the tort of his ancestor.

,The act of 1805, ch. 8, provides against the abatement of actions brought for an injury done to real property, where the Defendant dies : but the revival must be by the representatives.

Executors and Administrators act in autre droit, and maintain the rights of their testators and intestates : hut an heir, who enters on the death of his ancestor, becomes seised in his own demesne, and does not claim to hold the land in right of another.

The Plaintiff filed bis petition in the County Court of Wayne, under the act of 1809, ch. 15, to recover damages for the overflowing of Ms lands. TheDefendant appealed from the judgment of the County Court, and pending the suit in the Superior Court, he died.' — The Plaintiff sued out a sáre facias against his heirs, to make them parties j *255and a question arose whether the heirs or the representatives of the deceased should be made parties. The Court dismissed the scire fadas, and the Plaintiff appealed.

Tavxor, Chief-Justice,

delivered the opinion of the Court:

This is a proceeding by petition under the act of 1809, ch. 15, to recover damages against the owner of a mill for an injury done to the Plaintiff’s land. Upon the death of the Defendant, a sdre fadas was issued to his heirs to make them parties, and the question presented for decision is, whether the suit can be revived against the heirs. Upon principle, it is clear that the suit cannot be carried on against the heirs. For, by the common law, the heir is in no case liable for the tort of his ancestor. The act of 1805, ch. 8, would operate to prevent the abatement of an action brought for an injury done to real property, where the Defendant died : hut then it must be revived against the representatives. The act under which this proceeding is instituted, gives a remedy of a peculiar kind, unknown to the common law, and is exclusive of the remedy by action, in all cases where the damages assessed by the Jury are less than ten pounds. It may be just and convenient to make the heir pay the damages during the period he received benefit from the mill; but it cannot be done without a legislative enactment, which is not less necessary in this case than in the various others, by which particular actions have been withheld from abatement. But because provision has been made in some cases that executors and administrators may prosecute or defend certain actions, which survive the death of the party : or because the action of ejectment may be revived against the heirs or devisees of the Defendant, the Court is not at liberty to | pronounce that the petition in this case should be revived against the heirs. Executors and administrators act in autre droit, and maintain the rights of them testators and intestates : but an heir who enters on the death of his *256ancestor, becomes seised in Iiis own demesne, and does not claim to bold tlie land in light of another. And whenever a statute does not authorise heirs to prosecute or c|eferK] a petition, prosecuted by or against their ancestor, it is clear that they can have no right to do so. — The scire facias must bo dismissed.