Martin v. Bradley — 1 Cai. 124

Majority

p. 177

*Martin against Bradley, B. and N. Beach, Administrators of E. Beach, late Sheriff of Onondaga.

Headnote

Debt will not lie against the administrators of a sheriff, for an escape in the lifetime of. their intestate.

Debt against the administrators of the sheriff of Onondaga for an escape in the lifetime of their'intestate.

'General demurrer to the declaration.

Henry, in support of the demurrer.

The present question will give but little trouble to the court, for as it is debt for an escape against the administrators of a sheriff, it will be brought to a single point, whether this suit does not fall within the rule of “ actio personalis moritur cum persona.” It is founded on a tort, arising ex delicto of the intestate. 3 Black. Com. 302, is express that it is not maintainable, because the right against the intestate is derived ex delicio, and therefore dies with the person. In the case of Ilamhly v. Trott, Cowp. 375, Lord Mansfield, in settling the meaning and extent of the rule now insisted on, specifics the action of escape against a sheriff, as one which, from its cause, dies with the person. It is an injury ex maleficio, from which the intestate derived no advantage to himself, and this is the principle on which his personal representative is not answerable. Ibid. 376. The same doctrine is to be found in Fitzh. N. B. 121, A. n. a. In Berwick v. Andrews, 6 Mod. 126,^[1] case 171. In Dyer, 271, a.^[2] the same principle is acknowledged, for it is there ruled, that debt for an escape will not lie against an heir. And in Whitacres v. Onelsey and others, executors,^[3] it was held

p. 178

that it could not be supported against the warden of the fleet. , From these authorities it is evident the action cannot be maintained.

Russel, contra,

merely referred the court to 1 Com. Dig. tit. Administration, and the authorities there, to [*125] prove *that when the ground of complaint rested on tort, or misfeasance, there was a remedy against the administrator.

The law has been settled, both from the time of Dyer and Fitzherbert, as stated by the counsel for the defendant; judgment must, therefore, be in favor of the demurrer.

Judgment for the demurrant.(a)

Footnotes

(a (a ) S. P. 1 Roll. Abr. 921; Mason v. Dix, W. Jones, 173; S. C. Latch, 167. But an executor may bring case against a sheriff for a false return of a levy Williams v. Carey, 1 Salk. 12. Though the executors of a sheriff cannot maintain case against a gaoler for an escape of prisoners committed to his custody by their testator. Kain and others v. Ostrander, 8 Johns. Rep. 207 . See also The People v. Gibbs, 9 Wend. 29 ; Gravath v. Plympton, 13 Mass, R. 454 .