Griswold v. Brown

Griswold v. Brown. In the Court below, Friend Griswold, Administrator of Nathaniel Gris-wold, deceased, Plaintiff; Peter Brown and Philander Moore, Defendants. -Action of trespass, for entering upon t!,ie iancls, and burning the mills of the intestate, in his life-limp, survives to the administrator. N ATHANIEL GRISWOLD brought an action of trespass, against Brown and Moore, for entering the plaintiff’s close, and burning his mile. This suit was prosecuted to final judgment, before the Superior Court, and a verdict obtained against both the?, defendants. Brown and Moore then brought a petition for a new trial, during the pendency of which, the defendant therein, and plaintiff in the original action, died; and a citation issued to Friend Griswold, his administrator, to appear and defend. The administrator appeared, and pleaded in abatement, that the action, in which a new trial prayed for, is an action of trespass ; that if a new trial should be granted, it must be prosecuted by the administrator ; that the administrator could not prosecute such action ; that, therefore, no ne w trial could be granted, and the petition ought to be dismissed. The Court adjudged the plea insufficient; a hearing was had on the merits ; and a new trial granted. On the second trial, the defendants pleaded, severally, not guilty ; and a verdict was found, and judgment rendered, against Moore, and in favour of Brown. 1803. The administrator brought a vi rit of error, and assign ed for error, Í. That the Superior Court proceeded to hear tin-petition, and to grant a new trial, after the death of the plaintiff in the original action. 2. That said Court proceeded to the second trial, committed the case to the jury, and rendered judgment therein.■ - • - Ingcr.soli and Eehvarc&, (of New-Haven) for the plaintiff in error, contended, that the petition was, by the death of Nathaniel Griswold, abated, and could not be revived against the administrator. The original, action being for a trespass on a freehold estate, it could not be prosecuted, by the personal representativ e of the plaintiff, after his decease, Goodrich, (of Hartford) and Dana, for the defendants in error, contended, that it was competent for the Court to proceed in the petition, after the death of Nathaniel Griswold, and to grant a new trial. A judgment had been obtained. It was a debt against Brown and Moore, and assets in the hands of the administrator. It is inequitable that the death of the intestate should render the judgment irreversible- The original action was trespass for entering on the lands, and burning.the mills. It was aw action for damages, and not for tide, in the life of the intestate. The right of action, therefore, belonged to the administrator. If the plaintiff had died before the trial, the action would have survived ; and his administrator might have entered, and prosecuted. The old maxim, that actio personalis v.ioriilur cum persona* has not a general, much less an universal, application. It has not the same application as to toris done to, and done by, the testator, The principle of the Stab 4 Echv. III. s. 8. by which' an action is given to executors, for goods taken out of their testator’s possession, extends to cases of damage done to the -realty. Onvp. 376, llambly N- ’Twit. 2 Bac. Abr. 439. 40. 11 V-im Covsp. 575, Ilaxibíy t. Tx/tt, 2 Bac. Aar. 445. I Sail- 314, Berwick v. Andrewvs. 2 Ld.JRayir* 97t5 s.-c. 1 Sail. 12, Williams v. Carey. 1 Ld. Rayw. 40, s. c. 1 Sira. CO, Crosslcr v. Ogleby. 1 Salk. 295, Ling v. Ay ¿off. JLsp. Dig. 295. Cro Luz. 377, 8* Rutland w Rutland, Went. Lx. 65. Tol.Ilx. 555. 1 Vert. 156. Lucy \. Levington. Id. 30, Justice MoretonL ca&e, Cro. Luz. 2a7¡ Snialtxood v. Coventry. Lsp. Dig. 439. [MAJORITY — Rr thf. whole Court,] Rr thf. whole Court, The judgment was affirmed.