ACTIO PERSONALIS MIORITUR CUM PERSONA. That a personal action dies with the
person, is an ancient and uncontested maxim. But the term personal action,
requires explanation. In a large sense all actions except those for the
recovery of real property may be called personal. This definition would
include contracts for the payment of money, which never were supposed to die
with the person. See 1 Saund. Rep. 217, note 1.
2. The maxim must therefore be taken in a more restricted meaning. It extends to all wrongs attended with actual force, whether the affect the person or property and to all injuries to the person only, though without actual force. Thus stood originally the common law, in which an alteration was made by the statute 4 Ed. III. c. 7, which gave an action to an executor for an injury done to the personal property of his testator in his lifetime, which was extended to the executor of an executor, by statute of 25 Ed. III. c. 5. And by statute 31 Ed. III. c. 11, administrators have the same remedy as executors.
3. These statutes received a liberal construction from the judges, but they do not extend to injuries to the person of the deceased, nor to his freehold. So that no action lies by an executor or administrator for an assault and battery of the deceased, or trespass, vi et armis on his land, or for slander, because it is merely a personal injury. Neither do they extend to actions against executors or administrators for wrongs committed by the deceased. 13 S. 184; Cowp. 376; 1 Saund. 216, 217, n. 1; Com. Dig 241, B 13; 1 Salk. 252; 6 S. & R. 272; W. Jones, 215.
4. Assumpsit may be maintained by executors or administrators, in those cases where an injury has been done to the personal, property of the deceased, and he might in his lifetime have waived the tort and sued in assumpsit. 1 Bay's R. 61; Cowp. 374; 3 Mass. 321; 4 Mass. 480; 13 Mass. 272; 1 Root, 2165. An action for a breach of a promise of marriage cannot be maintained by an executor, 2 M. & S. 408; nor against 13 S. & R. 183; 1 Picker. 71; unless, perhaps, where the plaintiff's testator sustained special damages. 13 S. & R. 185. See further 12.S. & R. 76; 1 Day's Cas. 180; Bac. Abr. Ejectment, H11 Vin. Abr. 123; 1 Salk. 314; 2 Ld. Raym. 971 1 Salk. 12 Id. 295; Cro. Eliz. 377, 8 1 Str. 60 Went. Ex. 65; 1 Vent. 176 id. so; 7 Serg. & R. 183; 7 East, 134-6 1 Saund. 216, a, n. 1; 6 Mass. 394; 2 Johns. 227; 1 Bos. & Pull. 330, n. a.; 1 Chit. Pi. 86; 3 Bouv. Inst. n. 2750; this Dictionary, tit. actions; Death; Parties to actions; Survivor.