On trial the plaintiff produced in evidence the record of a former action for ejectment, brought in this Court in 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 (491) 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 common law, 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, but after her death between her heirs and the plaintiff, so that the proceedings in that suit was res inter alios acta as to the defendant, the administrator, he 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 he 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 nonsuit entered, if, on the matter above stated, the law should be against the *Page 276 plaintiff. The presiding judge retaining the opinion expressed on the trial, accordingly directed a nonsuit to be entered, from which the plaintiff prayed an appeal to this Court. (495) 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 1786, personal antions [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. III., died with the person, and could not be revived, either by or against the executors 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 Laws 1786, ch. 253, the representatives were allowed to carry 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 restrict the privilege to such actions only as might have been brought by or against representatives at common law, a limitation to that effect would (496) probably have been introduced, especially as the statute of 8 and 9 Will. III., which 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. *Page 277
This construction was acquiesced 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 susceptible of 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, etc., 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, etc., 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 the same conclusion; 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. (497)
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 docketing 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 further 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 section 5 of the last mentioned act.
But in addition to these considerations, it may be remarked 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 abatement of suits by death the commentator observes that actions ex delicto never shall be revived either by or against the executors or other *Page 278 representatives. But in actions arising ex contractu, where the right descends to the representatives of the plaintiff, though the suit shall abate by 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, he meant bringing an action by or against the executor or other representative.
Every reason of policy, justice, and convenience which dictates (498) the propriety of continuing a pending suit seems to my mind equally strong in favor of instituting an original suit. And so generally has this construction been 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. Arnold v. Clement,4 N.C. 143.
The other question relative to the admissibility of the judgment against the heirs, as evidence against the administrator, is more difficult of solution. But after examining it in the various aspects in which it has been presented by the argument, endeavoring 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 against 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 fund out of which the damages are recoverable would clearly (499) 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 be heard on a question touching their inheritance; *Page 279 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 bona fide and real defense. 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 judgment. 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 called in to contest the principal question, as to the title; and there can consequently remain no solid (500) ground of defense on which he can resist the accessorial claim of mesne profits. In repeated 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.
PER CURIAM. Reversed.