The opinion of the court was delivered, by
It is- clear that under the provisions of the Act of February 24th 1834, Purd. Dig. 286, the action of trespass for mesne profits did not abate by the death of the defendant in the ejectment, but survived against his personal representative. The act provides that “ executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libels and for wrongs done to the person ; and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent if he had lived.” The language of this provision is too plain to require interpretation or to admit of doubt as to its meaning. It declares, as clearly as words can, that executors or administrators shall be liable to be sued in any action which might have been maintained against the decedent, whom they represent, if he had lived, except actions for slander, for libels and for wrongs done, to the person. If then the act is to have its plain meaning, nothing nan be more obvious than that the action of trespass for mesne profits does not abate by the death of the trespasser, but survives against his personal representatives. To give it any other construction would be a clear perversion of its meaning. But it is strenuously urged that since the passage of the act, this court has repeatedly held that the action for mesne profits abates upon the death of the defendant in ejectment, and that a plaintiff has no remedy against his personal representatives; and the cases of Harker v. Whitaker, 5 Watt’s 474, Bard v. Nevin, 9 Id. 328, and Means v. The Presbyterian Church, 3 Barr 93, are cited and relied on to sustain the position. The case of Harker v. Whitaker, decided in 1839, was an action of account render for mesne profits brought against the personal representatives of a deceased defendant in ejectment, and the court below instructed the jury that the action would not lie, and directed them to return a verdict for the defendant. This court, conceding that under special circumstances the action might be sustained for defect of remedy, as a substitute for a bill in equity, affirmed the judgment, on the ground that a bill in equity itself would not lie under the circumstances disclosed by the evidence. An examination of the opinion will show that ,the-decision is not put on the ground that the action abated by the
The case of Bard against Nevin, decided in 1840, was an action of assumpsit brought against the personal representative of a deceased defendant in ejectment, for mesne profits which accrued during the pendency of that action. The court below, on the case stated, gave judgment for the defendant; and it was affirmed by this court, in a per curiam, opinion, on the principle ruled in Harker v. Whitaker, that an action at law cannot be sustained as a substitute for a bill in equity where a bill in equity itself w'ould not lie.
The case of Means v. The Presbyterian Church, decided in 1846, was an action of trespass for mesne profits brought by a trustee against the defendant in ejectment, and it was held that the action did not abate by his death, but survived for the use of the church of which he was the trustee, and that his heir at law was-!the proper party to be substituted as plaintiff. No other question was presented by the record, and nothing else was really decided. It is true that in delivering the opinion of the court, Rogers, J., said: “ These eases,” referring to Harker v. Whitaker and Bard v. Nevin, “ are ruled on the principle that the cause of action does not survive.” But this was a mere dictum, and, unless we have misapprehended the principle, was clearly a mistake. But whether so or not, these cases, including Means against the Church, were decided without any reference to the Act of 1834, and can have no possible influence in determining its meaning. It was not cited by the counsel or the court in either of them, and as a matter of course no construction was given to its provisions. We are then left free to interpret the act according to- its plain meaning, and it is clear that under its provisions the actions did not abate, and there was no error in refusing to charge that there could be no recovery in this suit for mesne profits received by the decedent in his lifetime. The Act of April 12th 1869, Purd. Dig. 1539, which provides that no action or right of action for mesne profits * * * shall abate by reason of the death of the person liable therefor, &c., wrought no change in the existing law,.
It is a sufficient answer to the matter next complained of, that there is nothing in the pleadings or evidence which made it the duty of the court to instruct the jury that there could be no recovery in this action for mesne profits received by the executors. It is not alleged in the declaration, nor shown by the evidence sent up with the bill of exceptions, that any rents or profits of the land were received by the executrix. On the contrary, it is expressly admitted on the record, that the rents were received by the decedent. Nor was there any error in refusing to instruct the jury that if they found that the plaintiff had released Bouvier’s estate from liability, their verdict must be for the defendant. The fact that the plaintiff settled with Bouvier’s executors for the rents which they received and which were properly chargeable to them, did not constitute in law or equity any defence to the rents which it is admitted that the decedent received. The settlement with Bouvier’s executors did not prejudice the defendant in any way, and cannot be regarded as satisfaction of the rents sought to be recovered in this action. Under the evidence the plaintiffs were clearly entitled to recover, and the judgment must be affirmed.
Judgment affirmed.