The opinion of the court was expressed by
Mason, J.This is an action of trespass quare clausum fregit, brought by the appellant, as executrix of Caleb Kennerly, against the appellee, to recover damages for a trespass committed on the *107lands of the plaintiff’s testator in his life time. No question is raised by the pleadings or evidence involving the title or possession of the testator at the time the alleged trespass was committed, and we are therefore to regard the testator’s right to sue at the time of his death, as unimpeached. If the plaintiff can recover in this action at all, she must of necessity recover upon the strength of the title and possession of her testator, for by virtue of her privileges and powers as executrix, alone, she can claim neither. The question then submitted to our consideration is, did the right of action survive to the executrix, the plaintiff in the present case?
By our act of Assembly of 1798, ch. 101, sub-ch. 8, sec. 5, it is provided, that “executors and administrators shall have full power and authority to commence and prosecute any personal action whatever, in law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander and for injuries or torts done to the person.
And the act of 1801, ch. 74, sec. 38, provides, that no action of trespass quare clausum fregit, shall abate by the death of either party, but that the same shall be continued by the representative of the deceased.
The books upon pleading divide the different actions at law, into three classes, viz: real, personal and mixed. Suits for damages for injury to real property, are classed among the “personal actions.” If therefore the language of the act of 1798 is to be construed strictly, the present cause of action, is in expressed terms, embrac in that law, and made to survive to the executor or administrator. But it has been urged that the words “personal action,” are not to be taken in their technical, strict sense, but are to be regarded as giving the right to executors and administrators, only to bring and prosecute suits relating to the personal property of the deceased. By the statute 4 Edw., 3, ch. 7, and the decisions upon that statute, this was the law in Maryland previous to the act of 1798, and that act, if the view taken by the appellee be correct, was but a mere re-enactment of a law already in force. We cannot attribute to the legislature any *108such design, but must suppose they intended to give a different or literal meaning to the language they employed. If this act was to relate only to suits respecting the personal property, we are at a loss to find a reason, why actions of slander and assault and battery were excepted from its provisions. If the construction contended for be the correct one, then two actions would have been by implication excepted, as well as the action of trespass q, c. f. If on the other hand an express exception was necessary to exclude the two, (slander and assault,) it would have been equally necessary to exclude this action of trespass. If any confirmation of this view be necessary, we think it is to be found in the act of 1801, which provides in express terms, that an action of trespass quare clausum fregit, shall not abate by the death of the testator or intestate, but shall be continued by the representative. Can a valid reason be given why an executor should be empowered to continue an action of this kind, and not to commence one ? If the damages arising from the injury in the one case, should inure to the benefit of the personal estate, we do not see why they should not in the other.
We are clear in our opinion, for the reasons expressed, that the present action can be maintained.
This court, however, is of opinion, that there is a fatal objection to the declaration, which was sufficient to justify the county court in sustaining the demurrer. The declaration does not conclude by alleging that the plaintiff sustained any damage by reason of the injury complained of, but concludes by averring “that the said Caleb (the testator,) in his life time, was worse, and had damage to the value of $1500, and thereupon this suit is brought.” We can find no authority or precedent which would sanction such a declaration.
It has been suggested, that as the injury complained of, and the damages resulting therefrom, were confined to the testator in his life time, that they could not be laid in the declaration as accruing to the executrix. This remark would apply with equal force to all actions by executors sounding in damages, whether for torts or breach of contract. In no case *109where the cause of action arose in the life time of the deceased, can it be properly said that the damages actually accrued to the representative who sues for them. The true theory upon which these actions rest, would seem to be, not that the injury to the testator, and the damages resulting therefrom, constituted the immediate cause of action in the executor, but that the withholding of the damages by the party complained of, diminishes the personal assets, and thereby occasions an injury to the representative of the personal estate, which would authorise and require him to sue and lay the damages in his own name. We are at a loss to understand how a verdict and judgment could be rendered upon a declaration where no damages are laid to the plaintiff. In the case of Chilton vs. Jones, 4 Har. and John, 65, Mr. Taney says, in argument “the verdict and judgment are for damages, but there are no damages laid in the declaration. It is not necessary to cite authorities to show that this is fatal.” And the court reversed the judgment, It is true that in the case cited, no damages at all were laid, but it is difficult to discover any difference between such a case, and the one now-before us, where the damages are laid to a different person from the plaintiff in the action.
Most of the authorities which we have examined, even go to the extent that the plaintiff must not only conclude by alleging damages to himself, but -when he sues in a representative capacity, he must conclude by averring damages to himself in that capacity, “as executor,” for example. The case in 5 Binney, 16, and the form in 1 Har. Ent., 698, do not go to that length. This precise point, however, is not involved in this case, and need not be decided.
Judgment affirmed.