5 Ala. 369 | Ala. | 1843
The common law maxim that personal actions die with the person, has been modified in England, by the act of 4 Edward 3, c. 7, and in this state by the statute to be found in Aik. Dig. 260, § 6. “All actions of trespass quare clausum fregit, and actions of trespass to recover damages forinjuriesdo personal property, may, if the plaintiff or plaintiffs die, be revived by his, her or their representatives, in the same manner as actions on contracts.”
In the case of Nettles v. Barnett, [8 Porter, 181,] we held that this statute did not authorize the revival of a suit, brought for a trespass de bonis asportatis against the administrator of the defendant, who died pending the suit, but was confined to the case of the death of plaintiffs. We entertain but little doubt that the action brought in this case is within the equity of the statute,
The action in this case is clearly within the common law rule, and not being provided for by statute, upon the death of the defendant the right of action was gone, and could not be revived against his representative. The judgment must therefore be reversed.