52 N.H. 477 | N.H. | 1872
The remedy for the injury to the land does not, at common law, survive to the administrator. 1 Saund. 217, note a; 1 Bouv. Law Dict. 64, 65, and cases cited; Holmes v. Moore, 5 Pick. 257; Vittum v. Gilman, 48 N. H. 416.
The rules of the common law have been changed by statute, both in England and in this State, but not so as to reach a case like this.
By the statute of 4 Edw. 3, ch. 7, de bonis asportatis in vita testatoris, a remedy was given to executors by action of trespass for injuries to the goods of the testator in his lifetime; and, by an equitable construction of that statute, it was held applicable to injuries to personal estate other than trespasses; but it was held not to extend to injuries to the person or to real estate. See the cases above cited.
The statute of 3 and 4 W. 4, ch. 4, sec. 2, gave a remedy to executors for injuries done in the lifetime of the testator to his real estate; but, of course, this statute is not in force here.
Our own statute, which saves actions of trespass to real estate, together with real actions and actions of ejectment, does not extend to this case. Gen. Stats., ch. 207, sec. 11.
There seems to be no good reason for this distinction, but the legislature have seen fit to save actions of trover and trespass by name, and there is nothing that indicates the use of the term trespass to denote any injury to real estate other than what is a trespass in form. Until, then, the legislature have used terms which fairly comprehend injuries
The administrator also sues for injuries to the intestate’s real estate, caused by a continuance of the same mill-dam, and relies upon Gen. Stats., ch. 179, sec. 19; but he fails to allege any title to the land in the administrator, or any right to sue; on the contrary, he alleges the injury to be to the heirs and assigns of the deceased. It is very clear, we think, that it should appear in the declaration that the plaintiff, as such administrator, has a right to sue, as he would have if the intestate died seized and the estate was insolvent, and the administration not closed. But nothing of this kind is alleged ; and, for aught that appears, the property has descended to the heirs, and they alone can sue. The statute of 1872, chapter 48, does not apply to pending suits, and cannot save this case. Demurrer sustained.