1 Johns. 396 | N.Y. Sup. Ct. | 1806
The only question in this case is, whether any suit can be maintained against the representatives of a deceased postmaster, for the embezzlement of money by a clerk in the office, by taking the same out of a letter deposited in the office for transportation by thd mail.
i I think that this action is not maintainable against the representatives. I avoid giving any opinion whether the principal, if alive, would be responsible for the fidelity of thé clerk, either under the particular circumstances of this case, or on general grounds. It is a general and universal proposition that personal actions founded in tort, or for mis-r feasance, die with the person. That this cause of action-arises ex delicto cannot be controverted no action would, lie on an assumpsit, because, though the clerk received the money, it was taken feloniously and contrary to his duty and trust; it never came to the hands of the intes'l-tate.
Kent, C. J. Thompson, J. and Tompkins, J. concurred..
This case is very distinguishable from those that were cited. In Lane v. Cotton & Frankland, there was an express provision in the patent, constituting the defendants postmasters-general, “ that they “ should not be chargeable to account for the mismanage- “ ment or default of their inferior officers, but only for “ their own voluntary defaults.” Though I should have supposed that this was intended only as a protection against the government’s calling on them for such defaults, it is a clause which is relied on in giving judgment. It is Also considered ns a circumstance in favour of the defend*
But if a cause of action ever existed, it died, it is said, with the intestate ; though this was not strongly insisted on. To go through all the cases which have sprung front the maxim of actio personalis moritur cum persona would tend, as Lord Biansfield. says, “ rather to confound than “ elucidate.”- If literally applied, not even debt, or assumpsit would lie against executors on a note or bond of their testator. This, however, is not its construction ; for courts, finding the inconvenience of being frequently called upon to apply a maxim, the generality of whose language is' well calculated to mislead, have endeavoured to restrain it within reasonable bounds. In England, ' therefore, if the suit, which is brought, does not require a -plea of not guilty,, it will generally be sustained. It must, and ever will, remain incomprehensible to one of common discernment only, why this criterion has been adopt•ed as a test of an executor’s liability, rather than the intrinsic merits of the -plaintiff’s demand. Shall a man carry away the goods, or convert the property of another, -or defraud him -to any -extent, or injure him by pis negli
Judgment of nonsuit.
3 Wils. 429, 443. 1 B. & Puller, 404, &c. 1 East, 106. 6 Term, 125. 1 Salk. 282. The cases in Salk. & 1 B. & Puller state the ground on which the master is liable,
Cowper, 371.
T. Ray. 72.
Ante, p 37. Hatten v. Speyer.
Cowper, 371
Ld Ray. 646.