delivered the opinion of the Court. Two questions are referred to the Court by the report of the referees. 1. Can this action be maintained by the executor ? 2. Was it barred by a former judgment between the parties ?
1. Jlctio personalis moritur cum persona, was a maxim of the ancient common law. And before the statute of 4 Edward 3, c. 7, no action ex delicto would survive to the personal representative. But that statute authorized an executor to maintain an action of trespass for chattels taken and carried away in the lifetime of his testator. The principle, by an equitable and somewhat liberal construction of the statute, was extended to all cases of injury to personal property,, whether actually removed or destroyed or not. So on the other hand, whenever the property taken by the testator or intestate was converted to his own use, so as to become a part of his assets, an action, in some form, would lie against his representative to recover the value of the property. Mellen v. Baldwin,
There can be no doubt that the ancient statute of 4 Edward was adopted and practised upon before our constitution was formed. 6 Dane’s Abr. 607. Under that statute it has been holden, that trespass quare clausum fregit could not be maintained by an executor for cutting down trees, &c. though trespass de bonis asportatis for the same trees might be. Williams v. Breedon, 1 Bos. & Pul. 329 ; Emerson v. Emerson, 1 Ventr. 187 ; Le Mason v. Dixon, W. Jones, 174. The plaintiff therefore, without the aid of any of our own statutes, might have recovered for the asportation of the trees. The value of these trees is precisely what the referees have awarded him. Even if necessary, the Court, under the very general authority given them in Revised Stat. c. 100, § 22, might allow the plaintiff to change the form of his action.
But this is not necessary, for the form of the action is well supported by the 7th and 8th sections of the 93d chapter of the Revised Statutes. There can be no objection to the operation of these provisions ; for they only furnish a different remedy for an existing right. And the St. 1828, c. 112. which proba
2. The former judgment was rendered on a general demurrer to the declaration, and is no bar to this action.
The general rule undoubtedly is, that the judgment in one action shall bar all other suits between the same parties and for the same cause of action. Interest reipublica ut sit finis litium. But this rule is limited to judgments, rendered on the merits. If the plaintiff be nonsuit for want of proof, or because his allegata and probata do not agree, or for any other cause, he may commence another action. 1 Chitty on Pl. (5th ed.) 227 ; Gould on Pl. 478. Even a judgment of nonsuit on the merits, or on an agreed statem nt of facts, has been holden to be no bar to another action. Knox v. Waldoborough, 5 Greenl. 185 ; Bridge et al. v. Sumner,
It is apparent from the record, that the former judgment between these parties, was rendered upon the insufficiency of
Award of referees accepted.