Paine v. Ulmer

An action against a sheriff for the default of his deputy, in not returning an execution, survives to the administrator of the judgment creditor.

This was an action of the case against the defendant, as sheriff of the county of Hancock, for the default of his deputy, in not returning an execution, which the plaintiff had committed to him. Before the last November term, the plaintiff had died, and Charles Cushing, jun. Esq., to whom administration of his estate had been committed, moved at that term to be admitted to prosecute the action. He was accordingly admitted, de bene esse, by Parker, J., who satin the trials of that term. A verdict was found for the plaintiff, subject to the opinion of the Court on the right of the administrator to prosecute the suit. * The cause stood over to this term ; and now, Aylwin, [ * 318 ] of counsel for the plaintiff, contended that this action survived to the administrator, by the rules which had hitherto been applied in the exposition of the statute of 4 Edio. 3, c. 7, de bonis asportatis. It has been repeatedly decided, that all wrongs done to the estate of the testator, come within the equity of this statute, and that for them an executor may bring his action. Thus an action of debt lies by an executor against a jailer for an escape on execution in the testator’s lifetime; (1) though it has been doubted whether it lay foi; an escape of mesne process. (2) It has also been adjudged, that an executor might bring a writ of Ravishment of ward, Ejectione firma, and (fiare impedit. (3) If these cases are to be classed among those which are considered as wrongs to the estate of the testator or intestate, there can be no doubt that the case at bar falls within the same class ; as it appears that the original judgment on which the execution issued, was for a debt due to the intestaté, which has been lost by the non-feasance of the deputy of the defendant. The statute de bonis asportatis has always received a liberal construction in favor of executors, according to Lord Chief Justice Holt, m the case of Williams vs. Grey, (4) which case virtually decides that this action survives.