Cummings v. Bird

Devens, J.

The original plaintiff having deceased at the time of the argument of this cause, and the administratrix having now come in, it is first to be determined whether the suit, which is for a libel upon him, has abated by his death. The rule of the common law is that actions of tort for misfeasance or malfeasance do not survive, and if this action does so in this Commonwealth it is by virtue of Gen. Sts. c. 127, § 1.* The ground taken by the counsel for the administratrix is, that as actions for damage done to real or personal estate survive, and as it is alleged that the plaintiff lost a lucrative employment by reason of the charges made in the alleged libel, the action may be maintained as for damage done to his estate. This argument cannot avail. In Walters v. Nettleton, 5 Cush. 544, it was decided that an action for libel did not survive against the administrator of the defendant, and in Nettleton v. Dinehart, 5 Cush. 543, it was further held that an action for malicious prosecution did not survive in favor of the administrator of the plaintiff. In the latter case the same argument as that used by the plaintiff here would have beeir equally pertinent, as the plaintiff had been subjected, as he alleged, *347 to a malicious prosecution, which must of necessity have occasioned him cost and expense and thus operated to diminish his estate. These cases are decisive of the present, and it would be a forced construction to give the provision of the statute such an extent as that claimed. The causes of action which survive are those, the effect of which has been to occasion injury to some specific property, either personal or real, which belonged to the deceased. Suit abated by death of plaintiff.

The Gen. Sts. c. 127, § 1, provide that: “In addition to the action* which survive by the common law, the following shall also survive: actions of replevin, of tort for assault, battery, imprisonment or other damage, to the person; for goods taken and carried away or converted by defendant to his own use; or for damage done to real or personal estate; and actions against sheriffs for malfeasance or nonfeasance of themselves or their deputies.”