ACTIO PERSONALIS MORITUR CUM PERSONA (Lat.). A personal ac tion dies with the person.
In Practice. A. maxim which formerly expressed the law in regard to the surviving of personal actions.
2. To render the maxim perfectly true, the expression "personal actions" must be restricted very much within its usual limits. In the most extensive sense, all actions are personal which are neither real nor mixed, and in this sense of the word personal the maxim is not true. A further distinction, moreover, is to be made between personal actions actually commenced and pending at the death of the plaintiff or defendant, and causes of action upon which suit might have been, but was not, brought by or against the deceased in his lifetime. In the case of ac tions actually commenced, the old rule was that the suit abated by the death of either party. But the inconvenience of this rigor of the common law has been modified by statutory provisions in England and the states of this country, which prescribe in substance that when the cause of action sur vives to or against the personal representa tives of the deceased, the suit shall not abate by the death of the party, but may proceed on the substitution of the personal repre sentatives on the record by scire facias, or, in some states, by simple suggestion of the facts on the record. See 6 Wheat. 260. And this brings us to the consideration of what causes of action survive.
3. CONTRACTS.-It is clear that, in general, a man's personal representatives are liable for his breach of contract on the one hand, and, on the other, are entitled to enforce con tracts made with him. This is the rule; but it admits of a few exceptions. 4 Mass. 681, 422 • 6 Me. 470 ; 2 D. Chipm. Vt. 41.
do action lies against executors upon a covenant to be performed by the testator in person, and which consequently the executor cannot perform, and the performance of which is prevented by the death of testator, 3 Wils. Ch. 99 ; Croke, Eliz. 553 ; 1 Rolle, 359; as if an author undertakes to compose a work, or a master covenants to instruct an apprentice, but is prevented by death. See Williams, Exec. But for a breach committed by deceased in his lifetime, his exe cutor would be answerable. Croke, Eliz. 553 ; 1 Mees. & W. Exch. 423, per Parke, B.; 19
Penn. St. 234.
As to what are such contracts, see 2 Perr. k D. 251; 10 Ad. & E. 45 ; 1 Mees. & W. Exch. 423 ; 1 Tyrwh. Exch. 349 ; 2 Strange, 1266 ; 2 W. Blackst. 856 ; 380. But whether the contract is of such a nature is a mere question of construction, depending upon the intention of the parties, Hob. 9 ; Yelv. 9 ; Croke, Jac. 282 ; 1 Bingh. 225 ; unless the intention be such as the law will not enforce. 19 Penn. St. 233, per Lowrie, J.
4. Again, an executor, &c. cannot main tain an action on a promise made to deceased where the damage consisted entirely in the personal suffering of the deceased without any injury to his personal estate, as a breach of promise of marriage. 2 Maule & S. 408; 4 Cush._ Mass. 408. And as to the right of an executor or administrator to sue on a con tract broken in the testator's lifetime, where no damage to the personal estate can be stated, see 2 Cromp. M. & R. Exch. 588 ; 5 Tyrwh. Exch. 985, and the cases there cited.
The fact whether or not the estate of the deceased has suffered loss or damage would seem to be the criterion of the right of the personal representative to sue in another class of cases, that is, where there is a breach of an implied promise founded on a tort. For where the action, though in form ex con tractu, is founded upon a tort to the person, it does not in general survive to the executor. Thus, with respect to injuries effecting the life and health of the deceased ; all such as arise out of the unskilfulness of medical practitioners ; or the imprisonment of the party occasioned by the negligence of his attorney, no action, generally speaking, can be sustained by the executor or administrator on a breach of the implied promise by the person employed to exhibit a proper portion of skill and attention : such cases being in substance actions for injuries to the person. 2 Maule & S. 415, 416 ; 8 Mees. & W. Exch. 854. And it has been held that for the breach of an implied promise of an attorney to investigate the title to a freehold estate, the executor of the purchaser cannot sue without stating that the testator sustained some actual damage as to his estate. 4 J. B. Moore, 532. But the law on this point has been considerably modified by statute. See N '7-15.