5. On the other hand, where the breach of the implied promise has occasioned damage to the personal estate of the deceased, though it has been said that an action in form ex contrcvlu founded upon a tort whereby damage has been occasioned to the estate of the deceased, as debt against the sheriff for an escape, does not survive at common law, 1 Ga. 514 (though in this case the rule is altered in that state by statute), yet the better opinion is that, if the executor can show that damage has accrued to the personal estate of the de ceased by the breach of an express or implied promise, he may well sustain an action at common law, to recover such damage, though the action is in some sort founded on a tort. Williams, Exec. 676 ; citing in extenso, 2 Brod. & B. 102 ; 4 J. B. Moore, 532. And see 3 Wooddeson, Lect. 78, 79 ; Marsh. 14. So, by waiving the tort in a trespass, and going for the value of the property, the ac tion of assumpsit lies as well for as against executors. 1 Bay, So. C. 58.
In the case of an action on a contract commenced against joint defendants one of whom dies pending the suit, the rule varies. In some of the states the personal repre sentatives of the deceased defendant may be added as parties and the judgment taken against them jointly with the survivors. 27 Miss. 455 ; 9 Tex. 519. In others the English rule obtains which requires judgment to be taken against the survivors only ; and this is conceived to be the better rule, because the judgment against the original defendants is de bonis propriis, while that against the executors is de bonis testatoris.
6. TORTS.—The ancient maxim which we are discussing applies more peculiarly to cases of tort. It was a principle of the com mon law that, if an injury was done either to the person or property of another for which damages only could he recovered in satisfaction,—where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty,— the action died with the person to whom or by whom the wrong was done. See Williams, Exec. 668, 669 ; 3 Blackstone, Comm. 302 ; 1 Saund. 216, 217, n. (1) ; Cowp. 371-377 ; 3 Wooddeson, Lect. 73; Viner, Abr. Exe cutors, 123; Comyn, Dig. Administrator 13).
But if the goods, &c. of the testator taken, away continue in specie in the hands of the wrong-doer, it has long been decided that replevin and detinue will lie for the executor to recover back the specific goods, &c., W. Jones, 173, 174 ; 1 Saund. 217, note (1) ; 1 Hempst. C. C. 711 ; 10 Ark. 504 ; or, in case they are sold, an action for money had and received will lie for the executor to recover the value. 1 Saund. 217, n. (1). And actions ex delicto, where one has obtained the pro perty of another and converted it, survive to the representatives of the injured party, as replevin, trespass de bonis asport. But where the wrong-doer acquired no gain, though the other party has suffered loss, the death of either party destroys the right of action.
3 Mass. 321 ; 6 How. 11 ; 1 Bay, So. C. 58; 4 Mass. 480 ; 13 id. 272, 454 ; 1 Root, Conn. 216.
7. Successive innovation& upon this rule of the common law have been made by va rious statutes, with regard to actions which survive to executors and administrators.
The stet. 4. Ed. HI. c. 7 gave a remedy to executors for a trespass done to the personal estate of their testators, which was extended to executors of executors by the st. 25 Ed.
III. c. 5. But these statutes did not include wrongs done to the person or freehold of the testator or intestate. Williams, Exec. 670. By an equitable construction of these statutes, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it has become less beneficial to the executor or administrator, as the deceased himself might have had, whatever the form of action may be. 1 Saund. 217, n. (1) ; 1 Carr. & K. 271 ; Ow. 99 ; 7 East, 134, 136 ; 11 Viner, Abr. 125 ; Latch. 167 ' • Poph. 190; W. Jones, 173, 174; 2 Maule & S. 416 ; 5 Coke, 27 a ; 4 Mod. 403 ; 12 id. 71 ; Ld. Raym. 973 ; 1 Ventr. 31 ; 1 Rolle, Abr. 912; Croke, Car. 297 ; 2 Brod. & B. 103 ; 1 Strange, 212 ; 2 Brev. No. C. 27.
S. And the laws of the different states, either by express enactment or by having adopted the English statutes, give a remedy to executors in cases of injuries done to the personal property of their testator in his lifetime. Troyer for a conversion in the life time of the testator may be brought by his executor. T. U. P. Charlt. Ga. 261 ; 4 Ark. 173 ; 11 Ala. N. s. 859. But an executor cannot sue for expenses incnrred by his tes tator in defending against a groundless suit, 1 Day, Conn. 285 ; nor in Alabama (under the Act of 1826) for any injury done in the lifetime of deceased, 15 Ala. 109 ; nor in Vermont can he bring trespass on the case, except to recover damages for an injury to some specific property. 20 Vt. 244. And he cannot bring case against a sheriff for a false return in testator's action. Ibid. But he may have case against the sheriff for not keeping property attached, and delivering it to the officer holding the execution in his tes tator's suit, 20 Vt. 244, n. ; and case against the sheriff for the default of his deputy in not paying over to testator money collected in execution. 22 Vt. 108. In Maine, an executor may revive an action against the sheriff for misfeasance of his deputy, but not an action against the deputy for his misfeasance. 30 Me. 194. So, where the action is merely penal, it does not survive, Cam. & N. No. C. 72 ; as to recover penalties for taking illegal fees by an officer from the intestate in his lifetime. 7 Serg. & R. Penn, 183. But in such case the administrator may recover back the excess paid above the legal charge. Ibid 9. The stat. 3 & 4 W. IV. c. 42, 2 gave a remedy to executors, &c. for injuries done in the lifetime of the testator or intestate to his real property, which case was not em braced in the stat. Ed. III. This statute has introduced a material alteration in the maxim actio personalis moritur cum persona as well in favor of executors and administrators of the party injured as against the personal re presentatives of the wrong-doer, but respects only injuries to personal and real property. Chitty, Pl. Parties to Adtions in form ex de licto. Similar statutory provisions have been made in most of the states. Thus, trespass quare clausum fregit survives in North Ca rolina, 4 Dev. & B. No. C. 68 ; 3 Dev. No. C. 153; in Maryland, 1 Md. 102 ; in Tennessee, 3 Sneed, Tenn. 128 ; and in Massachusetts, 21 Pick. Mass. 250; and then it makes no difference whether the action was commenced before or after the death of the injured party.