ACTIO PERSONALIS MORITUR CUM PERSONA (Lat.). A personal action dies with the person.
In Practice. A maxim which expressed the law in regard to the surviving of per sonal actions.
This maxim does not apply in case of the civil death of either persons or corporations ; Shayne v. Publishing Co., 168 N. Y. 70, 61 N. E. 115, 55 L. R. A. 777, 85 Am. St. Rep. 654.
To render the maxim perfectly true, the expression "personal actions" must be re stricted 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. In re Connaway, 178 U. S. 421, 20 Sup. Ct. 951, 44 L. Ed. 1134; Meeker's Heirs 7 Wheat. (U. S.) 530, 5 L. Ed. 515. 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 survives to or against the personal representatives of the deceased, the suit shall not abate by the death of the party, but may proceed on the substitution of the personal representatives on the record by scfre facial, or in some states by simple suggestion of the facts on the record. See Green v. Watkins, 6 Wheat. (U. S.) 260, 5 L. Ed. 256.
CONTBApTS.-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 contracts made with him. This is the rule ; but- it admits of a few exceptions ; Stimp son v. Sprague, 6 Greenl. (Me.) 470; Wright v. Eldred, 2 D. Chipm. (Vt.) 41.
No action lies against executors upon a covenant to be performed by the testator in person, and which consequently the execu tor cannot perform, and the performance of which is prevented by the death of tes tator ; 3 Wils. Ch. 99 ; Cro. Eliz. 553; Howe
Sewing Mach. Co. v. Rosensteel, 24 Fed. 583 ; as if an author undertakes to compose a work, or a master covenants to instruct an apprentice, but is prevented by death. See Wms. Exec. 1467. But, for a breach commit ted by deceased in his lifetime, his executor would be answerable ; 1 M. & W. 423, per Parke, B. ; Dickinson v. Calahan's Adm'rs, 19 Pa. 234.
As to what are such contracts, see 2 Perr. & D. 251; 10 Ad. & E. 45 ; 1 M. & W. 423 ; Dempsey v. Hertzfield, 30 Ga. 866; Siler v. Gray, 86 N. C. 566. But whether the con tract is of such a nature is a mere question of construction, depending upon the inten tion of the parties ; Cro. Jac. 282 ; 1 Bingh. 225; unless the intention be such as the law will not enforce; Dickinson v. Calaban's Adm'rs, 19 Pa. 233.
Under a statute recognizing as surviving causes of action those which survived at common law, a cause of action, on a covenant on which a decedent might have been sued, may be enforced against his representatives, and it was held that the rule of common law that a suit abated though the cause of ac tion survived, was modified by the statute, and a suit pending against decedent on a covenant did not abate ; Sprague v. Greene, 20 R. I. 153, 37 Atl. 699.
Again, an executor, etc., cannot maintain an action on a promise made to decedent 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 M. & S. 408; Smith v. Sherman, 4 Cush. (Mass.) 408 ; Hovey v. Page, 55 Me. 142 ; L. R. 10 C. P. 189 ; Latti more v. Simmons, 13 S. & R. (Pa.) 183; Mil ler v. Wilson, 24 Pa. 115 ; Wade v. Kalb fleisch, 58 N. Y. 282, 17 Am. Rep. 250; Steb bins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Hayden v. Vreeland, 37 N. J. L. 372, 18 Am. Rep. 723; Grubb's Adm'r v. Suit, 32 Grat. (Va.) 203, 34 Am. Rep. 765. But in Louisiana the action survives if there has been a default, on the ground that the ob-_ ligation to fulfill the engagement is merged in the obligation to respond in damages for the default; Johnson v. Levy, 118 La. 447, 43 South. 46, 9 L. R. A. (N. S.) 1020, 118 Am. St. Rep. 378, 10 Ann. Cas. 722.