Successive innovations upon this rule of the common law have been made by various statutes with regard to actions which sur vive to executors and administrators.
The stat. 4 Ed. III. c. 7, gave a remedy to executors for a trespass done to the per sonal estate of their testators, which was ex tended to executors of executors by the stat. 25 Ed. III. c. 5. But these statutes did not include wrongs done to the person or freehold of the testator or intestate ; Wms. Exec. 670. By an equitable construction of these stat utes, 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 bone. ficial to the executor or administrator, as the deceased himself might have had, what ever the form of action may be; 1 Saund. 217 ; 1 Carr. & K. 271; W. Jones 173 ; 2 M. & S. 416 ; 5 Co. 27 a; Cro. Car. 297. These statutes are a recognized part of the com mon law in this country ; Hegerich v. Ked die, 99 N. Y. 260, 1 N. E. 787, 52 Am. Rep. 25 ; they are followed by many state statutes and both these and the English statutes have been liberally construed in favor of survival ink both countries ; 7 East 134 ; Bak er's Adm'r v. Crandall, 78 Mo. 584, 47 AM. Rep. 126 ; Ten Eyck v. Runk, 31 N. J. L. 428; Withee v. Brooks, 65 Me. 18; Aldrich v. Howard, 8 R. I. 125, 86 Am. Rep. 615 ; Fried v. R. Co., 25 How. Pr. (N. Y.) 287 ; Nettles' Ex'rs v. D'Oyley, 2 Brev. (S. C.) 27. 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 prop erty of their testator in his lifetime. At common law an action of replevin was abat ed by the death of the defendant, but not by the death of the plaintiff ; Potter v. Van Vranken, 36 N. Y. 619, 627; Mellen v, Bald win, 4 Mass. 480; 1 And. 241; and see Heist v. Heibrenner, 11 S. & R. (Pa.) 131; Keite v. Boyd, 16 id. 300 ; but the effect of the death of defendant is generally dependent upon the construction of state statutes under which, in most states, the action is saved, as in Kingsbury's Ex'rs v. Lane's Ex'rs, 21 Mo. 115; McCrory v. Hamilton, 39 Ill. App. 490; O'Neill v. Murry, 6 Dak. 107, 50 N. W. 619. In Hambly v. Trott, Cowp. 37, Lord Mansfield
held that in actions ex delicto, the liability for the tort died with the person, but that if thereby property was acquired, the personal representatives were liable, and this prin ciple has been extensively applied in connec tion with the stat. 4 Edw. III. both in the enactment and construction of the state stat utes. The cases are collected and classified in 53 Am. Rep. 525, note.
Troyer for a conversion in the lifetime of the testator may be brought by his executor ; Parrott's Adm'rs v. Dubignon, T. U. P. Charlt. (Ga.) 261; Eubanks v. Dobbs, 4 Ark. 173 ; Nations v. Hawkins' Adm'rs, 11 Ala. 859. But an executor cannot sue for expenses in curred by his testator in defending against a groundless suit ; Deming v. Taylor, 1 Day (Conn.) 285; nor in Alabama (under the Act of 1826) for any injury done in the lifetime of deceased; Garey v. Edwards, 15 Ala. 109 ; nor in Vermont can he bring trespass on the case, except to recover damages for an in jury to some specific property; Barrett's Adm'r v. Copeland, 20 Vt. 244. And he can not 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 testator's suit ; Barrett's Adm'r v. Copeland, 20 Vt. 244, n.; and case against the sheriff for the default of his deputy in not paying over to testator money collected in execu tion; Bellows v. Allen's Adm'r, 22 Vt. 108. An action in the nature of an action on the case for injuries resulting from breach of carrier's contract to transport a passenger safely, survives to the personal representa tive; Winnegar's Adm'r v. Ry. Co., 85 Ky. 547, 4 S. W. 237. An executor may revive an action against the sheriff for misfeasance of his deputy, but not an action against the deputy for his misfeasance; Valentine v. Norton, 30 Me. 194. So, where the action is merely penal, it does not survive; Estis' Ex'x v. Lenox, 1 N. C. 292 ; as to recover penalties for taking illegal fees by an officer from the intestate in his lifetime ; Reed v. Cist, 7 S. & R. (Pa.) 183. But in such case the adminis trator may recover back the excess paid above the legal charge ; ibid.