Clark v. Carroll

Irving, J., delivered the opinion of the Court. This suit was brought by the appellant against the appellee for malicious prosecution. Verdict and judgment having been rendered for the defendant, the plaintiff appealed, upon exceptions taken at the trial. Since the appeal, the defendant in the suit, the appellee here, has died.

Suggestion thereof has been duly made, accompanied by affidavit of a witness to the fact, which is not controverted, and a motion has been made to dismiss the appeal. In Baltimore and Ohio Railroad Company vs. Ritchie, 81 Md., 198 , this Court said, “suits for injuries to the person or character, die with the person and cannot he maintained by the representative of the deceased party.” Having lost his case upon trial against the appellee, he could not prosecute it again if there should be found error in any ruling at the trial. Ho procedendo could be awarded. The proper disposition of the case, however, is not by dismissal of the appeal as asked in the motion.

The practice in such case as established, is to enter the case abated. Booze vs. Humbird, 21 Md., 1 . That disposition will be made of the case. Case abated.

On the 28th of March, 1883, a motion was made by the appellant to strike out the judgment of this Court in the foregoing case, abating the suit, and to grant a re-argument of the cause. Reasons were filed in behalf of the motion. ¹⁸² The motion was submitted to Miller, Alvey, Robinson, Irving, and Ritchie, J. John T. Ensor, and Bichard Grason and Son, for the motion. Irving, J., delivered the opinion of the Court. The motion to strike out the judgment of this Court abating the suit, and to reinstate the cause for. argument, must be denied.

It has been pressed on the ground, that the Act of 1861, ch. 44, is supposed to save this action from abatement by reason of the death of the defendant therein. In this view we do not concur. By section 105, of Article 93, of the Code, (“title Testamentary Law,”) it is provided, that “executors and administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions for injury, done to the person, and they shall be liable to be sued in any Court of law or equity, in any action, (except as aforesaid,) which might have been maintained against the deceased,” &c. The exceptions herein made are identical with.those made in section 1, of Article 1, title “Abatement,” of the Code, which provides for substituting new parties in case of death.

By the Act of 1861, ch. 44, which is relied on, it is enacted, that “the words ‘action’s for anything done to the person, used in the one hundred and fifth section of this Article, shall not be held to embrace actions for illegal arrest, false imprisonment, or a violation of the twenty-first, twenty-third, twenty-eighth and twenty-ninth Articles of the Declaration of Rights, or any of them, or of the existing provisions or any future provisions of the Code touching the writ of habeas corpus, or proceedings thereunder; for all which enumerated wrongs actions may be maintained by and against execu ¹⁸³ ~tors, as they may he or might have been by and against the party or parties deceased.” In thus amending, or declaring the meaning of