Kennerly v. Wilson

The opinion of the court was expressed by Mason, J. This is an action of trespass quare clausum fregit, brought by the appellant, as executrix of Caleb Kennerly, against the appellee, to recover damages for a trespass committed on the ¹⁰⁷ lands of the plaintiff’s testator in his life time. No question is raised by the pleadings or evidence involving the title or possession of the testator at the time the alleged trespass was committed, and we are therefore to regard the testator’s right to sue at the time of his death, as unimpeached. If the plaintiff can recover in this action at all, she must of necessity recover upon the strength of the title and possession of her testator, for by virtue of her privileges and powers as executrix, alone, she can claim neither. The question then submitted to our consideration is, did the right of action survive to the executrix, the plaintiff in the present case?

By our act of Assembly of 1798, ch. 101, sub-ch. 8, sec. 5, it is provided, that “executors and administrators shall have full power and authority to commence and prosecute any personal action whatever, in law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander and for injuries or torts done to the person. And the act of 1801, ch. 74, sec. 38, provides, that no action of trespass quare clausum fregit, shall abate by the death of either party, but that the same shall be continued by the representative of the deceased. The books upon pleading divide the different actions at law, into three classes, viz: real, personal and mixed. Suits for damages for injury to real property, are classed among the “personal actions.” If therefore the language of the act of 1798 is to be construed strictly, the present cause of action, is in expressed terms, embrac in that law, and made to survive to the executor or administrator.

But it has been urged that the words “personal action,” are not to be taken in their technical, strict sense, but are to be regarded as giving the right to executors and administrators, only to bring and prosecute suits relating to the personal property of the deceased. By the statute 4 Edw., 3 , ch. 7, and the decisions upon that statute, this was the law in Maryland previous to the act of 1798, and that act, if the view taken by the appellee be correct, was but a mere re-enactment of a law already in force. We cannot attribute to the legislature any ¹⁰⁸ such design, but must suppose they intended to give a different or literal meaning to the language they employed. If this act was to relate only to suits respecting the personal property, we are at a loss to find a reason, why actions of slander and assault and battery were excepted from its provisions.

If the construction contended for be the correct one, then two actions would have been by implication excepted, as well as the action of trespass q, c. f. If on the other hand an express exception was necessary to exclude the two, (slander and assault,) it would have been equally necessary to exclude this action of trespass. If any confirmation of this view be necessary, we think it is to be found in the act of 1801, which provides in