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legal_language:actio_personalis_moritur_cum_persona_-_noy_max._14

Actio personalis moritur cum persona

A personal right of action dies with the person.

The personal right of action intended by this maxim is that right of action which a person has for some wrong done to his person, or, which one has against another for breach of contract to do some personal service, that is, service depending upon personal skill ; and, strictly speaking, it is in tort only, and not in contract. Where, however, the right of action arises ont of injury to the personal property of the person dying, the maxim does not apply, and his personal representatives may therefore sue in respect of such right of action ; as, for breaches of contracts which are an injury to his personal estate ; bond and other debts, and, indeed, all contracts not coming within the meaning of a personal right of action arising out of the breach of a personal contract as above defined. For instance, when a vendor omits to make out a good title within a time stipulated by the contract of sale, and the vendee dies, his executors may sue for damage incurred by loss of interest on the deposit money and the expense of investigating the title. So the executor of a tenant for life may recover for the breach of a covenant to repair committed by the lessee of the testator in his lifetime.

Statutory provision has also been recently made for the recovery within a limited period after the death of the person whose property is injured, of compensation for injury to real property committed within a limited period before the death of such person, and also more recently, for compensation in case of death by the wrongful act, neglect, or default of another, where the act, neglect, or default is such as, if death had not ensued, the party dying would have been entitled to maintain an action for damages in respect thereof, and in which case also, as in that first mentioned, the action must be brought within a limited time after the death in respect of which the action is brought. A recent case shows that this maxim is not rendered inoperative by the Common Law Procedure Act 1852, by which Act, on the death of a plaintiff, his representatives may, by entering a suggestion, proceed with the action ; but that, on the death of a plaintiff, during the progress of an action for personal injury, his representatives cannot proceed with the action ; that Act only applying to those cases where, before the Act, the cause of action would have survived to the personal representative, and he could have commenced an action in his representative capacity. Formerly, where damage of a temporary nature, and accruing wholly in the lifetime of the testator, was done to real property, neither the heir nor personal representative could sue in respect of it : the heir, because it was personal estate, and the personal representative by reason of this maxim, but how this inconvenience is remedied by statute as before mentioned. So, also, executors could not sue in respect of any detention or conversion of the personal property of the testator in his life- time, but that was remedied also by statute.

With the exception of the instance above mentioned resulting in the death of the party, the rule in strictness still applies, and no action can be maintained by the personal representatives of the deceased in respect of a strictly personal tortious right of action ; as, for assault, false imprisonment, or other personal injury, libel, negligence, etc.

The right which a husband has to the choses in action of his wife, may properly be considered within this rule as being a personal right of action dying with him, and which, if not reduced into possession during coverture, survives to the wife.


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Created on 2020/10/19 23:14 by • Last modified on 2021/02/03 07:38 by LawPage