Whether it be a reasonable Law that actions should die with the person?
THe rule is Actio moritur cum persona; now what those a∣ctions
Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.
About this Item
- Title
- Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.
- Author
- March, John, 1612-1657.
- Publication
- London :: Printed by Will. Bentley, for Francis Eglesfield, at the Marygold in S. Pauls Church-yard,
- 1651.
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- Subject terms
- Law -- England -- Early works to 1800.
- Cite this Item
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"Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister." In the digital collection Early English Books Online. https://name.umdl.umich.edu/A89519.0001.001. University of Michigan Library Digital Collections. Accessed May 16, 2024.
Pages
Page 135
are that shall die with the per∣son is the thing to be inquired into, and first negatively, Quicquid oritur ex contractu vel conventione non mo∣ritur cum persona, whatsoever arises by way of Covenant or contract doth not die with the person. Affir∣matively all actions that are said in Law to be meerly personal, as Tres∣pas, debts upon simple contract, Bat∣tery, Words, Debts upon an escape against a Keeper of a prison, &c. and such in Law die with the person, and no action can be brought against the Executors.
This seems to me to be a very hard Law, and a failer of Justice, that I should suffer against Law, and that the death of him that doth the wrong, there being no Act or default in me, should take away my remedy.
It is true that the Law in case of a Bond, Covenant, or the like, binds
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the Executor, though he be not named; and what is the reason? be∣cause the Executor represents the person of the Testator; why then, upon the same reason, should not a personal tort of the Testators, as well bind the Executor?
Besides, it is a rule in Law, that the Act of God, (as it is here in case of death) shall prejudice no man; why then in such case should it take away my action?
Again, there is another rule in Law, that Lex non debet deficere conqueren∣tibus in Justitia exhibenda; the Law ought not to be defective in exhi∣biting Justice to complainants. But in this case, the Law is defective in justice, if the inevitable fate of death shall take away my action.
There is likewise another rule in Law, that Lex nulli facit injuriam, the Law injures no man; but I say in
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this case, it injures me, if it deprives me of my action by the death of the person. In Fine, where ever there is a damage, there ought, in reason, to be a satisfaction for it, which ought not to be taken away or otherwise discharged, but by my Act that am damnified, which I submit to judge∣ment. The next thing that I shall debate, is concerning Paine fort & dure, and in that propound this que∣stion.