
    Albert F. Stillman vs. Walter Hollenbeck.
    An action of tort for making false answers in an examination under a trustee process ie defeated by the death of the defendant.
    Tort, brought against Jeremiah Osborn in his lifetime, under Gen. Sts. c. 142, for making false answers in his examination in an action in favor of the plaintiff against John Hitchcock, in which Osborn was summoned as trustee. Osborn died after the commencement of the action, and the defendant, who was •the administrator of his estate, was summoned in to defend it; and, objection being made, Rockwell, J. ruled that the action did not survive, and ordered it to be dismissed. The plaintiff alleged exceptions.
    
      J. E. Field, for the plaintiff.
    
      I. Sumner, for the defendant, was not called upon.
   Bigelow, C. J.

The cause of action set out in the declara-

tion is created by statute. Gen. Sts. c. 142, § 14. No provision is made in this section by which the suit can be prosecuted against an executor and administrator in the event of the death of the defendant, nor is it comprehended in the general provision by which certain actions which at common law die with the person are made to survive. Gen. Sts. c. 127, § 1.' Inasmuch as the remedy given by the statute is an action of tort, and the injury which the plaintiff seeks to redress is founded on the malfeasance of a party in taking a false oath, whereby the plaintiff has sustained damages, it would seem to be very clear that the cause of action falls within the reason of the rule by which actions founded on malfeasance or misfeasance are held at common law to die with the person. Exceptions overruled.  