
    Deming v. Taylor.
    In ⅛⅜ 'Court'below,
    ■ JtrLru&©BafiN.<5, and |@SsRitIuTjíAN'r.'executbrs olLynde ■ Lord, 'Eáq.: jPhiintiffiitt- RUyJÍ> ¶⅛⅝¾⅝⅜fJíefdridanl.^
    
    An action on die ease, fbr expences incurred, in defending against a groundless suit, cannot be maintained by tiie executor of such defend ant.
    TPHIS was an action cn the case, stating, drat Taylor , brought,his action against. Lord,', as sheriff,. declaring,.that one Gunn was committed to gaol, upon an execution in favor of Taylor, and that Lord suffered Gunn, freely and.voluntarily.to,,go. -at,Targe,,,and escape froto prison,, against the will of Taylor, Lord pleaded, and the. Court that Taylor consented, that Giran should denart from prison ; and judgment was rendered for Lord. The plaintiffs alleged, that Taylor secretly, and unknown to Lord, permitted, and procured Gunn to leave the prison, to compel Lord to pay the debt; and Lord, in employing counsel, and procuring evidence, necessarily expended a large sunt, above the costs he recovered.
    1804.
    To this declaration, the defendant, in the County-Court, pleaded in abatement, that he had not been benefited, nor the assets of Lord injured, by said wrong, for the expences of the suit were borne by one Reuben Webster, and the right of action died with Lord. The plaintiffs traversed that the expences of the suit were borne by Websterto which there was a demurrer, The County Court rendered judgment that the replication was sufficient. That judgment was reversed in the Superior Court.
    
      Gould\ for the plaintiffs in error.
    The statute de bonis asportatis has been construed liberally. It has been constnirdto extend to administrators, as well as executors ; to goods converted as well as to goods carried away. ■ An executor mat-' maintain an action of ejectment for a chattel real, or a suit against a sheriff, for a -false return, or for an escape, although the escape happened in the life of the testator,  So he may maintain trover for goods converted in the life of the testator ;  so for trespass upon property, 
    
    The common law maxim, that actio personalis vioritur 
      
      cum personé, is not even generally true, says Lord Mansfield, in the celebrated case of Harnbhj v. Trotl. 
       R¿cause an action fo: such an injury would not lie against an executor of a person deceased, it does not follow, that an action will not lie in favor of an executor, in the one ease, the only question is, lias the assets of the tie-ceased been benefited; in the other, has the property of the deceased been injured? And whether the injury was done, during the life of the testator, or not, is of no importance, so that the suit be against the original wrong doer, not. against his executor. Th - maxim, as applied to an executor plaintiff, is confined to injuries done to the person of the testator, as assaults, imprisonment, slander, adultery, &c. 
    
    In this case, have not the assets of sheriff Lord been injured ? We complain only of the injury to his property. IIis personal liberte and security were not violated. We do not complain of the injury as vexatious merely, but as having occasioned expense; and expence has been considered as a good ground of action, 
    
    
      Daggett, ar.d Sterling, for the defendant in error.
    The rule of the common law, that personal actions die with the person, is admitted. The question now is as to the applicability of that rule, or as to the gist of an action for a malicious prosecution. The gist of such an action may be determined by the statement required in the declaration. It is necessary to state something besides a loss of property. The ground may be merely the danger of imprisonment; and the plaintiff may recover, though he has not paid a cent. As in actions of slander, or the Court will precuaie damage, so in this action ex-pence wjj] ⅛,⅜ presumed. It is no justification in an action. for a malicious prosecution, that the plaintiff had paid nothing, or that his reputation or person was not injured. But the Court would say, that it was, per sc, evidence of damage, and the expence might he taken into consideration to encreast the damages.
    Because Justice Blackstone remarks, that actions fqr slander, false imprisonment, &c. do not survive to the executor, it does not follow, that all others do survive. These are mentioned only byway of example.
    The injury here, if any, was merely to the person, and the expence is consequential to that injury. The action cannot;, therefore, survive.
    The cases cited by the Counsel for the plaintiff, are cases, where the person of the testator is not effected, but only the property, as for escape, &c. In Griswold v. Broxun, the action regarded property only, and a rule of damages was givem ‘ There, too, the deceased recovered judgment before his cleaA, and Ae case in this Court was upon a petition for a new trial. The right of executors extends only to property. If they had omitted to bring this suit, they would not have been liable on Aeir bond. They can recover only where a specific rule of damages is given, not where the jury may give vindictive damages:; for it is unjust, that they, who are accountable only for the personal property, should recover more than the damage done to that property.
    In such cases, out legislature have allowed threefold the damage sustained ; and can the court sever these damages, and say, part is given for the injury done to the person, and part for the injury to the property ? Wherever the damages are presumptive, the action dies with the person. Wherever the gravamen is an injury to the per non, the action dies with that person. If a declaration would have been good without stating the ex-pence incurred, the stating of that expence cannot vary the nature of the action. Besides, in this declaration, neb ther malice, nor want of probable cause is stated, which mast always be stated in suits c-f this kind.
    
      Gould in reply.
    The action for malicious prosecution may be brought for an injury to the reputation, to personal security, or personal liberty, or for experice only. The gist of the action is compounded of the wrong, and the subsequent injury. The gist of this action is the expence. In actions for slander of title, and for words not actionable in themselves, there must be a per quod, shewing how the party has been injured. There, the gravamen comes under the per quod. Here, the fraudulent design, followed by the expence, is the ground of action.
    It is said, that die cases cited are those where property only is concerned. Such, it is contended, is this ease.
    It is objected, that vindictive damages may be given. But such damages can no more he given in this case, than in an action of trover, or an action for fraud, where damages may be given to the amount of the property.
    
      Griswold v. Broun: is said to be a petition lor a new trial. But after that petition was granted, the case was «gain tried on-.the merits.
    
      It is objected, that no malice is alleged. But any improper or wicked motives are considered malicious in our law ; and improper motives are surely alleged in this declaration.
    It is said, want of probable cause is not alleged. That is necessary in actions for malicious prosecutions, but not in those founded on civil suits. In actions for maliciously holding to bail, or for suing before a court, which had no jurisdiction, it would be ridiculous, as well as nugatory, to say, that the party had no probable cause.
    In this case, the declaration would not be good, without the per quod, stating the injury to the property.
    
      
       4 Mod. 403, Williams v. Carey. 1 Salk. 12. s. c. Pop. 189* Lemmons and Dickson's case. 4 Perm Pep. 280, Cockcrillv. ISynaston.
      
    
    
      
      
         Psp. Big, 578.
    
    
      
      
        Griswold r. J3rcvms ante 180.
    
    
      
      
         L'owp. SU.
      
    
    
      
       3 Bla. Cam,. 302. - Co-mp. 372.
      
    
    
      
      
        Dig. 523. 1 Salí. 13, Savilte v. Roberts. 1 Stra, 631, C-gr.m S\ks 379. ■ 10 Med. 143:
    
   By THE COURT,

The judgment was affirmed.  