Howcott v. Warren. the principle is altered. The party injured has no right to his common law remedy, unless the annual injury he sustains is to the amount of $20, and it has directed in what manner the injury shall be ascertained. The common law remedy, therefore, is not abolished in such cases, it is but suspended. His Honor decided the plaintiff could not sustain his petition. because the injury complained of was committed in the life time of the testator. If this be so, then injury of this kind can be redressed only by the person sustaining it. The heirs cannot complain of damages done to the estate before it became theirs. Suppose the action had been brought by the testator himself, and had continued in Court several years, so that the injury had amounted to a destruction of the property: as by destroying a valuable meadow for instance, thereby depriving the plaintiff of its entire use, and the plaintiff had died a short time before the trial; according to the opinion of the Court below, the cause would abate, as it could not be revived by the executor. For if the action cannot in the first instance be brought by him, neither will it survive to him when already commenced. We do not agree with his Honor. At common law, all personal actions to recover damages for injuries to property, real, or personal, or to the person, died with the person inflicting or sustaining the injury, and so the law is still, as to the last; but as to the two former, it has long been altered by Statutes in England and in this State. Thus the three statutes of the 4th, 25th, and 31st of Edward the third-give to executors and administrators, and the executors of executors, the same remedies for injuries to the personal estate of the testator or intestate committed in his life time, as the deceased himself might have had; and the statute the 3rd and 4th, William the third, chapter 42, extends the like remedy to his representative, when the injury has been done to land. All these statutes are in force in this State, and are embodied in the 37th sec. of Howcott v. Warren. the 46th ch. of the Revised Statutes. The language of the act is, that executors and administrators shall have actions, in like manner as the testator or intestate might have had, for goods taken, &c. " and for injuries done to the property of said testator or intestate, either real or personal, when such injury was sustained in the life time of such testator or intestate," &c. It is not denied but that the testator, Howcott, could have filed his petition, in like manner as the plaintiff, his executor, has. Another reason assigned in the case, why the plaintiff cannot maintain his plaint is, that the object of the act, was the protection of the owners of mills, and that when the injury is past, as in this case, no such protection is necessary, and the act does not apply. If the case is not provided for by the act, the common law remedy remains in full force, and if the plaintiff is not driven to this preliminary enquiry, he can immediately, as we have shewn, bring his action on the case. So that the protection of the owner is entirely removed, because the protection meant, must be from the action at law. In Gillett v. Jones, and several previous cases, it was held, upon the policy of the act, that it embraced all cases for injuries from mills; and that has been since modified, only so far as it is declared in Waddy v. Johnson, 5 Ired. 333, that it does not apply to an injury to health only, where there is no overflowing of the plaintiff's land. With that exception, the action at common law, is superseded by this remedy; and, we hold, that it will lie, wherever the action on the case would, for which it is substituted. We are of opinion that there was error in dimissing the petition. PER CURIAM. Judgment reversed. Howcott v. Warren. the principle is altered. The party injured has no right to his common law remedy, unless the annual injury he sustains is to the amount of $20, and it has directed in what manner the injury shall be ascertained. The common law remedy, therefore, is not abolished in such cases, it is but suspended. His Honor decided the plaintiff could not sustain his petition, because the injury complained of was committed in the life time of the testator. If this be so, then injury of this kind can be redressed only by the person sustaining it. The heirs cannot complain of damages done to the estate before it became theirs. Suppose the action had been brought by the testator himself, and had continued in Court several years, so that the injury had amounted to a destruction of the property: as by destroying a valuable meadow for instance, thereby depriving the plaintiff of its entire use, and the plaintiff had died a short time before the trial; according to the opinion of the Court below, the cause would abate, as it could not be revived by the executor. For if the action cannot in the first instance be brought by him, neither will it survive to him when already commenced. We do not agree with his Honor. At common law, all personal actions to recover damages for injuries to property, real, or personal, or to the person, died with the person inflicting or sustaining the injury, and so the law is still, as to the last; but as to the two former, it has long been altered by Statutes in England and in this State. Thus the three statutes of the 4th, 25th, and 31st of Edward the third-give to executors and administrators, and the executors of executors, the same remedies for injuries to the personal estate of the testator or intestate committed in his life time, as the deceased himself might have had; and the statute the 3rd and 4th, William the third, chapter 42, extends the like remedy to his representative, when the injury has been done to land. All these statutes are in force in this State, and are embodied in the 37th sec. of Howcott v. Warren. the 46th ch. of the Revised Statutes. The language of the act is, that executors and administrators shall have actions, in like manner as the testator or intestate might have had, for goods taken, &c. " and for injuries done to the property of said testator or intestate, either real or personal, when such injury was sustained in the life time of such testator or intestate," &c. It is not denied but that the testator, Howcott, could have filed his petition, in like manner as the plaintiff, his executor, has. Another reason assigned in the case, why the plaintiff cannot maintain his plaint is, that the object of the act, was the protection of the owners of mills, and that when the injury is past, as in this case, no such protection is necessary, and the act does not apply. If the case is not provided for by the act, the common law remedy remains in full force, and if the plaintiff is not driven to this preliminary enquiry, he can immediately, as we have shewn, bring his action on the case. So that the protection of the owner is entirely removed, because the protection meant, must be from the action at law. In Gillett v. Jones, and several previous cases, it was held, upon the policy of the act, that it embraced all cases for injuries from mills; and that has been since modified, only so far as it is declared in Waddy v. Johnson, 5 Ired. 333, that it does not apply to an injury to health only, where there is no overflowing of the plaintiff's land. With that exception, the action at common law, is superseded by this remedy; and, we hold, that it will lie, wherever the action on the case would, for which it is substituted. We are of opinion that there was error in dimissing the petition. PER CURIAM. Judgment reversed. CHARLES R. HOWCOTT'S EX'RS. vs. JAMES COFFIELD'S EX'RS. A remedy by petition, under the Act of Assembly, Rev. Stat. ch. 74, to recover damages for overflowing land by a mill pond, may be had against the executors or administrators of the person who committed the injury. The case of Fellow v. Fulgham, 3 Mur. 254, cited and approved. Appeal from the Superior Court of Law of Chowan County, at the Fall Term, 1846, his Honor Judge PEARSON presiding. This was a proceeding by petition under the Act of Assembly, Rev. Stat. ch. 74, prescribing the mode of recovering damages for the overflowing of land in certain cases by a mill pond. The plaintiffs were the executors of the person, whose land had been overflowed, and the defendants were the executors of him, who, it was alleged, had committed the injury. The Court was of opinion that the proceeding under the act was applicable only to present and continuing injuries, and did not apply to those which were past, and that the proceeding could not be sustained by an executor or against an executor. The Court therefore ordered the proceedings to be dismissed and the plaintiffs appealed. Heath, for the plaintiffs. A. Moore, for the defendants. NASI, J. This case is similar in its foundation to that of the Executors of Howcott against Warren, decided at this Term. It was the opinion of the Court in that case, that the right to file a petition under the act concerning mills, for an injury sustained by the erection of a mill during the life of an individual, survived to his executor or administrator, in like manner as it was possessed by him. The question here is, whether a petition can be brought against the executor of the party committing the injury. The opinion of the presiding Judge was, "that the proceeding under the Act was applicable to present and continuing |