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ACTIO PERSONALIS MIORITUR CUM PERSONA

Latin for: 'A personal action dies with the person.'

This is an ancient and generally accepted maxim, but the term personal action requires explanation. In the broadest sense all actions except those for the recovery of real property may be called personal. However, this definition would include things like contracts for the payment of money which never were supposed to die with the person.

It extends to all wrongs attended with actual force, whether they affect the person or property, and to all injuries to the person only, though without actual force. At least this originally was the common law, but alterations were made long ago by English statutes including ones which gave an action to an executor for an injury done to the personal property of his testator in his lifetime, later extended to the executor of an executor and giving administrators the same remedy as executors.

However, given such old and new statutory expansions along with modern developments in tort law and liability, the maxim must, like so many others, be viewed more restrictively than its bare words indicate.

The statutes and other changes, though often liberally interpreted, generally do not extend to injuries to the person of the deceased or his freehold, so that no action lies by an executor or administrator for an assault and battery on the deceased, trespass on his exclusively held land, or for such things as slander, because such are personal injuries. Neither do they extend to actions against executors or administrators for wrongs committed by the deceased.

Assumpsit may be maintained by executors or administrators in those cases where an injury has been done to the personal property of the deceased and he might in his lifetime have waived the tort and sued in assumpsit. However actions such as for a breach of a promise of marriage cannot be maintained by an executor unless, perhaps, where the plaintiff's testator sustained special damages.

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