and tumultuous assembly. The said J. T. Adam, being a person damnified, within due time complied with all the requisites of the statute 7 & 8 G. 4, c. 31, to entitle himself to maintain his action, and recover full compensation for the damage done to him from the inhabitants of the city of Bristol, and county of the same city, within which the offence was committed: and, on the 20th of January, 1832, he commenced an action upon the case by original writ against the defendants, to recover such compensation. The defendants duly appeared to the action; but, on the 17th of May, 1832, pending the said action, and before verdict or judgment, the said J. T. Adam died, in consequence of which

the action abated.

The plaintiff was the executrix of the said J. T. Adam, and, on the 24th of *391] May, 1832, she, as such *executrix, sued out an original writ against the said defendants, which alleged the suing out of the said writ by the said J. T. Adam in his lifetime, the contents of that writ, and the several facts above stated in this case, and demanded compensation for the damage and injury therein alleged to have been sustained by the said J. T. Adam in his lifetime, and by the plaintiff as his executrix since his death, by means of the aforesaid offence.

The question for the opinion of the Court was, whether the plaintiff was entitled to maintain this action, and to recover therein compensation for the damage done to the said house and warehouse, and by the destruction thereof, as before mentioned.

The case was argued(a) on an earlier day in this term (Friday, November 21.)

Coleridge, Serjt., for the plaintiff. This action is founded on stat. 7 & 8 G. 4, c. 31, which was passed in lieu and extension of many previous acts giving remedies against the hundred. (b) The Riot and Black Acts, 1 G. 1, st. 2, c. 5, ss. 4 and 6, 9 Geo. 1, c. 22, s. 7, and 57 Geo. 3, c. 19, s. 38, were among these; and the enactment of these three acts, were understood to be in the nature of a civil remedy. Thus stat. 1 G. 1, st. 2, c. 5, s. 6, was treated as a remedial act in Ratcliff v. Eden, 2 Cowp. 485; Hyde v. Cogan, 2 Doug. 699; and Wilmot v. Horton, (note [3] to Hyde v. Cogan, 2 Doug. 702), and received a liberal construction accordingly. Buller, J., in Hyde v. Cogan, 2 Doug. 699, *392] insisted *upon its remedial nature, distinguishing the part which related to the remedy against the hundred from the penal part: à fortiori the late act must be liberally construed, for it relates exclusively to the remedy against the hundred, and its object was to extend the remedy. Thus the time for going before the justice is, by s. 3, extended from four days (the time named in stat. 9 G. 1, c. 22, s. 8) to seven and the doubts which had been raised as to the right to recover for furniture (Ratcliffe v. Eden, 2 Cowp. 485; Hyde v. Cogan, 2 Doug. 699), are removed by the second section, which expressly includes "any fixture, furniture, or goods whatever."

Two objections will be made to the right to recover in this case; first, that the action does not lie for executors; secondly, that this action is brought too late.

First. The remedy is given to "the person or persons damnified" (s. 2); but, as the remedy is not for personal injuries, but for injury to property, executors are damnified, the interest being a chattel. The rule, actio personalis moritur cum personâ, was broken in upon by stat. 4 Ed. 3, c. 7, which gives executors a remedy for trespass done to their testators, "as of the goods and chattels of the same testators carried away in their life;" by an equitable construction of which executors may recover, in various forms of action, for injury done to the personal estate; note (1) to Wheatley v. Lane, 1 Wms. Saund. 217; and Le

(a) Before Lord Denman, C. J., Taunton, Patteson, and Williams, Js.

(b) The act which repealed the former statutes from and after the 30th of June, 1827, is 7 & 8 G. 4, c. 27.

Mason v. Dixon, W. Jones, 173, (S. C. Latch, 167, Poph. 189,) there cited; cases in 1 Williams on Executors, p. 511, 512. [TAUNTON, J. An action of debt for not setting out testator's tithes (a) lies for executors.] That is the stronger, *because the parson had no vested right in the tithes till they [*393 were set out. The executor, under stat. 8 Ann., c. 14, s. 1, may sue the sheriff for removing goods in the testator's lifetime without paying the testator a year's rent; Palgrave v. Windham, 1 Str. 212;(b) yet the landlord had no vested right in the goods. Executors are now enabled generally to sue for injuries to the testator's real estate by stat. 3 & 4 W. 4, c. 42, s. 2. That statute passed after the present action accrued, and this is not an action for an injury to the real estate: but if the legislature had considered such an interest as the present to be unprotected, they would have added words to enable executors to sue for injuries to chattel interests of the testator.

Secondly. The defendants will rely upon the words at the end of section 3; "provided also, that no person shall be enabled to bring any such action, unless he shall commence the same within three calendar months after the commission of the offence." This is the second of two provisions in the section: the first relates to the preliminary steps to be taken by the person damnified, or his servant within seven days. It is enough, so far as this first proviso is concerned, that the parties there designated should take the steps: it is not necessary that they should be taken by the plaintiff; so that if the testator, having performed the acts there required, had died on the eighth day, the executor (if the first objection fail) might well have sued within the three months. The second proviso has been complied with; for the testator did bring his action within the three months; although it is true that the present *plaintiff in the action did not do so. But it is enough that the requisite of the [*394

section has been once satisfied, for the section does not create the remedy, but imposes a restriction. This was the construction put upon the statute of limitations (21 Ja. 1, c. 16, s. 3,) in Kinsey v. Heyward, 1 Ld. Raym. 432, 434. There an administratrix sued after the lapse of six years, the intestate having sued in due time, and the action having abated by the death of the plaintiff : and Treby, C. J., in giving judgment, said, "Though this writ is not good to continue the former, and by such means to avoid the statute of limitations, yet the plaintiff here ought to recover, notwithstanding the said statue pleaded. For the statute is, that actions upon the case, &c., shall be sued within the six years, &c. ;(c) and for this reason, where an action is sued within the six years, that seems to be excepted out of the words of the statute; and that if an action is sued within the same time, the party is out of the purview of the act, and at liberty to prosecute the said action or to sue another action at any time not restrained or limited by the statute." The Court there required the fresh action to be commenced in a reasonable time, which they held to be a year. It is true that this judgment was afterwards reversed; but that was because the continuances of the first writ were not shewn, the consequence of which was that nothing appeared to have been done on the first writ for more than five years back. Here the provision which has in view to secure the speedy prosecution of the offenders has been satisfied. The period which the Court, without any express provision in stat. 21 Jac. 1, *c. 16, has allowed for the executor to sue, has been at one time a [*395 year, at another time fourteen months; and now it is settled to be a reasonable time; 2 Williams's Executors (part 5, b. 1, ch. 1,) p. 1156. In Wilcocks v. Huggins, 2 Str. 907, it was said by the Court, "that the most that had ever been allowed was a year, and that within the equity of the proviso (Stat. 21 Jac. 1, c. 16, s. 4,) in the statute, which gives the plaintiff a year to commence a

(a) On stat. 2 & 3 Ed. 6, c. 13, s. 1. See Mr. Justice Moreton's Case, 1 Vent. 30. S. C. 1 Sid. 407, Holl v. Bradford, 1 Sid. 88.

(b) S. C. more fully, as to this point, 9 Vin. Abr. Distress (0.3).

(c) The statute adds, "and not after."

new action, where the judgment is arrested or reversed." And they added, "Indeed if the second executor had been retarded by suits about the will or administration, and he had shewn that in pleading, it would have been otherwise, because then the neglect would have been accounted for." In Lord Middleton v. Forbes and Wife, in Error, Willes, 259, note (c) to Karver v. James, (See Higgins v. Scott, 2 B. & Ad. 413,) it was said that the statute of James did not bar the action, but only took away the remedy; and the Court allowed the plaintiff below to recover, where the original action had been commenced in time, and, the suit having abated by marriage, a new writ was sued out within two terms. It may be also said that, here, the failure of justice which would ensue from holding the words to be an absolute bar, creates a necessity which will justify the Court in expounding the statute so as to give a right of action contrary to the letter of the enactment, even admitting the letter to be against the plaintiff. Instances of such expositions are given in Com. Dig. Parliament, (R. 18.), from the Second Institute. Thus an assize of novel disseisin of a commote in Wales might be taken in the county of Gloucester, though by Magna Charta (9 H. 3, c. 12,) assizes of novel disseisin were not to be taken *396] but in their own shires, (2 Inst. 25): the statute of Merton *(20 H. 3, c. 3,) provides that a redisseisin shall be tried by the first jurors (that is, those who tried the first disseisin) and others; yet, if the first disseisin were not tried by jurors at all, the redisseisin was triable by the others only, (2 Inst. 84): the statute of Marlebridge (52 H. 3, c. 4,) enacts that none shall cause a distress to be driven out of the country where it was taken; yet, if the tenancy be in one county and the manor in another, a distress taken in the tenancy may be driven to the manor, (2 Inst. 106): and though the same statute (c. 22,) enacts that none may cause his freeholders to swear against their wills, yet they may be compelled by distress to swear to inquire for the lord of all the articles belonging to the court baron or hundred, (2 Inst. 142,): and Lord Coke, in pointing out an enlarged interpretation of another part of the same statute (c. 6,) says (2 Inst. 110), "The ancient sages of the law (that I may say it once for all) did ever apply the remedy to the mischief." It may be said that such principles of interpretation are applicable to old statutes only, which were shortly worded; but the application is not confined to them. Thus, in Ethersey v. Jackson, 8 T. R. 255, the plaintiff was allowed to enter a suggestion, and assign breaches on a bond, after issue joined on non est factum; though the statute 8 & 9 W. 3, c. 11, s. 8, provides for such suggestion in cases only of a judgment on demurrer, by confession, or upon nil dicit: and this decision was sanctioned in Johnes v. Johnes, 3 Dow. 14. Here, all that is asked is that the Court will construe the second proviso of sect. 3, as the first must be construed; that is, without requiring that the *party to the present action should be the same party who has performed the condition of commencing an action within the three months.

*397]

Joseph Addison, contrà. First, the executor cannot sue at all. The action at common law, against the party committing the injury, would be trespass quare clausum fregit: and it has never been held that st. 4 Ed. 3, c. 7, was applicable to injuries committed upon the chattels real of the testator. In Emerson v. Emerson, 1 Vent. 187, it was held that an executor might sue for cutting and carrying away growing corn from the testator's freehold, because growing corn was a chattel. No distinction was drawn between freeholds and terms of years but it was admitted that, if the action had been trespass quare clausum fregit, it would not have lain. The cases of ejectment, quare impedit, (a) and ravishment of ward, (b) may appear at first sight to countenance such an extension; but in those actions the damage complained of continues; for in ejectment, the remaining term is recovered; in quare impedit, the presentation;

(a) Wentworth, Exec. ch. vi. p. 164, 14th Jeremy's edition.

(6) Yearb. Hil. 11 H. 4, 54.

in ravishment of ward, a restitution of the ward. (a) With respect to stat. 3 & 4 W. 4, c. 42, s. 2, the recital in that section is, that "there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime." It is observable too that there the remedy is given only where the injury is committed *within six months before the party's death; which, if the section were in other respects applicable to the present case, would bar this plaintiff by length of time.

[*398

Secondly, the action is at all events too late. The decisions on stat. 21 Ja. 1, c. 16, s. 3, are inapplicable. The statute restricted common law rights. Here the right, as well as the restriction, is created by the statute; and, therefore, a party endeavouring to avail himself of the right must shew that he has complied with the statute in all particulars. This rule has been applied, even where one statute creates the right, and a subsequent one the restriction. The limitations imposed by stat. 31 Eliz. c. 5, s. 5, as to the time of bringing penal actions, furnish an instance. The distinction between the decisions on that act and stat. 21 Jac. 1, c. 16, s. 3, is thus explained by Serjeant Williams.(6) "The reason given in 1 Levinz 110, Lee v. Rogers," (for the necessity of pleading the statute of limitations)" that the statute was made for the ease of those who will take advantage of it, and the Court will not give a defendant the advantage of it unless he pleads it, though true as a proposition of law, does not appear to be satisfactory. Perhaps the true ground of distinction between the statute of limitations, and the statute 31 Eliz. and other statutes limiting penal actions to a definite period, may be this; the former statute limits those actions, where a debt or other cause of action is already vested in the plaintiff by means of some contract, or other transaction, between the plaintiff and defendant, prior to the bringing of the action; but in penal actions, the duty or right of action attaches in the *plaintiff merely by bringing the action, and did not exist in him before." [*399 A better ground of the distinction seems to be that, where a statute gives a right of action, the party suing must bring himself within the statutory provisions on the subject. The doctrine that a reasonable time was to be allowed to an executor to bring his action, under stat. 21 Ja. 1, c. 16, was founded on an equitable enlargement of the fourth section, which allows to the plaintiff, his heirs, executors, or adminis trators, a year for commencing a new action, after a reversal, or arrest, of judg ment, of reversal of an outlawry of the defendant. If compliance with the statute in the first instance were enough, the fourth section would have been unnecessary. The judgment in Kinsey v. Heyward, 1 Ld. Raym. 432, was reversed. [TAUNTON, J. The reversal was not on the point cited here for the plaintiff.] In Wilcocks v. Huggins, 2 Str. 907, there is only a dictum for the point now urged, judgment having been given for the defendant. In Gargrave v. Every(c) the statute of limitations was pleaded to an action by an executor, who replied that the defendant had promised within six years of an original sued out by the testator, which had abated by his death; and the replication was held ill on the demurrer. [PATTESON, J. Fourteen months appear to have been allowed to the executor in Lethbridge v. Chapman.(d)]

The enlarged applications of the ancient statutes supply no analogy here. Lord Ellenborough, in *Wilson v. Knubley, 7 East, 134, speaking of the equitable construction put on stat. 4 Ed. 3, c. 7, says, "That, it must [*400 be remembered, is a very ancient statute, passed at a period when no great pre

(a) See 2 Inst. 90, 437, 439, 440. If the ward was married before the plaintiff could recover him, the plaintiff recovered the value of the marriage. See judgments in Townesend's Second Book of Judgments, 147, tit. Gard. (6), (7).

(b) 2 Wms. Saund. 63 (a); note 6 to Hodsden v. Harridge.

(e) 1 Lutw. 261, cited, 15 Vin. Abr. Limitation, (A.) pl. 8. p. 103. It does not appear that the record in this case shewed how soon after the testator's death the executrix commenced her action.

(d) Cited in Fitzgib. 171, 15 Vin. Abr. Limitation, (A.) pl. 8, p. 103.

cision of language prevailed." More modern statutes have been strictly construed; st. 23 H. 8, c. 15, s. 1, and st. 4 Ja. 1, c. 3, s. 2, though they appear to give costs to defendants generally, have not been applied to cases where the plaintiffs necessarily sue in their representative characters. Tidd's Pr. 978, 981, (9th ed.) The stat. 3 G. 2, c. 25, s. 15, enables the Courts at Westminster to grant a special jury on any issue joined in any action depending before them; yet it is not granted upon a writ of inquiry. Stat. 6 G. 4, c. 50, s. 34, enabling a judge to certify after verdict for the costs of a special jury, was not applicable to cases of nonsuit.(a) In Webb v. Jiggs, 4 M. & S. 113, it was held, that stat. 8 Ann. c. 14, s. 4, which gives an action of debt for arrears of rent, "due upon any lease or demise for life or lives," does not apply to the arrears of an annuity or yearly rent created by devise, payable out of land by, and during the life of, one to whom the land is devised for life. In Brandling v. Barrington, 6 B. & C. 467, it was held that stat. 8 Ann. c. 14, s. 1, which directs the sheriff upon goods being taken " by virtue of any execution, on any pretence whatsoever," to pay a year's rent to the landlord, did not apply to a case of seizure by virtue of a writ of pone per vadios from the Court of Pleas at Durham, where the goods, being forfeited to the bishop on default of the owner, *401] were by the bishop assigned to the party who sued out the writ, in satisfaction of his damage; and Lord Tenterden said, "I cannot forbear observing, that I think there is always danger in giving effect to what is called the equity of a statute, and that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them."

Coleridge, Serjt., in reply. Executors may sue for a trespass to a chattel real of the testator; ejectment is, in principle, a trespass of that sort; Peytoe's case, 9 Rep. 77, b., and Year-book, Hil. 7 H. 4, 6, there cited, 78, b.: and other instances are given in 1 Williams on Executors, 513.(b) The question is, whether the executor gets a less beneficial estate in consequence of the injury. It is a fallacy to assume that the remedy against the hundred was created by statute: there was originally a civil remedy against the actual wrongdoers at common law; then, when the wrongful act was made a felony, the civil remedy was modified into the present shape. These two purposes are effected by the two acts passed in the same session, 7 & 8 G. 4, c. 30, and c. 31; which acts should be considered as a single enactment. It is argued, that a single proceeding within the time limited by stat. 21 Jac. 1, c. 16, s. 3, was not enough to satisfy the act, because otherwise the fourth section of that act would have been unnecessary: but the object of the fourth section was to provide for *4021 particular cases in which a *final judgment had been given against the plaintiff; it had no reference to cases where the first writ had abated. In Knight v. Bate, 2 Cowp. 738, Lord Mansfield seemed to consider that, where a private act limited a right of action to six months, and a party commenced it in time, but the action abated by the defendant's death, the plaintiff might revive it against the heir within the six months. Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. Two questions arise in this case. First, Whether the executor of a termor for years can in any case maintain an action upon the statute 7 & 8 Geo. 4, c. 31, s. 2, for an injury to the premises under lease sustained in the lifetime of his testator; secondly, Whether, if such action be duly commenced and prosecuted by the termor, and abate by his death more than three calendar months after the offence committed, his executor can bring a fresh action.

As we are all of opinion that the defendants are entitled to our judgment on the second question, it is unnecessary to consider the first.

(a) Wood v. Grimwood, 10 B. & C. 699. But now, by stat. 3 & 4 W. 4, c. 42, s. 35, the power is extended to cases of nonsuit.

(b) Part ii. b. 3, ch. 1, s. 1; Slade's case, 4 Rep. 95, a; and Doe dem. Shore v. Porter, 3 T. R. 13, are cited.