Horace Gray

“ If, in any case of appeal, writ of error or supersedeas, which is now or may hereafter be pending, there be at any time in an appellate court suggested or relied on, in abatement, the death of the party, or any other fact which, if it had occurred after the verdict in an action, would not have prevented judgment being entered as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if the said fact had not occurred. ”

“ The damages recovered cannot exceed $10,000, and are no part of the estate of the deceased, and cannot pass by his will, or be reached by his creditors, but, by the express terms of the statute, are to be distributed to his next of kin as if he died intestate, and are not subject to his debts. These sections, therefore, authorizing the personal representative to bring such an action after the death of the person injured, have no tendency to show an intention of the legislature that the representative may prosecute a common-law action brought by that person in his lifetime. ”

“ There being no error, of which advantage can be taken at this stage of the case, affecting the jurisdiction of the circuit court of the United States, the next matter to be considered is the defendant's motion to dismiss the writ of error, as having abated by the death of the original plaintiff, because it was an action to recover damages for a personal injury. ”

“ The right of action thus given although for the same act or neglect for which the person injured would have had a right of action in his lifetime, differs from an action brought by him, both in the ground on which it proceeds, and in the award of damages. It is not a common-law action to recover damages for the injuries suffered by him while he lived, but it is an action given by statute for causing his death. ”

“ The only case of a personal injury, for which an action might have been brought by a person in his lifetime, in which the Code of West Virginia authorizes an action to be brought by his personal representative, is that of a wrongful act, neglect, or default, causing death, in which case chapter 103, entitled 'Of Actions for Injuries,' provides in sections 5 and 6, following the English statute of 9 & 10 Vict. ”

“ But at a subsequent term, or if the office judgment had been confirmed by the court, or the writ of inquiry executed, he could not, without leave of court, file any plea whatever. A plea to the jurisdiction, or in abatement, if it could have been filed after the common order or conditional judgment in the clerk's office, certainly could not be filed, without special leave of the court, after the office judgment confirming that order, and therefore, in this case, upon the most liberal construction possible, not after the April rules. Code W. Va. c. ”

“ These provisions are copied from the Code of Virginia of 1849, c. 130, §§ 19, 20, and approximately, though not exactly, adopt the rule of the common law that a personal action dies with the person, as modified by the English statutes of 4 Edw. III. c. 7, and 3 & 4 Wm. IV. c. 42, § 2. Williams, Ex'rs, pt. 2, bk. 3, c. 1, § 1. In Virginia and West Virginia, except as specified in their own statutes, no action of tort can be maintained by or against the executor or administrator of the person to or by whom the wrong was done. ”