Conklin v. Alabama & Vicksburg Railway Co.

81 Miss. 152

Opinion

Calhoon, J.,

delivered the opinion of the court.

The heir could not, nor could the executor or administrator, under the common law, sue at law for damages done by trespass committed during the lifetime of the ancestor on the lands of the ancestor. Broom, Leg. Max., top page 911; Plowd., 142; 2 Saund. Pl. & Ev., 868; 2 Mod., 7; 1 Saund., 216, note 217, note; Barb. Parties, 176; Wilbur v. Gilmore, 21 Pick., 252; Reed v. Railroad Co., 18 Ill., 403. This, being the common law, is still the law, unless changed by statute. It has not, so far as concerns the heir, been changed in this state. Sections 1916, 1917, code 1892, simply give the right to sue to the executor or administrator. They do not give it to the heir. Hence he cannot sue. The case of Marshall v. King, 24 Miss., 85, decides that the distributee cannot recover at law. Equity courts may be invoked in certain states of case, but chancery powers, remedial and protective, are large — such as the requirement of bonds to indemnify, and to restore property to save harmless such persons as premature distribution might injure. Law courts cannot do this. The crucial test in the case before us is that, if recovery were had and the damages paid, and debts of the intestate did develop, the administrator could recover again.

Affirmed.