Hawkins's executors v. Glass

4 Ky. 246, 1 Bibb 246, 1808 Ky. LEXIS 204

Opinion

OPINION of the Court, by

Judge Bibb.

— -Glass declared against the executors of John Hawkins incase» for that the said Háwkins, in his lifetime, had agreed to build a new bridge by the side of an old bridge, being a common highway ; and that, before the new bridge was finished or received, the said Hawkins unlawfully loosened and removed the planks and bannisters of the old bridge, being a highway, &c. arid thus erected a nuisance, whereby the plaintiff’s hor3e, escaping from a mill, and attempting to pass over the said old bridge, fell therefrom and was killed, &c. to the plaintiff’s damage, &c. To this declaration the defendant demurred, and the plaintiff joined in demurrer: whereupon the court gave judgment for the plaintiff, and damages were assessed to 115 dollars by the inquest. From which the defendants appealed.

Actio perfonaliS inoriiur cum per» fotia. Cafe forercct-ing a nuiiance aerofs a highway, whereby plaintiff’s horfe in attempting to pafs was killed, does not lie again# executors.

This complaint cannot be said to have arisen, either ex contractu, or quasi ex contractu ; it is of a mere per-, sonal tort, charged against the testator ; and therefore not maintainable against the executors of the wrongdoer. The maxim “ actio persov.alis moritur cum persona,” applies. The judgment on demurrer ought to have been given for the demurrant.

Judgment reversed.