Actio personalis moritur cum persona

SUBMITTED BY:

BarkhaShravaniSahu

PRN: 16010324313

DIV: D CLASS: BBA.LLB

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune

In:OCTOBER,2016

Under the guidance of:

M.V. CHANDRAMATHI
 C E R T I F I C AT E

The Project entitled Actiopersonalismoritur cum persona

submitted to the Symbiosis Law School, Hyderabad for Law of

Torts, MV Accident and Consumer Protection Laws I as part of
Internal assessment is based on my original work carried out
under the guidance of M.V. CHANDRAMATHI from 25-07-
2016to2-10-2016. The research work has not been submitted
elsewhere for award of any degree.

The material borrowed from other sources and incorporated in

the thesis has been duly acknowledged.

I understand that I myself could be held responsible and

accountable for plagiarism, if any, detected later on.

Signature of the candidate:

BarkhaSharavniSahu

Date:2-10-2016
 Acknowledgement
I would like to express my heartfull gratitude to the
Director Dr. MI Baig and Dy. Director Dr. Sukhvinder
Singh Dari and authority of Symbiosis law School,
Hyderabad for giving me an opportunity to work on a
project in law of torts. I am also highly indebted for the
constant guidance and support given to me by M.V.
CHANDRAMATHI without which this project would not
have been a successful one.Lot of help has been taken
from the library and the web for gathering
information.Last but not the least I would also like to
thank my friends GauravjeetSokhi and
BhagyashreeChauhan without whome this project could
not have been completed on time.
TABLE OF CONTENT
INTRODUCTION
EXPLATION
ORIGIN OF MAXIM
CASE STUDY
CONCLUSION
BIBLOGRAPHY
 INTRODUCTION

"Actiopersonalismoritur cum persona" implies"A

personal right of action dies with the person".

This maxim relates to the end of liability of a person on

his death.

The personal representatives of the deceased can always

sue for the recovery of debts due to the deceased,but he
cannot sue for the breaches which caused mere
personal injuries on nthe deceased.

The personal representatives have a limited liable ,so far

as they have assets on all the covenants and contracts of
the deceased executed in his lifetime.The action for debt
on simple contract,except for rent cannot be
maintainable against the deceased.

As soon as death occurs,the law divests the property

right from the deceased and vests it on the personal
representative.

No action will lie against the dead persons if the injury

done by him to another is capable only of attracting the
claim for unliquidated damages.

ACTIO PERSONALIS MIORITUR CUM PERSONA. That a

personal action dies with the person, is an ancient and
uncontested maxim. But the term personal action,
requires explanation. In a large sense all actions except
those for the recovery of real property may be called
personal. This definition would include contracts for the
payment of money, which never were supposed to die
with the person.

2. The maxim must therefore be taken in a more

restricted meaning. It extends to all wrongs attended
with actual force, whether the affect the person or
property and to all injuries to the person only, though
without actual force.

3. These statutes received a liberal construction from

the judges, but they do not extend to injuries to the
person of the deceased, nor to his freehold. So that no
action lies by an executor or administrator for an assault
and battery of the deceased, or trespass, vi et armis on
his land, or for slander, because it is merely a personal
injury. Neither do they extend to actions against
executors or administrators for wrongs committed by the
deceased

4. 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.
 ORIGINATION

It has been contended by scholastics Goudys "Two

Ancient Brocards" in "Papers in Legal History" Vinogradoff
(ed.) and Winfield "Course reading of the Law of Tort"
second edn. and recognized by the the comments of
Viscount Simon in "Stewart v. London, Midland and
Scottish Railway Co. 1943 SC (HL) 19 at 26"] that
despite the Latinate structure in which the
recommendation is communicated its causes are less out
of date. It has been portrayed by one Lord Chancellor
(Viscount Simon) as:

...not in reality the source from which an assemblage of

law has been reasoned, however a confounding
expression, surrounded in the gravity of the Latin tongue,
in which the impact of death upon certain individual torts
was incorrectly summed up.

Early legal examinations of the term can be found for

"Pinchon's situation" [(1611) 9 Rep. 86] and
"Hambly v. Trott." [(1776) 1 Cowper 371]
 EFFECT OF THE MAXIM
Some legitimate consequences of an action can survive
the death of the claimant or plaintiff, for example actions
founded in contract law. However, some actions which
are personal to the plaintiff, defamation of his character
by the defendant being one prominent example.
Therefore, such an action, where it relates to the private
character of the plaintiff, comes to an end on his death,
whereas an action for the publication of a false and
malicious statement which causes damage to the
plaintiff's personal estate will survive to the benefit of his
or her personal representatives.

The principle also exists to protect the estate and

executors from liability for strictly personal acts of the
deceased, such as charges for fraud.
 CASE LAWS

1)Baker v Bolton and others; KBD 8 Dec 1808

The plaintiff and his wife had been thrown from the
roof of a coach. The plaintiff sought damages for the
loss of his wifes comfort, fellowship, and
assistance.
Held: The claim failed in part: the jury could only
take into consideration the bruises which the plaintiff
had himself sustained, and the loss of his wifes
society, and the distress of mind he had suffered on
her account, from the time of the accident till the
moment of her dissolution. In a civil Court, the death
of a human being could not be complained of as an
injury; and in this case the damages, as to the
plaintiffs wife, must stop with the period of her
existence.

Cox -v- Ergo Versicherung Ag SC ([2014] WLR(D)

150, WLRD, Bailii, [2014] UKSC 22, Bailii Summary,
SC, UKSC 2012/0225, SC Summary)
2)Smith v Dha
Summary
Defamation CPR 40.7 Death of Claimant
Abatement of Action Power to revive

Facts

In 2010 C sued D over a web posting in a specialist

internet forum for Subara car enthusiasts, many of
whom bought parts through the website, which
alleged that he had tried to initiate a price-fixing
agreement with C. The forum thread in question had
remained on the internet, unknown to C, and had
received some 2000 aggregate non-unique views. D
pleaded defences of qualified privilege and
justification and issued an application that C had
consented to publication of the posting, that there
was no prospect of proving publication online and
that there was no evidence of any damage to C. The
application was heard in October 2012 after a
lengthy period in which C had suffered from acute ill
health and was unable to deal with the litigation. On
7 November 2012, after argument had taken place,
but before judgment was handed down, C died and
his death was reported to the Court. D expressed his
condolences but invited the Court to hand down
judgment even though the cause of action had
abated on the death of C. Cs representatives argued
that the common law principle of actio personalis
moritur cum persona applied and there is no
jurisdiction to revive an abated personal action such
as defamation after the death by any party.

Issue
Whether in a personal action which abates on death
of a litigant there is any jurisdiction to hand down a
reserved judgment

Held
The Court making no order the action having abated:
1. The cause of action in libel abated on the date
that the Claimant died and it becomes defunct and
there was no jurisdiction to revive or continue it in
order to hand down judgment on an argument which
had taken place.
2. CPR 40.7, which abandoned a previous provision
of the Rules of the Supreme Court (RSC Order 42 r.
3(2)) for a judgment to take effect on an earlier
date, was a clear rule: A judgment or order takes
effect from the day when it is given or made, or such
later date as the court may specify. A judgment
cannot be backdated to the date of the relevant
hearing.
3) Henshaw v. Miller, 58 U.S. 17 How. 212 212
(1854):
Henshaw was a citizen of Massachusetts, and
brought an action on the case against Charles E.
Miller, in his lifetime, for fraudulently recommending
one Robinson as worthy of credit, in consequence of
which the plaintiff had incurred considerable loss.
After issue joined upon the plea of not guilty, Miller
died, and on motion of the plaintiff, a scire
facias was issued for the purpose of reviving the suit
against John R. Miller, his executor.
Upon the return of the scire facias, the executor
moved to quash it, when the judges were divided in
opinion whether the action survived the executor or
abated, and the question was certified to this Court.

4) Nurani Jamal And Others vs Naram Srinivasa

Rao And Others on 5 April, 1993

Sri M. Lakshmana Sarma, learned counsel for

the petitioner submitted that the lower Court
dismissed the petition mainly on the ground that the
compensation claimed by the original petitioner in
the main O.P. cannot be said to be loss to the
estate. Therefore, the order of the lower Court is
liable to be set aside. On the other hand, Sri B. V.
Ramamohana Rao, learned counsel for the third
respondent countered this argument and submitted
that the cause of action for recovery of
compensation does not survive after the death of
the original petitioner since the action is purely of a
personal nature. He also submitted that the
common law maxim "actio personalis moritur
cum persona" applies to this case and, therefore,
the action does not survive after the death of the
injured. In the said decision, one Venkateswara Rao
sustained injuries in a motor accident and,
therefore, he filed O.P.149/66 claiming
compensation under S. 110A(1) of the Motor
Vehicles Act.

He died even before the said petition was disposed

of and his wife and children who are his legal
representatives, filed an application to come on
record. As the said application was dismissed by the
Tribunal, the matter was carried in appeal to the
High Court, and the matter came up before A. V.
Krishna Rao, J. who allowed the said appeal. The
learned Judge considered an identical question viz.,
whether the common law maxim 'actio personalis
moritur cum persona' applies and in a well-
considered judgment, held that the cause of action
survives to the legal representatives, if there is loss
to the estate. It would be apt to wrote the following
passage from his judgment.

Sri M. Lakshmana Sarma, learned counsel for the

petitioners also brought to my notice a Division
Bench judgment of Punjab and Haryana, reported in
Joti Ram v. Chaman Lal, , which also followed the
view expressed by Justice A. V. Krishna Rao.
Therefore, it is clear that the action for recovery of
damages for personal injuries will not die with the
death of the injured and the maxim 'actio
personalis moritur cum persona' has no
application where there is loss to the estate of the
deceased.

"In the instant case, undoubtedly the action is

brought by the plaintiff on the foot of a personal
wrong of the deceased 3rd defendant and the 2nd
defendant. Unless it is shown that the estate of the
deceased 3rd defendant wrong-doer was benefited
by the tortious act committed by him, the right to
sue does not survive because the personal action
is said to die with the person."

The learned Judge, therefore, has agreed with the

maxim "actio personalis moritur cum persona",
has application in respect of all personal wrongs,
but he recognized an exception 'where a tort-feasor
is benefited by the wrong done, an action would lie
against the representatives of a wrong-doer'.
Therefore, this decision also does not help the third
respondent.

citations: I (1995) ACC 344, 1994 ACJ

222, AIR 1994 AP 6, 1993 (1) ALT 686
CONCLUSION

This project seems to be analytical in the prospects of the

legal maxim Actio personalis moritur cum persona. After
analyzing the several cases related to liability Actio
personalis moritur cum persona . But there is certain
exception to this general rule.

I have been able to understand how a person is able to

sue and general exceptions in law of torts. So in this
project we recorded few of the legal rights and examined
and analyses it down and went over the lawful activity
that can be practiced in this setting. We consider it with
the help of different case laws stated above to have a
superior thought as the law in India. Henceforth case
laws see such doctrines.

This project was exceptionally useful to me as I gained

information and came to think about things which I dont
know about and helped me scholastically.
BIBLIOGRAPHY:-
www.wikipedia.com

www.e-lawrescource.com

www.lawarticles.com

www.scconline.com

www.manupatra.com

www.indiankanoon.com