59 Mass. 543 - Nettleton v. Dinehart — 59 Mass. 543

Samuel M. Nettleton vs. Christopher Dinehart. An action on the case, for a malicious prosecution, does not by law survive in this commonwealth. Ine administrator of a deceased plaintiff may move the court to dismiss the action, on the ground, that the cause thereof does not by law survive. This was an action on the case, for a malicious prosecution; and the plaintiff having deceased, his administrator appeared, and moved to dismiss the action, on the ground, that it did not by law survive. The court of common pleas, in which the action was pending, granted the motion, and the defendant excepted. 0. N. Emerson, for the administrator. 1. Sumner, for the defendant. — Dewey, J. (majority) Dewey, J. At common law, this action clearly would not survive. The only question is, whether it does so by the force and effect of our statute law. The Rev. Sts. c. 93, § 7, do not embrace an action for malicious prosecution. The subsequent statute of 1842, c. 89, approaches much nearer, providing for the survivorship of “actions on the case for damage to the person.” We are, however, of opinion, that this statute had reference to damages to the person of a different character from those arising from the institution of a malicious prosecution. There are various personal injuries, such as those arising from the neglect of towns to keep highways in repair, from the mismanagement of railroad trains, and the like, which very naturally fall within the purview of this statute, and furnish a wide ¿cope for its application, without including the case of a malicious prosecution. A trial of this latter kind may be, and ordinarily must be, a trial of the personal character of the deceased, and his innocence or guilt of some criminal offence. In the opinion of the court, such action does not survive; it was therefore competent for the administrator of the original plaintiff, to move the court to dismiss the action, for that cause, and the motion was properly granted. Exceptions overruled.