BLAKENEY vs BLAKENEY, 6 Port. 109

COLLIER, C. J. The plaintiff in error, as ad-ministratrix of Alfred Blakeney, deceased, brought an action of trespass quare clausum fregit, against the defendant, in the Circuit Court of Wilcox. On her writ, she indorsed, that the action was brought as well to recover damages, as to try titles. The declaration contains two counts: the first charges, in addition to the breach, entry, &c. of the close of the plaintiff’s intestate, in his hfe-time, that the defendant kept possession thereof, for the sjiace of twelve months, and hindered and prevented the intestate, for that space of time, from occupying the same.

The second count only varies from the first, in alleging the actuai expulsion of the intestate, from the close broken and entered. The declaration concludes, to the damage of the intestate, in his life-time, and to the plaintiff his admi-nistratrix. To each count the defendant demurred, and, his demurrer being sustained, the plaintiff prosecutes a writ of error to this court.. Several points have been made, at the argument, which we deem it unnecessary to consider — and will confine our inquiries to an examination of the question, whether the plaintiff is entitled to maintain the the action she has brought.

It was a principle of the common law, that no action could be maintained, by an executor or administrator, to recover damages for an injury, done either to the person or property of his testator or intestate —the action died with the person — and this principle applied as well where the deceased was the aggressor, as where he was the party injured.

This rule of personalis actio moritur cum persona, received considerable alteration by the statute of 4 Edw. 3 c. 7, entitled de bonis asportaiis, in vita testaioris, the prcam-ble lo which recites, that theretofore, executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators, carried away in their life, so that such trespasses have remained unpunished, and enacts, “ that the executor ■in such cases, shall have an action against the trespassers, and recover their damages in like manner as they whose executors they be, should have had, if they were living.” The remedy given by this act is farther extended to executors of executors, by statute 25 Edw. 3, c. 5, and to administrators by the statute 31 Edw. 3, c. 11.

The statute of 4 Edw. 3, being remedial in its character, has ■ always been liberally expounded in advancement of the object of the legislature; and though the word trespasses only is employed, it has been held to embrace other cases within the intention of the statute.—Emerson vs Emerson; Berwick vs Andrews.

So, by an equitable construction of the statute, it has been determined that the executor or administrator is not restricted in the form of action to be adopted, but may prosecute any, by which an injury to the personal estate of the testator, in his life-time, (which lessens its value,) may be redressed. —Williams vs Carey. And by the equity of the statute, an executor or .administrator may have a guare impedit, for a disturbance in the time of his testator or intestate.

So, the personal representative of a termor may maintain ejectment, where the testator had a lease for years, or from year to year, whether the ouster was before or after the death. —Doe vs Porter. . I have considered thus at length, the exposion of 4 Edw. 3, not because of its direct influence upon the case at bar, but to ascertain whether, by analogy, a construction may be placed upon our statute, which authorises the plaintiff to prosecute her suit.

The act of our legislature, relied upon by the plaintiff, is in these words, — “All actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his, her or their representatives, in the same manner as actions on contracts.” This act, though it changes the common law, is' clearly remedial, and should receive a liberal

interpretation — that is, should be extended beyond the literal import of its terms — if this be necessary to the effectuation of the end it contemplates, and to prevent a failure of the remedy it proposes. To determine the extent of its operation, we must ascertain its obJe<£ . . . , , . .

By its terms, it gives to executors and administrators the right to revive certain actions of trespass, and is entitled, “An act to provide for reviving actions of trespass.” The object, then, to be effected, is the revival of actions brought by a testator or intestate, in the name of a personal representative, and not the commencement of an action de novo. Reasons may have infiur enced the legislature in giving a remedy, in the one case, which it was unwilling to extend," in the other.

In the former, the deceased had himself elected to seek redress, and should his suit abate by his death, his estate would be subjected to costs. In the latter, he had brought no action, and may have intended to waive the wrong. These considerations, it is possible, may have influenced the legislature, in thus limiting the remedy.— Be this as it may, the construction contended for at the bar, cannot be given to it, unless we go, not only ultra the strict letter, but contra the letter also — which is inhibited by every just principle of construction.

The statute of 4 Edw. 3, never extended to execu-' tors of executors or administrators, (though these perhaps were embraced by an enlarged equity) hence, the enactment of the statutes of 25 and 31 Ed. 3. And our act, passed professedly to authorise the revival of actions, can not be held to give an authority to maintain an action originally; this would be, not to promote the intention of the legislature, but to go quite beyond it.

The statute 'of the 4 Edw. 3, was enacted to afford a remedy in favor of an executor, by an original action for a wrong done to the personal estate of the testator in his life-time, and it has been rightfully determined, that it authorised any action, by which the injury to the personal estate could be repaired, on the ground, that they came within the equity of the statute. To construe a statute according to its equity, is nothing more than to give effect to it, according to the intention of the law-makers, as indicated by its terms and purposes.

Hence, it may either be extended or restrained, by an equitable construction; and it is held, that a case out of the mischief intended to be remedied by a statute, shall be construed to be out of the purview, though it be within the words of the statute. The intention of the act being so clearly manifested in its body, we scarcely deem it necessary to call in aid its title, which speaks with clearness its end. The title of a statute, we are aware, is an unsafe criterion, by which to determine its meaning; yet, in cases where the intent is not plain, it may slightly assist in removing' ambiguities.

To conclude — the case before us, is one for which the legislature have failed to provide a remedy — perhaps designedly — -but, whether this be so or not, we have no power to supply the omission ; and, instead of extending the statute to embrace grievances not within its purview, we think it safer to say, in regard to such cases, with Mr Justice Heath, “ The legislature is always at handand if it be thought wise to give the remedy, its powers are ample.

We have considered this case, as it was considered at the argument, an action to recover damages, only: and, were it taken, as indicated by the indorsement on the writ, to be an action to try titles, the result would not be different. The personal representative of a termor, for an ouster in his own time, may have an action; but such is not the present. Our conclusion is, the plaintiff is not entitled to an action, — and the judgment is consequently affirmed. Sir W. Jones's Rep. 174. 2 Ld. Rayra. 974. Lateh, 168. 4 Mod. R.403; 2 Bac. Ab. 445. 1 Wms. Ex. 513. 3 Term Rep. 13. Aik. Dig. 1st ed. 360. Aik.

Dig. p. 17, no. 16. Dwarris on Stat. 724—9th vol. Law Lib.