Bridgman oh sander v PLUMMER No report of this case in print f h a TR car two  roll the roll of this year be not yet place in its proper niche after the  removal of the record in Westminster hall b a innkeeper be liable to the  administrator of a intestate for the loss of the intestate Bridgman oh er p  horse while in his care there be a contract or assumpsit in law between the  innkeeper and the guest the injury suffer be not a tort only hark ms No fol  Bridgman c j sander administrator of sander bring a action of the case against  whether plummer a common innkeeper for negligent keep the intestate gelding  whereby he be steal upon a issue that the horse be put to grass at the request  of the intestate it be find for the plaintiff and it be move in arrest of  judgement that the action lie not by a executor the action for this negligence  die with the plaintiff and it be argue twice of each side at the bar I be of  opinion that the action will lie whether by the commonlaw or by the equity of  the statute e c may be considerable but if by either it be for the plaintiff  at the commonlaw a action of trespass or the like permanent action ground upon  a injury do or of waste noritur cum mask if the person die against who the  injury be commit his executor can not have the action as appear express by the  recital of the statute e c yet in the statute of waste e the case appear to be  that gawen butler bring a action of waste against Walter de Stapleton for  waste do in land which he hold of he for life and die William his brother and  heir bring a due writ and the defendant plead that be ought not to answer he  for waste do in the time of his brother the judge do not agree in give  judgement because it seem to some of they that it shall not be agreeable to  law that any man shall obtain advantage and recovery due by writ which be a  writ of trespass do to a person certain but only the same person to who and in  who time the trespass be do other justice with the more part of the king  counsel be in the contrary opinion allege that the say William ought to be  hear and answer unto and all other whatsoever they Bridgman oh be in like case  or ill like trespass and because like matter have remain not amend and  trespass unpunished which be inconvenient wherefore the king in his full  parliament by a general council have ordain and from henceforth command to be  strict observe that every heir shall have his recovery by writ of waste in the  aforesaid case and it be command to Gilbert Thornton and his companion assign  to bear the king plead that they proceed in the aforesaid matter and in other  like from henceforth and judgement shall be give accord as the matter be find  it seem by this statute there be diversity of opinion whether in such personal  tort the action survive or not and that statute seem to enforce that they  shall survive but the law have be take to the contrary since that time in that  very case of waste the heir can bring his action of waste for what be do in  his ancestor time a bishop master of a hospital a parson shall not punish what  be do in the time of his predecessor a strong not a heir and that stat e have  be hold rather to be as a ordinance in roll ab title waste oh pl this be call  a ordinance and be say to have be repeal d than a statute or at least as a  direction of the judge which in other case do not bind if the law in truth be  contrary it be against the reason of law that the heir shall have damage which  if due to the testator ought to go to the executor and the reason of that  direction be a mistake for in trespass quod enclosed space to break in pieces  et arbores to go below which trench to the prejudice of his inheritance pull  down his house or the like the law be clear if he in who time the offence be  commit die no action will lie at this day it be so at the commonlaw for a  injury do to my good if a man take away my horse and I die my executor can not  bring a action of trespass for in that he be fineable and liable to  imprisonment but if the horse be alive the executor may bring a replevin and  recover damage for all the time from the take he or a writ of detainer if a  man take a horse from another and bring he back again a action of trespass  will not lie against his executor though it will against he but a action for  the use and hire of the horse will lie against the executor Hamble v Trott  Cowper and see that case for the general subject of the text f Bridgman oh the  commonlaw be so strict in this point that in some other personal Bridgman oh  er p action where the debt or damage or duty be not certain they will not  allow a action to survive and therefore a executor can not bring a action of  account for a account to be make to the testator before the statute of  Westminster c but where the debt or the duty which be the ground of the action  be certain though it sound in damage only which be uncertain the executor may  bring his action and therefore in a action of the case upon a promise in law  to pay money though I confess such action be of a late invention the executor  may bring a action so if it be upon a assumpsit in fact and a collateral  promise for it have be adjudge the action will lie against the executor a  strong for a executor by the commonlaw for they be out of the stat of e but  this action here in the principal case be not mere in nature of a action of  trespass find upon a tort though it be call trespass upon the case so neither  be it ground mere upon a contract for it be mix with negligence and special  prejudice by his not keep the horse of his guest with which he be entrust and  therefore it be more doubtful whether the executor have any remedy at the  commonlaw because though the action have something of crime or fault the  action be per diminution good watch yet the rule or ground of it be upon a  contract in law between the innkeeper and he or whether the executor shall be  aid only by the equity of stat e c I shall not determine but take the  advantage of both for I conceive it lie not by the commonlaw in this case this  action lie here for the of the equity of the this statute be a remedial law  which have always be take by equity Lord raym and see Selwyn n p that Edward g  stat e c the word whereof are  Whereas in time pass executor have not have  action for a trespass do to their testator as of the good and chattel of the  same testator carry away in their life and so such trespass have hitherto  remain unpunished it be enact that the executor in such case shall have a  action against the trespasser and reckon their damage in like manner as they  who executor they he shall have have if they be in life I observe the letter  of the Act be not for trespass de good et catallis carry away but for trespass  ut de good et catallis carry away so that the trespass de good et catallis be  but one instance of the trespass for which a executor Bridgman oh may bring  his action but such a instance as seem to restrain it though not to those  trespass only yet to trespass of a like nature and not to trespass mere  personal as battery or slander or which trench to the inheritance and so  proper concern not the executor as trespass quod enclosed space to break in  pieces arbores leg of meat or the like and yet the word good in such case will  help or abet for tree cut down by the statute of marlbridge but with this  difference the statute the instance de good carry away be but similitudinary  have be construe favourable accord to equity or rather render accord to the  extent of the letter for act that give remedy for wrong do shall be take large  so a quare hinder lie by a executor for a disturbance in the life of the  testator and yet neither a ware nor a prochein avoidance can be proper say  good et catalla carry away and as the word good et catalla have be extend  large so also the word trespass it have be extend to action in the case in  general as in russell case to trover and conversion to au action bring by a  executor for trover and conversion in the life of the testator and be also so  adjudge Trin James b r Jerome and best case so as to banishment strong which  be trespass and more for the land shall be recover a executor shall have a  action of trespass and ejectment for a ejectment in the life of the testator  so here in the plaintiff case the intestate have a ground of action by reason  of his good videlicet the horse take away though not by the defendant yet by  his default per diminution hosp protector or to be a servant of oneself by  negligent garder as the writ run or rather in this case which I desire to be  observe as bring it near to the letter of e by the act of the ostler for if  the horse have be steal out of the stable it have be pro diminution but it be  find here to be by mean of the act of the ostler or innkeeper by put the horse  to grass extra female guest without the request of the owner but for my  opinion I rather think this action will lie by the executor at the commonlaw  and needs not the aid of the statute e for where the action be ground upon a  contract or quasi contract in law or fact I conceive the interest of the  action will pass over to the executor that be the reason of the case I before  Bridgman oh er p cite that upon a promise make to the testator to build he a  house deliver he ware or the like the executor shall have the action for the  breach in the testator lifetime yet it be mix with something of fauxity and  deceit it be call et fraudulently to contrive skilfully et to stretch out  Bridgman oh but the ground and foundation of the action be a agreement not a  tort so in frequent practice a executor may bring a action of debt for not set  out of tithe in the life of the testator for there be a duty to he that be the  foundation a first cause of the action the law make the contract and superadd  the penalty in this case there be shrinking or quasi shrinking between the  guest and the innkeeper in Bedel and Morriss case in a action against a  innkeeper for his good the judgement be in means not in to take in hand for it  be not such a contempt for which the king shall have fine nor be it a action  contra peace the law force the innkeeper to receive the guest horse else a  action will lie against he and the law force the innkeeper to preserve the  good of big guest or else a action will lie against he a innkeeper by reason  of sickness be of nonsane memory and then the good of the guest be steal out  of the house but as long as be keep a inn the law require the good of the  guest shall be safe keep and therefore a action lie against he again the law  force the guest to make a recompense if be pay not he may detain big horse and  be not bind to big action or if he will bring big action he may without any  special contract have a action for big horse and all the meat drink lodging  and other accommodation which he have at the inn so that now the law make the  contract and big not safe deliver the horse though it be occasion by big own  negligence yet be a breach of big contract in law which be to keep preserve  and restore the horse if there have be a assumpsit in fact to deliver good  though they be after steal a action will lie by the executor for breach of it  by the commonlaw the same reason here upon a assumpsit or contract in law and  this be the main reason that move I in this case the case have be cite but  miscited at the bar out of latchs report which by the way be very ill print it  be between Lemason and Dixon enter Tr car b r rot latch W Jones Calth Rep  MSS It be to be regret that the three volume of Calthorpes report be not  deliver to the trustee of the British museum with the other two volume see  above note b p king f h the defendant be arrest on a bill of Middlesex at the  suit of the testator whereupon he intend to declare in debt the bailiff of the  liberty suffer he to escape the testator die and the executor bring a action  of the case for the escape the case be argue at the bench hill car b r justice  whitlocke Bridgman oh and dodderidge hold it will lie by the equity of the  statute e justice Jones and Lord chief justice hide hold the contrary the case  be not ever determine to this day that ever I hear of and the more I think of  it the more I doubt of it but there seem to I a great difference between the  case for first there the escape be upon mesne process the debt still remain  against the party and he be liable to the action of debt here be no other  remedy for his horse second if the plaintiff after the arrest have died and  before judgement the executor can have take no advantage of any proceed but  the suit have abate and do actual abate here a interest or right of action in  recompense of his horse vest in the testator the horse shall have be part of  his inventory and by the same reason the right of action the manuscript leaves  the sentence abrupt without the word right of action l but three in that case  there be no contract in fact or in law between the bailiff who suffer the  prisoner to escape and the testator it be a mere tort and the action be ground  upon a mere tort in our case I have show the law create a contract and  therefore the executor may bring the action if a man be take in execution and  the gaoler suffer he to escape a action of debt lie for the party can not  again be take in execution and the law create a contract between the gaoler  and the plaintiff and therefore the executor of the plaintiff may bring his  action against the gaoler and by the same reason here but the action of debt  will not lie against the executor of the gaoler upon such a contract by law  Bridgman oh er p no more perhaps here against the executor of the innkeeper  for the executor shall not be charge in debt for the default of the testator I  know no authority in this case but h car b r the case be upon a judgement the  plaintiff take out a become facias the sheriff thereupon levy but there be no  resemblance of the case where the executor be defendant and where he be  plaintiff against the person himself who give the cause of action which be our  case so for these reason I conclude judgement ought to be give for the  plaintiff