Actio personalis moritur cum persona

Actio personalis moritur cum persona

Literal Meaning

A personal right of action dies with the person.

Explanation & Origin

The maxim is first quoted in a case from 1496, where a woman against whom a defamation judgment was issued died before paying the damages to the tortfeasor.

It has been argued by academics and acknowledged by the courts that notwithstanding the Latinate form in which the proposition is expressed its origins are less antiquated. It has been described by one Lord Chancellor (Viscount Simon) as  “not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised”   

It is the principle of early law that the death of either of party to a personal duty takes away all remedy and destroys the duty.

In English law , the principle is usually put in the form actio personalis moritur cum persona, an expression of uncertain but post-classical origin. The doctrine is embodied and not peculiar to common law system. The idea belongs to primary strata in universal law. In modern times it has been gradually limited by judicial decisions and is now being still further restricted by legislation.

Illustration 

If A commits battery on B and either party dies , the right of action which accrued to B by the reason of the battery is taken away. But if A commits a battery upon B , or do other injury to him , any right of action which accrues to third person will not be affected by the death of B , so far as the application of the maxim in question is concerned.

Case Reference

Hambly vs. Trott [(1776) 1 cowp 37]

The action of trover was subjected to scrutiny in order to ascertain whether it is so far recuperatory as to be maintainable after the death of the tortfeasor. Lord Mansfield saw that the remedy savored strongly of property , but not sufficiently so to prevent the right of action from perishing with the person.

Nurani Jamal And Others vs Naram Srinivasa Rao And Others [AIR 1996 AP 6]

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.

Pinchon’s case [1612]

This case raised a still more difficult problem. Fitzerbert had said that the debt was dead , like the testator.

Baker vs. Bolton [KBD 8 Dec 1808]

This case arose : The defendants were the proprietors of a stage coach , on the top of which the plaintiff and his wife were travelling from Portsmouth to London. The coach was overturned and the plaintiff’s wife was so badly hurt that she died a month later. The plaintiff brought an action for negligence and sought to recover for the loss of service and consortium. It will be noted that the maxim actio personalis did not apply and there was nothing to show that the defendant’s conduct was felonious. Hence , the doctrine of merger was not applicable.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje

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