Ferrill's Administratrix v. Mooney's Executors , 33 Tex. 219 ( 1870 )

Morrill, C. J.

The points for adjudication, and which are raised by the pleadings in this case are :

First—Whether a claim for killing and butchering and using certain animals, against a party thus trespassing, abates by the death of the trespasser or claimant, or of both.

Second—Whether the statutes of limitation apply when there is no administration on the estate of the party claiming the damages.

Third—Whether it is necessary to present the claim for the damages to the administrators of the estate of the one taking the animals.

As the injuries complained of did not affect the person injured, either physically, morally or mentally, but only in his property, and as the pleadings do not raise or seek vindictive or exemplary damages for a tort, but simply seek to recover the value of property, this is not a personal action. It is simply an action to recover property or its value. The wrongful method of obtaining the property cannot be considered, but simply the value of the property, in the same manner as if it had been obtained by consent of the owner.

In the case of Taney v. Edwards, 27 Texas, 225, the court say: “That in all cases of injuries to the person, whether by

assault, battery, ihlse imprisonment, slander or otherwise, if either the party who received or committed the injury die, no action can be supported either by or against the executors or other personal representatives,” by the common law of England.

The next question regards the act of limitations of two years, Article 4604.

The cause of action took place in 1863, but the several stay laws passed and in force at that time (Arts. 5125 to 5146) suspended all laws for the collection of debts. “ Inter arma leges silent.”

Besides, the ordinance of 1866, No. 11, section six, provides “that in all civil actions the time between the second day of March, 1861 and second day of September, 1866, shall not be computed in the applieatian of any statute of limitations.”

The suit was instituted on the twenty-second day of August, 1868, and as thero was not two years from the second of Septena her, 1866, to the twenty-second of August, 1868, the act of limitations does not apply.

We now pass to the third cause of exception. By Article 1310 it is provided that no holder of a claim for money against the estate of a deceased person shall bring a suit thereon, unless such claim, properly authenticated, has been presented to such executor or administrator, etc.

, The words “ claim for money ” have received the construction of this court to mean liquidated claims. (Hall v. McCormick, 7 Tex., 275.) It certainly could not be in the minds of the Legislature to cause a party to make oath as to the amount due on a - claim upon which thero had been no agreement between the parties, and thus open a door to perjury, and to favor a person in an inverse ratio to his conscience.

Besides, the justness of the claim does not have a reference to the amount originally agreed upon, for that is usually reduced to writing, hut is supposed to contemplate the payments that may have been made upon the liquidated claim.

We have thus taken into consideration all the causes of demurrer ; and because the judge erred in sustaining the demurrer the judgment is reversed.

Reversed.