Actio personalis moritur cum persona

Effect of the maxim

Some legal causes of action can survive the death of the claimant or plaintiff, for example actions founded in contract law. However, some actions are personal to the plaintiff, defamation of character being one notable example. Therefore, such an action, where it relates to the private character of the plaintiff, comes to an end on his death, whereas an action for the publication of a false and malicious statement which causes damage to the plaintiff's personal estate will survive to the benefit of his or her personal representatives.

The principle also exists to protect the estate and executors from liability for strictly personal acts of the deceased, such as charges for fraud.

Origins of the maxim

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:

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 and costs.

The Kings Bench first used the maxim in Cleymond v Vincent (1523) but it was popularised by Edward Coke, with cases like Pinchons Case (1616), and Bane's Case, and to some extent with Slade's Case. (1605)

Judicial discussions of the term followed Pinchon's case in Hambly v Trott and later Phillips v Homfray.

In England, the Law Reform (Miscellaneous Provisions) Act 1934 effectively overturned this rule for all actions in tort except defamation. Other common law jurisdictions have also passed legislation overturning or strongly limiting the rule.

Notes

References

References

1. Goudy ''Two Ancient Brocards'' in ''Essays in Legal History'' Vinogradoff (ed.) and Winfield ''Textbook of the Law of Tort'' 2nd edn. p.201
2. cf. the remarks of Viscount Simon in ''Stewart v. London, Midland and Scottish Railway Co. 1943 SC (HL) 19 at 26''
3. Simpson, A. W. B.. (26 February 1987). "A History of the Common Law of Contract: The Rise of the Action of Assumpsit". Oxford University Press.
4. Alfred William Brian Simpson, ''A History of the Common Law of Contract'', Volume 1 (Clarendon Press, 1987) p572.
5. Alfred William Brian Simpson, ''A History of the Common Law of Contract'', Volume 1 (Clarendon Press, 1987) p564.
6. Alfred William Brian Simpson, ''A History of the Common Law of Contract'', Volume 1 (Clarendon Press, 1987) p443.
7. ''Pinchon's case'' (1611) 9 Rep. 86
8. Hambly v Trott (1776) 1 Cowper 371
9. Phillips v Homfray [1892] 1 Ch 465 (CA).
10. {{Cite legislation UK. (1934)
11. {{cite AustLII. (2010)