#6662 - Phillips V. Homfrey No. 2 - Commercial Remedies BCL

Phillips v. Homfrey (No. 2)

Facts

THIS suit was instituted in the year 1866 by the Plaintiffs against S. Homfray and other persons, including the deceased R. Fothergill, praying for a declaration that the Defendants were liable in respect of certain coal and ironstone gotten and removed by them from under the Plaintiffs' farm, for an account of the coal and ironstone gotten by them from under the farm, for an account of coal and ironstone conveyed from the Defendants' own mines through roads and passages under the Plaintiffs' farm, and that the Defendants might be decreed to pay for the coal and ironstone wrongly gotten by them from under the Plaintiffs' farm at their proper value, and also to pay a wayleave rent or compensation in respect of their user of the roads and passages under the Plaintiffs' farm for the conveyance of their own coal and ironstone; also that they might pay compensation for the damage done to the surface of the Plaintiffs' farm, and for other relief.

The order in Philip v. Homfrey (No. 1): By the Vice-Chancellor's decree, as varied on appeal, it was, amongst other things, declared that the Defendants Fothergill and S. Homfray in the first suit, and the estate of the deceased Defendant W. H. Forman in the first suit, were answerable to the Plaintiffs in the first suit for and in respect of all coal, ironstone, and other produce at any time gotten or removed by them, or by their order, or for their use, under the Plaintiffs' farm, or any part thereof, and that the Defendants S. Homfray and R. Fothergill were liable to make compensation to the Plaintiffs in the first suit for user of all roads and passages under the said farm.

The following inquiries were directed:—1. An inquiry what quantities of coal, ironstone, and other produce have been so gotten or removed as aforesaid. And it was ordered that the market price or value, or as near thereto as may be, of all coal, ironstone, and other produce so gotten or removed as aforesaid at the pit's mouth (all just allowances being made to the Defendants in the first suit in respect of their charges and expenses (if any) on account of the carriage to the pit's mouth or otherwise of such coal ironstone, and other produce, but no allowance being made for the expense of getting, severing or working the same) be certified. And it was ordered that the following further inquiries be made:—2. An inquiry what quantities of coal, ironstone, and other produce have been conveyed from the collieries and mines of the Defendants in the first suit in the pleadings mentioned, or any of them, over or through the roads or passages under the Plaintiffs' said farm. 3. An inquiry what amount, upon the result of the inquiry last directed, ought to be paid by the Defendants in the first suit to the Plaintiffs in the first suit for wayleave and royalty in respect of the user by the Defendants in the first suit of the said roads and passages for the purpose of working their said collieries and mines. 4. An inquiry whether the said farm and the mineral property of the Plaintiffs in the first suit under the same have sustained any, and if any, what amount of damage by reason of the manner in which the Defendants in the first suit have worked the coal, ironstone, and other produce under the Plaintiffs' said farm.

Death of Mr. Fothergill and claim of abatement: R. Fothergill died on the 19th of September, 1881, and the suit of Phillips v. Homfray was revived against the Defendant Mary Fothergill, as executrix of his will. In February, 1883, a motion was made by Mrs. Fothergill before Mr. Justice Pearson that all proceedings under the second, third, and fourth inquiries might be stayed, and the official referee directed not to proceed with them.

Question

The question raised in both appeals is how far the respective inquiries, and the Plaintiffs' claim in virtue of which they were directed, are affected by the principle actio personalis moritur cum personâ.

Holding

Bowen LJ (Majority)

The only cases in which, apart from questions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act, appear to us to be those in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys. In such cases, whatever the original form of action, it is in substance brought to recover property, or its proceeds or value, and by amendment could be made such in form as well as in substance. In such cases the action, though arising out of a wrongful act, does not die with the person. The property or the proceeds or value which, in the lifetime of the wrongdoer, could have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there. But it is not every wrongful act by which a wrongdoer indirectly benefits that falls under this head, if the benefit does not consist in the acquisition of property, or its proceeds or value. Where there is nothing among the assets of the deceased that in law or in equity belongs to the plaintiff, and the damages which have been done to him are unliquidated and uncertain, the executors of a wrongdoer cannot be sued merely because it was worth the wrongdoer's while to commit the act which is complained of, and an indirect benefit may have been reaped thereby.

An action for mesne profits in this narrower sense will not lie at common law and apart from statute against executors, and no account would be decreed in equity, except in a case where the profits were either property or the produce, or profits, or value of property actually received.

As long as the maxim actio personalis moritur cum personâ is preserved by the law of this country, the line drawn is neither inconvenient nor unreasonable. If every wrongful act which was attended consequentially and indirectly with advantage to the wrongdoer or his pocket were to warrant an action against executors, it would be impossible to know when executors were liable or not, and the maxim would, in fact, become a mere source of litigation.

It seems to us, as we have said, that the profits arising from a wrong done by a deceased man which can be followed against his estate are only such profits as take the shape of property or the proceeds or value of property withdrawn from the rightful owner and acquired by the wrongdoer…. So far as we are aware an action for mesne profits (or bare damages for wrongful...