SEPTEMBER TERM, 1764.

Lib. D. D. No. 7. fol. 12.

#### Jonathan M'Laughlin, Executor of Nicholas Beeston, *against*Caleb Dorsey.

THIS was an action on the case. The declaration Stated “ that the testator in his life-time, was seised of a “ tract of land through which a stream of water used to “ run, on which stream of v/ater he had a water grist-mill erected and standing; that the defendant a dam of earth, “ stones and wood, did raise and erect, and put across the *a*said stream of water, on the land adjoining the above 44 mentioned tract, below the mill of the testator, so near that *il*by the raising of that dam the water was stopped in its “ course, and made to stand in a pond in and upon the land “ of the testator, by which 25 acres of the said land over- ££ flowed, whereby the mill of the testator was impeded “ and stopped, and the timber, trees and grass perished, “ and the whole profits of the mill were lost to the testa* ££ tor,” &c. The defendant plead in justification a writ of *ad quod*damnum, the inquisition of a Jury, and the grant thereupon, according to the act of Assembly, entitled “An “ act for the encouragement of an iron manufactory within “ this Province,” passed the 6th of June, 1719. (Vid. *Bacon’s*Laws, 1719, c. 15,) To this plea the plaintiff demurred.

*225
      *I. Holly day,*for plaintiff.

The plea does not set forth the land condemned under the act of Assembly, to be the land on account of which the present suit is brought. No man has a right to use his own land to the prejudice of another, and, therefore, the identity of the land should be shewn that it might appear to be the same that was condemned, or the party has done an illegal act. 8 *Mod.*272. *Ld. Raym.*1399.

Key, for defendant,

Did not undertake to support the plea, but argued that the action could not be supported, and alleged that real estates, and actions relative thereto, descended to the heir at law, and might since, by the statute of wills, go to the devisee. The stat. 4 and 25 *Edw.*III. gave an action to the executor for taking goods in the life-time of the testator. 32 *Henry*VIII. c. 37. gives remedies for rents. For things certain, as in detinue, replevin, &c. an executormay maintain an *action;*but for things uncertain, as damages, &c. *contra,*4 *Leon.*45. Covenants which are real always go with the freehold. 1 *And.*55. An executor may bring an action real, which the testator might have brought but not for uncertain damages in personal actions. *Shep.*481.

T. *Johnson,*on the same side,

Cited *Cro. Eliz.*207. 1 *Stra.*212. as being within the equity of the stat. of 4 *Edw.*III. that an executor might maintain an action for goods taken in the life of the testator, because it was an actual interest. At common law no action could lie against the executor of a gaoler for an escape. 2 *Inst.*382. An action may be maintained by the executor, for an injury to the personal estate of the testator, because that part of the testator’s property goes to. the executor. 4 *Mod.*403. *1 Ventr.*30.

*226
      *I. Hollyday,*for plaintiff.

The case in 4 *Leon. 13.*pi. *33.*is differently stated from the case in *Cro. Eliz.*207. In *Ventr.*175. the executor maintained an action founded on the real estate of the testator. 2 *Lev.*26. In *Wentw. Off. Executors,*67. it is said an action may be maintained by an executor for hay, but for grass, *quaere,*as to the time of the death of the testator 64. An action will lie by the executor for the annual profits of the testator’s estate. 1 *Vent.*187. He alleged that if the executor could not support an action in the case at bar, no other person could; there would then be a wrong without a remedy.

*I. Hall,*in reply.

According to 2 *Vent. 56.*11 *Mod.*45. pi. 10. an executor may have an action on a covenant real, for a breach in the life-time of the testator, because the damages recovered on said breach would go to the executor. So in the case in *Cro. Eliz.*377. an action of trover and conversion is to the same effect as the case in *Vent,*and 11 *Mod.*An executor may be charged for an injury done by the testator where a certain value or price is known. *Saville,*40. Uncertain damages die with the testator, but where damages are certain it is otherwise.

The Provincial Court gave judgment for the defendant.