The United States v. James and John G. Daniel, Executors of Beverly Daniel, Late U. S. Marshal

delivered the opinion of the court.

This case is brought here from the District of North Carolina, .pn a certificate , of a division of opinion by the judges, under the act of Congress.

A jury, having been impanelled to try the issues. joined, *13 . found for the plaintiffs, and assessed their damages at seven hundred seventy-five dollars and eighty cents. This verdict was taken by consent of parties, subject to the opinion of the court on the following case.

“ Beverly Daniel, being in his lifetime marshal of the District of North Carolina, certain executions, at the instance of the United States, from the District Court of Newbern, came to the hands of one of the deputies of the said marshal, who, in the name and on behalf of his principal, made false returns upon some of them, and imperfect and insufficient entries on others. After the death of Daniel, this action on the case was brought against the defendants, his executors, to recover damages for the said false and insufficient returns; and it is contended that the action will ñot lie, and is not sustainable against them as executors., and it is agreed by the parties that judgment shall be rendered for the plaintiffs upon the said verdict, if the court shall be of the opinion that such action is sustainable; otherwise, the said verdict to be set aside, and the action-to be discontinued.” And on a motion being made for judgment, the opinions of the judges were opposed on the point reserved.

No action will lie against an executor for a personal wrong by the testator. Com. Dig. Administrator, B. Nor does it lie against the executor of a jailer for an escape. Ibid. Waste does not lie against an executor or administrator; nor an action upon a penal statute. So trover is said not to lie against an executor upon a trover and conversion by, his testator, though a different form of action will lie for the same cause. Cowper, 371.

If the person charged has secured no benefit to himself at the expense of the sufferer, the cause of action is said not to survive; but where, by means of the offence, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. And it is laid down in Cowper, 376, with respect to the form, that no action survives where the plea of the defendant must be “not guilty,” but where the case survive's, some other form must be pursued.

.If the deputy-marshal, in the misfeasance complained of, received money or property, the marshal being- responsible for such acts, the cause of action survived against his executors. But this is not the case made in the present action. It is an action on the case requiring the general issue of “not guilty.” If a liability were shown against, the deceased marshal, it could not be enforced against his executors in this form. No action, where the plea must be that the testator was not guilty can *14 lie, at common law, against the executor. Upon the face of the record, the action arises ex deUcto ;■ and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender. 3 Bac. Abr. 539.

The provision in the 10th section óf the North Carolina statute, “to prevent the abatement of suits in'certain cases,” — which declares that an action of trespass on the case, &c., shall not abate by the death of either party, — does not affect the above question.

This court think that the action, in the form prosecuted, is not maintainable; and they direct the fact to be so certified to the Circuit Court.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of North Carolina, and on the point or question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such cases made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the action in the form prosecuted will not lie. It is thereupon now here ordered and adjudged by this court, that it be so certified to' the said Circuit Court.