Action, Survival. If an action lies against an attorney at law for conspiring with a client under examination as a poor debtor to prevent, by false testimony of the client, certain money of the client from being taken on execution, such an action does not survive under Pub. Sts. c. 165, § 1, the injury not being "damage done to real or personal estate" within the meaning of that statute.
KNOWLTON, J.
This case is before us on the plaintiff's appeal from an order sustaining the defendant's demurrer, and directing a judgment for the defendant. A question much discussed by the parties is whether the averments of the declaration state a case of damage directly resulting from the defendant's wrong, which can be the foundation of a judgment in an action of tort. The allegations of the declaration virtually charge the defendant with subornation of perjury. He is accused of having conspired with his client to present false testimony which should prevent the plaintiff's intestate from obtaining an order for the payment to him of a sum of money. The defendant contends that this case is governed by the decisions in many cases which hold that no action lies for conspiring with a debtor to fraudulently dispose of his property to keep it away from his creditors. See Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Bradley v. Fuller, 118 Mass. 239; Adler v. Fenton, 24 How. 407; Austin v. Barrows, 41 Conn. 287; Klous v. Hennessey, 13 R.I. 332; Moody v. Burton, 27 Maine, 427; Hall v. Eaton, 25 Vt. 458.
None of these cases is identical with the present case, and it is unnecessary to determine whether the principles established by them are so far applicable to the facts set out in the declaration as to be decisive of the question. We are of opinion that the demurrer was rightly sustained on another ground. This action is brought by the administrator of the original judgment creditor to whom the wrong is alleged to have been done. It is a general rule that actions of tort do not survive. Pub. Sts. c. 165, § 1. The statute creates certain exceptions to this rule, of which the only one necessary to be considered is that referring to actions "for damage done to real or personal estate." The plaintiff contends that this case falls within this exception, and argues that the suit is brought to recover for damage done to the judgment, which is personal estate.
It has been decided repeatedly that "a mere fraud or cheat by which one sustains a pecuniary loss cannot be regarded as a damage done to personal estate." Leggate v. Moulton, 115 Mass. 552, and cases there cited. See also Cutter v. Hamlen, 147 Mass. 471. The statute was intended to give a remedy which should survive only for injuries of a specific character "to real or personal estate." In the case last cited there was no damage done to the plaintiff's real or personal estate, and in the present case there was no damage done to the judgment, considered as a specific part of the property of the plaintiff's intestate. The judgment was entirely unaffected by the defendant's alleged wrong. The wrong was not directed towards the judgment itself. At the most, it merely rendered ineffectual one of the methods by which the creditor hoped to collect the judgment. It seems to us plain, therefore, that the case does not fall within this exception, and that the entry must be,
Judgment affirmed.