1. This is a point of some little interest. A man called Subramanya Chetti started a suit for damages for malicious prosecution and in his plaint, he claimed a sum of money by way of general damages and he also claimed special damages under two heads The first was Vakil's fees and the second was travelling and other incidental expenses for securing the attendances of witnesses for the purpose of defending the prosecution which was launched against him. We will take it that that prosecution failed and had this unfortunate man lived, he would have got substantial damages against the defendant which would have included the special damages alleged to have been incurred by him. As a matter of fact, he died while the suit was pending, and when the suit actually came on for trial before the learned Subordinate Judge, it was proposed to continue, the action with his executor or legal representative substituted as the plaintiff. The learned Judge held that that could not be done and we agree with him.
2. The thing can be put in two ways: (1) on a narrower and (2) on a broader ground. The narrower ground is this: that his cause of action throughout is the tortious act of which he was the victim and not the fact that he incurred out of pocket expenses, e.g , for getting himself cured by a Doctor in case of personal injuries or getting himself defended by a Barrister or a Vakil in case of malicious prosecution That goes to swell the bill against the defendant but it is not a cause of action. The cause of action is that which was done to him by running him over or by prosecuting him maliciously as the case may be. When we come to the case of an executor or a legal representative, his cause of action on behalf of the estate is quite different. He can only sue for a tangible, measurable, pecuniary loss caused to the estate by reason of the tortious act, so that it would follow on the narrower ground that although both the plaintiff if living, and his legal representative after his death had a cause of action for the recovery of these out of pocket expenses caused by the wrong of the defendant, nevertheless they would recover them in different rights and for different reasons. The living plaintiff will recover them as part of the damages for his general cause of action, i.e, malicious prosecution; while to the executor or admmistrator, the expenditure would be the sole cause of action, because to that alone would he be entitled to a judgment. It may be put as it was put in the English case of Pulling v. Great Eastern Railway Co. (1882) 9 Q.B.D. 110 45 J.P. 617 on the broader ground that these expenses are not the losses to the estate of the deceased within the meaning of the Act of Parliament (the wording of which is practically identical with that of the Indian Statute), because they are so submerged and overtopped by the real cause of action which was the tortious (injury here malicious prosecution,) that they must be treated as a mere incident of that cause of action and not as giving rise to a separate head of liability enuring after death, to the legal representative. On that the legal representative could not start an independent action for the expenses of the malicious prosecution as in the present case. We respectfully agree but in any event we think that the learned Judge was quite correct in holding in accordance with the authorities in Calcutta and Madras that the cause of action of the deceased man himself and that if any of his executors, are so different that it would be impossible to permit his legal representatives to carry on a suit instituted by him to recover damages. That being so, there is no cause of action and this appeal will be dismissed. One set of costs to be divided.