alleged, indeed, that "the policy of the law refuses to recognize the interest of one person in the death of another " (7)— a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money; in other words, because the compensation cannot be adequate there shall be no compensation at all (m). It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal (n).

Exceptions: Statutes of Ed. III. giving executors right of suit for trespasses. We now proceed to the exceptions. The first amendment was made as long ago as 1330, by the statute 4 Ed. III. c. 7, of which the English version runs thus: Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.

The right was expressly extended to executors of execu

(7) L. R. 8 Ex. at p. 90, Arg.

(m) The Roman lawyers, however, seem to have held a like view. "Liberum corpus nullam recipit aestimationem: " D. 9. 3, de his qui effud., 1, § 5; cf. h. t. 7,

and D. 9. 1, si quadrupes, 3. See Grueber on the Lex Aquilia, p. 17.

(n) Cp. Mr. Horace Smith's remarks on this case (Smith on Negligence, 2d ed. 256).

tors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators (o). It was held not to include injuries to the person or to the testator's freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown (p).

Of Will. IV. as to injuries to property. Then by 3 and 4 Will. IV. c. 42 (A. D. 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death; and a man's estate can be made liable, through his personal representatives, for wrongs done by him within the six calendar months before his death" to another in respect of his property, real or personal." In this latter case the action must be brought against the wrong-doer's representatives within six months after they have entered on their office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy (9).

No right of action for damage to personal estate consequential on personal injury. Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that

(o) See note to Pinchon's case, 9 Co. Rep. 89 a, vol. v. p. 161 în ed. 1826.

(p) Twycross v. Grant (1878), 4 C. P. Div. 40, 45, 48 L. J. C. P. 1; Hatchard v. Mège (1887), 18 Q. B. D. 771, 56 L. J. Q. B.

397; Oakey v. Dalton (1887), 35 Ch. D. 700, 56 L. J. Ch. 823.

(q) Woodhouse v. Walker (1880), 5 Q. B. Div. 404, 49 L. J. Q. B. 609.

"where the cause of action is in substance an injury to the person," an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property (r).

Lord Campbell's act: peculiar rights created by it. Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to imbecility by the negligence of a railway company's servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, A. D. 1846), a statute extremely characteristic of English legislation (8). Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled "An Act for compensating the Families of Persons killed by Accidents:" it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but "for the benefit of the wife, husband, parent, and child (t) of the

(r) Pulling v. G. E. R. Co. (1882), 9 Q. B. D. 110, 51 L. J. Q. B. 453; cp. Leggott v. G. N. R. Co. (1876), 1 Q. B. D. 599, 45 L. J. Q. B. 557; the earlier case of Bradshaw v. Lancashire and Yorkshire R. Co. (1875), L. R. 10 C. P. 189, 44 L. J. C. P. 148, is doubted, but distinguished as being on an action of contract.

(s) It appears to have been suggested by the law of Scotland, which already gave a remedy: see Campbell on Negligence, 20 (2nd edit.); and Blake v. Midland R. Co. (1852), 18 Q. B. 93, 21 L. J. Q. B. 233 (in argument for plaintiff).

(t) "Parent" includes father and mother, grandfather and grandmother, stepfather and stepmother. "Child" includes son and daughter, grandson and granddaughter, stepson and stepdaughter: sect. 5. It does not include illegitimate children: Dickinson v. N. E. R. Co. (1863), 2 H. & C. 735, 33 L. J. Ex. 91. There is no reason to doubt that it includes an unborn child. See The George and Richard (1871), L. R. 3 A. & E. 466, which, however, is not of judicial authority on this point, for a few months later (Smith v. Brown (1871), L. R. 6 Q. B.

person whose death shall have been so caused." Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury (u). The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf.

By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell's Act may sue in their own names (x).

Construction of Lord Campbell's act. The principal Act is inaccurately entitled to begin with (for to a lay reader accidents" might seem to include inevitable accidents, and again, "accident" does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell's Act to show that the deceased would not himself have sustained pecuniary loss.

statute

"The

gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle "(y).

729), the Court of Queen's Bench held in prohibition that the Court of Admiralty had no jurisdiction to entertain claims under Lord Campbell's Act; and after some doubt this opinion has been confirmed by the House of Lords: Seward v. The Vera Cruz (1884), 10 App. Ca. 59, overruling The Franconia (1877), 2 P. D. 163. (u) Where a claim of this kind is satisfied by payment to executors without an action being brought, the Court

will apportion the fund, in proceedings taken for that purpose in the Chancery Division, in like manner as a jury could have done: Bulmer v. Bulmer (1883), 25 Ch. D. 409.

(x) Also, by sect. 2, "money paid into Court may be paid in one sum, without regard to its division into shares " (marginal note).

(y) Erle C. J., Pym v. G. N. R. Co. (1863), Ex. Ch. 4 B. & S. at p. 406.

But the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean" (z). It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages (a); nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction (b); they must show "a reasonable expectation of pecuniary benefit, as of right or otherwise," had the deceased remained alive. But a legal right to receive benefit from him need not be shown (c). Thus, the fact that a grown-up son has been in the constant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times (d), is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person's continuing in life, are not admissible (e).

Interests of survivors distinct. The interests conferred by the Act on the several beneficiaries are distinct. It is no answer to a claim on behalf of some of a man's children who are left poorer that all his children, taken as an undivided class, have got the whole of his property (f).

(z) Pollock C. B. in Franklin v. S. E. R. Co. (1858), 3 H. & N. at p. 213.

(a) Duckworth v. Johnson (1859), 4 H. & N. 653; 29 L. J. Ex. 25.

(b) Blake v. Midland R. Co. (1852), 18 Q. B. 93, 21 L. J. Q. B. 233. In Scotland it is otherwise: 1 Macq. 752, n.

(c) Franklin v. S. E. R. Co. (1858), 3 H. & N. 211.

(d) Hetherington v. N. E. R. Co., 9 Q. B. D. 160, 51 L. J. Q. B. 495.

(e) Dalton v. S. E. R. Co. (1858), 4 C. B.

N. S. 296, 27 L. J. C. P. 227, closely following Franklin v. S. E. R. Co.

(f) Pym v. G. N. R. Co. (1863), 4 B. & S. 396, 32 L. J. Q. B. 377. The deceased had settled real estate on his eldest son, to whom other estates also passed as heir-at-law. As to the measure of damages where the deceased has insured his own life for the direct benefit of the plaintiff, see Grand Trunk R. of Canada v. Jennings (1888), 13 App. Ca. 800, 58 L. J. P. C. 1.