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The statutory cause of action is in substitution, not cumulative. It is said that the Act does not transfer to representatives the right of action which the person killed would have had, "but gives to the representative a totally new right of action on different principles" (g). Nevertheless the cause of action is so far the same that if a person who ultimately dies of injuries caused by wrongful act or neglect has accepted satisfaction for them in his life-time, an action under Lord Campbell's Act is not afterward's maintainable (h). For the injury sued on must, in the words of the Act, be "such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof": and this must mean that he might immediately before his death. have maintained an action, which if he had already recovered or accepted compensation, he could not do.

Scottish and American laws. In Scotland, as we have incidentally seen, the surviving kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell's Act; but they differ considerably in details from that Act and from one another (i). The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England.

(g) 18 Q. B. at p. 110.

(h) Read v. G. E R. Co. (1868), L. R. 3 Q. B. 555, 37 L. J. Q. B. 278.

(i) Cooley on Torts (Chicago, 1880), 262 sqq.; Shearman & Redfield on Negli

gence, ss. 263 sqq. In Arkansas the doctrine of actio personalis, &c., appears to have been wholly abrogated by statute: ib. s. 895.

Effect of death of either party. In the absence of special statutes the decisions in America follow the common law rule, that in a civil court, the death of a human being cannot be complained of as an injury. Carey v. Berkshire R. Co., 1 Cush. 475; Kearney v. Boston & W. R. Corp., 9 Cush. 109; Conn. Mut. Life Ins. Co. v. New York & N. H. R. Co. 25,

Right to follow property wrongfully taken or converted as against wrong-doer's estate. In one class of cases there is a right to recover against a wrong-doer's estate, notwith

Conn. 265; Whitford v. Panama R. Co., 25 N. Y. 465; Kramer v. Market Street R. Co., 25 Cal. 434; Hyatt v. Adams, 16 Mich.; Robert v. Lisenbee, 86 N. C. 136; 41 Am. Rep. 450; Peoria, etc., Ins. Co. v. Frost, 37 Ill. 333; Hugh v. New Orleans, etc., R. Co., 6 La. Am. 495; Insurance Co. v. Brame, 95 U. S. 754; Woodward v. Michigan, etc., R. Co., 10 Ohio St. 121; Belding v. Black Hills & Ft. P. R. Co. (S. D.), 53 N. W. Rep. 750; Illinois Cent. R. Co. v. Pendergrass, 69 Miss. 425; 12 So. Rep. 954; Wyatt v. Williams, 43 N. H. 102; Scheffler v. Minneapolis, etc., Ry., 22 Minn. 125; Sherman v. Johnson, 58 Vt. 40; Pitts v. Hale, 3 Mass. 321; Stetson v. Kempton, 13 Mass. 272; Moe v. Smiley, 125 Pa. St. 136; 17 At. Rep. 228; 23 W. N. C. 461; Browner v. Sterdevant, 9 Ga. 69; Newsom v. Jackson, 29 Ga. 61; Schreiber v. Sharpless, 17 Fed. Rep. 589; Coker v. Crozier, 5 Ala. 369; McClure v. Miller, 4 Hawks. 133.

Contra. Ford v. Monroe, 20 Wend. 210; Cross v. Guthery, 2 Root, 90; Green v. Hudson River R. Co., 2 Keyes, 294.

This rule applies to every cause of action not satisfied by final judgment; thus it has been held, that if the plaintiff die after an appeal by the defendant from an award in favor of the plaintiff, for an assault and battery, his representatives cannot be substituted and the award is at an end. Miller v. Umbehower, 10 Serg. & R. 31. See Gibbs v. Belcher, 30 Tex. 79; Long v. Hitchcock, 3 Ohio, 274; Faith v. Carpenter, 33 Ga. 79; Harrison v. Mosley, 31 Tex. 608; Kelsey v. Jewett, 34 Hun, 11; Kimbrough v. Mitchell, 1 Head, 539; Baltimore R. Co. v. Richie, 31 Md. 191; In re First Nat. Bank, 49 Fed. Rep. 120.

In most or all the United States, statutes containing provisions substantially similar to those of Lord Campbell's Act are in force. When the right of action is thus given it is ordinarily limited to those cases wherein the deceased person could have maintained a suit for the injury had he survived. The decisions construing these statutes are numerous and often peculiar to certain provisions, and it is not deemed consistent or practicable to undertake to cite them here. It is, however, important to note that the term "personal representative" employed in these statutes, means the executor or administrator of the deceased, and not his next of kin. Chicago v. Mayor, 18 Ill. 349; Haley v. Mobile & O. R. Co., 7 Baxt. 239; 8 Am. & Eng. R. Cas. 344; Kramer v. Market St. R. Co., 24 Cal. 434; Boutiller v. Milwaukee, 8 Minn. 97; Whiton v. Chicago, etc., R. Co., 21 Wis. 305; Needham v. Grand Tr. R. Co., 38 Vt. 294; Woodward v. Chicago, etc., R. Co., 23 Wis. 400; Schmidt v. Degan, 69 Wis. 300; 34 N. W. Rep. 83. The constitutionality of such a statute was sustained in Georgia R. Co. v. Pittman, 73 Ga. 325; 26 Am. & Eng. R. Cas. 474. See Carroll v. Mo. Pac. R. Co., 26 Am. & Eng. R. Cas. 268. Under these statutes the measure of damages for the wrongful killing

standing the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxim has to prevail.

As Lord Mansfield stated the rule, "where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor" (k). Or, as Bowen L. J. has more fully expressed it, the cases under this head are those "in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys." In such cases, inasmuch as the action brought by the true owner, in whatever form, is in

(k) Hambly v. Trott, 1 Cowp. 375.

of a person is the estimate of compensation for the pecuniary loss to the survivors. Demarest v. Little, 47 N. J. L. 28; Chicago, etc., R. Co. v. Morris, 26 Ill. 400; Kessler v. Smith, 66 N. C. 154; Atlanta, etc., R. Co. v. Ayres, 53 Ga. 12; Atchison v. Twine, 9 Kan. 350; Tilly v. N. Y., etc. R. Co., 24 N. Y. 471; Stoker v. St. Louis, etc., R. Co., 91 Mo. 511; Annas v. Milwaukee, etc., R. Co., 67 Wis. 46; Railroad Co. v. Barron, 5 Wall. 90; Chicago, etc., R. Co. v. Swett, 45 Ill. 197; Paulmier v. Erie R. Co. 34 N. J. L. 151; Rockford, etc., R. Co. v. Delaney, 82 Ill. 198; Chicago v. Hesing, 83 Ill. 205; Houston, etc., R. Co. v. Cowser, 57 Tex. 293.

In several of the States it is held, that the action can only be brought in those States where the statute gives the right and where the killing occurred. Woodward v. Mich., etc., R. Co., 10 Ohio St. 121; Illinois Central, etc., Co. v. Cragin, 71 Ill. 177; Limekiller v. Hannibal, etc., Co., 33 Kan. 83; Chicago, etc., Co. v. Schroder, 18 Ill. App. 328; Needham v. Grand Frank, etc., R. Co., 38 Vt. 294; Davis v. New York, etc., Co., 143 Mass. 301; Vawter v. Miss., etc., Co., 84 Mo. 679.

But, ordinarily, a foreign administrator may maintain the action when the laws are substantially the same, and the action is not opposed to the general policy of the State in which the suit is brought. Leonard v. Columbia S. N. Co., 84 N. Y. 48; Kansas Pac. R. Co. v. Cutter, 16 Kan 568; Taylor's Admr. v. Penna. Co., 7 Am. & Eng. Cas. 23; South Carolina R. Co. v. Nix, 68 Ga. 572; Wabash, etc., Co. v. Shackett, 105 Ill. 364; 12 Am. & Eng. R. Cas. 166; Jeffersonville, etc., R. Co. v. Hendricks, 41 Ind 49; Illinois Cent., etc., Co. v. Crudup, 63 Miss. 291; Burns v. Grand Rapids, etc., Co., 113 Ind. 169; 15 N. E. Rep. 230; Dennick v. Railroad Co., 103 U. S. 11; Knight v. West Jersey R. P. Co., 108 Pa. St. 250; Luke v. Calhoun Co., 52 Ala. 115; Missouri Pac. Ry. Co. v. Lewis, 28 Neb. 848; 40 N. W. Rep. 401.

substance to recover property, the action does not die with the person, but "the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets "(by suing the personal representatives)" and recaptured by the rightful owner there." But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer's estate in the sense of being useful to him or saving him expense (1).

The rule limited to recovery of specific property or its value: Phillips v. Homfray. If A. wrongfully gets and carries away coal from a mine under B.'s land, and B. sues for the value of the coal and damages, and inquiries are directed, pending which A. dies, B. is entitled as against A.'s estate to the value of the coal wrongfully taken, but not to damages for the use of the passages through which the coal was carried out, nor for the injury to the mines or the surface of the ground consequent on A.'s workings (h).

Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner; B. sues A., and pending the action, and more than six months after its commencement (i), A. dies. B. has no cause of action against A.'s representatives, for there has been no specific benefit to A.'s estate, only a wrong for which B. might in A.'s lifetime have recovered unliquidated damages (k).

The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares,

(1) The technical rule was that executors could not be sued in respect of an act of their testator in his lifetime in any form of action in which the plea was not guilty: Hambly v. Trott, 1 Cowp. 375. (h) Phillips v. Homfray (1883), 24 Ch. Div. 439, 454, 52 L. J. Ch. 833. The au

thorities are fully examined in the judg
ment of Bowen and Cotton L.JJ. As to
allowing interest in such cases, see
Phillips v. Homfray, '92, 1 Ch. 465, C. A.
(i) 3 & 4 Will. IV. c. 42, p. 60, above.
(k) Kirk v. Todd (1882), 21 Ch. Div. 484,
52 L. J. Ch. 224.

and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable (7). In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is some beneficial property or value capable of being measured, followed, and recovered" (m). For the rest, the dicta of the late Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval.

3. Liability for the Torts of Agents and Servants.

Command of principal does not excuse agent's wrong. Whoever commits a wrong is liable for it himself. It is no excuse that he was acting, as an agent or servant, on

(1) Peck v. Gurney (1873), L. R. 6 H. L. at p. 392.

(m) 24 Ch. D. at p. 463.

If a ser

Command of principal does not excuse agent's wrong. vant commit a tort out of his course of employment, he alone is responsible to the person injured thereby. If he commit a tort while acting within the course of his employment, he and his master are each liable for the resulting damages. Mitchell v. Harmony, 14 How. 115; Brown v. Lent, 20 Vt. 529; Wright v. Wilcox, 19 Wend. 343; Richardson v. Kimball, 28 Me. 463; Suydam v. Moore, 8 Barb. 458; Althorf v. Wolfe, 22 N. Y. 355; Phelps v. Waite, 30 N. Y. 78; Hewitt v. Swift, 3 Allen, 420; Grand Trunk R. Co. v. Latham, 63 Me. 177; McClanathan v. Oswego, etc., R. Co., 1 Thomp. & C. 501; Mitchell v. Harmony, 13 How. 115; Harriman v. Stowe, 57 Mo. 93; Hawksworth v. Thompson, 98 Mass. 77; Johnson v. Barber, 5 Gilm. 425; Bennett v. Joes, 30 Conn. 329; Wright v. Crompton, 53 Ind. 337; Evansville, etc., R. Co. v. Baum, 26 Ind. 70; Peck v. Cooper, 112 Ill. 192; Reynolds v. Hanrahan, 100 Mass. 313; The State v. Walker, 16 Me. 241; Porter v. Thomas, 23 Ga. 467; Sagers v. Nuckolls (Colo. App.), 32 Pac. Rep. 187.

So, one servant may recover damages from a co-servant for injuries suffered through the latter's negligence. Griffiths v. Wolfram, 22 Minn. 185; Osborne v. Morgan, 130 Mass. 102; overruling Albro v. Jaquith, 4 Gray, 99; Hinds v. Harbon, 58 Ind. 21; Hinds v. Duenacker, 66 Ind.

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