this rule, chiefly arising from an equitable construction of the statute 4 Edw. III. c. 7, by which executors shall have an action of trespass, for a

contrary, revoked by his death. An administrator's title, moreover, relates back to the time of the intestate's death, so that he may sue for goods sold and delivered between the death and the taking out letters of administration.

"An action, however, is not maintainable by an executor or administrator for a breach of promise of marriage made to the deceased, where no special damage is alleged; and, generally, with respect to injuries affecting the life or health of the deceased, such, for instance, as arise out of the unskilfulness of a medical practitioner, or the negligence of an attorney, or a coach proprietor,-the maxim as to actio personalis is applicable, unless some damage done to the personal estate of the deceased be stated on the record. But, where the breach of a contract relating to a person occasions a damage, not to the person only, but also to the personal estate; as, for example, if in the case of negligent carriage or cure there was consequential damage-if the testator had expended his money, or had lost the profits of a business, or the wages of labour for a time; or if there were a joint contract to carry both the person and the goods, and both were injured; it seems a true proposition, that, in these cases, the executor might sue for the breach of contract, and recover damages to the extent of the injury to the personal estate."

"It is, however, to actions in form ex delicto, that the rule actio personalis moritur cum persona is peculiarly applicable; indeed, it has been observed that this maxim is not applied in the old authorities to cases of action on contracts, but to those in tort which are founded on malfeasance or misfeasance to the person or property of another; which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representative by the statute law; it being a general rule that an action founded in tort, and in form ex delicto, was considered as actio personalis, and within the above maxim."

"For a tort committed to a person, it is clear, then, that at common law no action can be maintained against the personal representatives of the tort-feasor, nor does it seem that the recent Stat. 9 & 10 Vict. c. 93, supplies any remedy against the executors or administrators of the party who, by his wrongful act, neglect, or default,' has caused the death of another; for the first section of this act renders that person liable to an action for damages, 'who would have been liable if death had not ensued,' in which case, as already stated, the personal representatives of the tort-feasor would not have been liable." Broom's Legal Maxims, pages 702, 706, 710, 2d edition.

But the strictness in this maxim has been most materially modified by recent legislation, in both England and America.

The act commonly called Lord Campbell's act, is given below, together with the acts of several of the states, of a like character.

"A further most important alteration, says Williams on Ex'rs., p. 674, 4th Am. Ed., in this part of the law has been effected by the stat. 9 & 10 Vict. c. 93, (entitled, An Act for compensating the families of persons killed by accidents,) which, after reciting, that' no action at law is now maintainable against a person who, by his wrongful acts, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient, that the wrong-doer in such case should be answerable in damages for the injury so caused by him :' enacts, whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued,) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."

II. "Every such action shall be for the benefit of the wife, husband, parent, and child, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action, the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so received, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct."

III." Not more than one action shall lie for and in respect of the same subject-matter of complaint; and every such action shall be commenced within twelve calendar months after the death of such deceased person."

IV. "In every such action, the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney, a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which, damages shall be sought to be recovered."

V. "The following words and expressions are intended to have the meanings hereby

wrong done to their testator.(b) [1] Where several parties are jointly concerned in interest, or have suffered a joint injury(c), they may and

(b) 2 Bac. Abr. 444, 5, and see Cowp. 375. 1 Wms. Saund. 5 Ed. 217. 4 Moore, 532. 2 Brod. & Bing. 102, S. C.

(c) 2 Wms. Saund. 5 Ed. 115. 1 Vent. 167. 2 Lev. 27, S. C. 1 Ld. Raym. 127. 2 Wils. 414. 2 Wms. Saund. 5 Ed. 116, (2).

[1] And now, by the law amendment act, 3 & 4 W. IV. c. 42, § 2, and see 3 Rep. C. L. Com. 17, 74, reciting that there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his life time; nor for certain wrongs done by a person deceased in his life time to another, in respect of his property, real or personal; it is enacted, that "an action of trespass, or trespass on the case, as the case may be, may be maintained, by the executors or administrators of any person deceased, for any injury to the real estate of such person, committed in his life time, for which an action might have. been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person; and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person: And further, that an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his life time to another, in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such perBon; and the damages to be recovered in such action shall be payable in like order of administration, as the simple contract debts of such person." But if an action be brought by a termor, upon 7 & 8 Geo. IV. c. 31, for an injury done to his house, within three calendar months from the offence committed, and that action abates by the death of the termor, after the three months have expired, his executor cannot bring a fresh action: Till-Adam (or Adam) v. Inhabitants of Bristol, 4 Nev. & M. 144. 2 Ad. & E. 389, S. C. And it is doubtful, whether an executor of a termor can in any case bring an action upon the 7 & 8 Geo. IV. c. 31, for any injury sustained in the life time of his testator. By the statute 11 Geo. IV. & 1 W. IV. c. 47, for consolidating and amending the laws for facilitating the payment of debts out of real estate, (Sir Edward Sugden's act,) "all wills and testamentary limitations, dispositions, or appointments, made by any person or persons, of or concerning any manors, messuages, lands, &c., whereof any person or persons, at the time of his, her or their decease, shall be seised in fee simple, in possession, reversion, or remainder, or have power to dispose of the same by his, her or their last wills or testaments, shall be deemed or taken (only as against such person or persons, with whom the person or persons making such wills, &c., shall have entered into any bond, covenant, or other specialty, binding his, her or their heirs,) to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and of none effect:"2, and see stat. 3 W. & M. c. 14. 2, made perpetual by 6 & 7 W. III. c. 14. These statutes, however, are repealed by 11 Geo. IV. & 1 W. IV. c. 47, 8 1. And for enabling such creditors to recover upon such bonds, covenants, and other specialties, it is thereby enacted, that “in the cases before mentioned, every such creditor shall and may have and maintain his, her and their action and actions of debt or covenant, upon the said bonds, covenants, and specialties, against the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of such first mentioned devisee or devisees jointly, by virtue of that act; and such devisee and devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been, for any false plea by him pleaded, or for not confessing the lands or tenements to him descended: Stat. 11 Geo. IV. & 1 W. IV. c. 47, 3, and see stat. 3 W. & M. c. 14, 3. And if in any case there shall not be any heir at law, against whom, jointly with the devisee or devisees, a remedy is thereby given, in every such case, every creditor, to whom by that act relief is so given, shall and may have and maintain his and their action and actions of debt or covenant, as the case may be, against such devisee or devisees solely; and such devisee or devisees shall be liable for false plea as aforesaid." Stat. 11 Geo. IV. & 1 W. IV. c. 47, 8 4.

assigned to them respectively so far as such meanings are not excluded by the context or by the nature of the subject-matter: that is to say, words denoting the singular number are to be understood to apply also to a plurality of persons or things; and words denoting the masculine gender, are to be understood to apply also to persons of the feminine gender; and the word 'person' shall apply to bodies politic and corporate; and the word 'parent' shall include father and mother; and grand-father and grand-mother; and step-father and stepmother; and the word 'child' shall include son and daughter, and grand-son and granddaughter, and step- son and step-daughter."

ought to join in the same action; and if they do not, the defendant may plead in abatement, but cannot otherwise take advantage of the objec

NEW HAMPSHIRE ACT.

SECT. 66. If the life of any person not in the employment of the corporation, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or gross negligence, or by the carelessness of their servants or agents in this State, such proprietor or proprietors, shall be liable to a fine not exceeding five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs, one moiety thereof to go to the widow, and the other to the children of the deceased; but if there shall be no children, the whole shall go to the widow, and if no widow, to his heirs according to the law regulating the distribution of intestate personal estates among heirs. (Laws of 1850, chap. 953, sec. 7.) New Hamp. Comp. Stat. 364, Ed. 1853. Tit. Of Rail Road Corporations, Chapter 150.

MASSACHUSETTS ACT.

An Act Concerning Passenger Carriers.

Liability of carriers when life of a passenger is lost by reason of their negligence, &c. If the life of any person being a passenger shall be lost, by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stage-coach, or of common carriers of passengers; or by the unfitness or gross negligence or carelessness of their servants or agents in this commonwealth, such proprietor or proprietors and common carriers, shall be liable to a fine not exceeding five thousand dollars nor less that five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs; one moiety thereof to go to the widow, and the other to the children of the deceased; but if there shall be no children, the whole to the widow, and if no widow, to the heirs according to the law regulating the distribution of intestate personal estate among heirs. [March 23, 1840.] Supp. to Rev. Stat. Mass. vol. 1 p. 165, Ch. 80, Ed. 1854.

VERMONT ACT.

Sect. 16. Whenever the death of a person shall hereafter be caused by the wrongful act, neglect, or default of any person, either natural or artificial, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable to such action, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as shall amount in law to a felony. (Sect. 1 of No. 8, of 1849.)

Sect. 17. Every such action shall be brought in the name of the personal representative of such deceased person, and the amount recovered in such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, who shall receive the same proportions as provided by law for the distribution of the personal estate of persons dying intestate. (Sect. 2 of No. 8, of 1849.)

Sect. 18. In every such action as hereinbefore provided, the court or jury, before whom such issue shall be tried, may give such damages as they may deem just with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person. Provided, that every such action shall be commenced within two years from the decease of such person. (Sect. 3 of No. 8, of 1849.) Comp. Stat. of Verm. p. 342, tit. 14, ch. 51, ed. 1851.

NEW YORK ACTS.

An act requiring compensation for causing death by wrongful act, neglect, or default. Passed December 13, 1847. Chap. 450, p. 575.

Sect. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

Sect. 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall

tion. (d) And, as wrongs are of a joint and several nature, the plaintiff may proceed against all, or any of the parties who committed them; and

(d) 6 Durnf. & East, 766. 7 Durnf. & East, 279. 5 East, 420. 1 Wms. Saund. 5 Ed. 291, k.

be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action, the jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, provided, that every such action shall be commenced within two years after the death of such person; but nothing herein contained shall affect any suit or proceeding heretofore commenced and now pending in any of the courts of this state. (As amended by chap. 256 of 1849.) Sect. 3. This act shall take effect immediately.

An Act to amend "An Act requiring compensation for causing death by wrongful act, neglect or default," passed December 13, 1847. Passed April 7, 1849, Chap. 256, p. 388. [Sect. 1 amends sect. 2 of chap. 450 of 1847, supra.]

Sect. 2. Every agent, engineer, conductor, or other person in the employ of such company, or persons through whose wrongful act, neglect or default, the death of a person shall have been caused as aforesaid, shall be liable to be indicted therefor, and upon conviction thereof, may be sentenced to a state prison for a term not exceeding five years, or in a county jail not exceeding one year, or to pay a fine not exceeding two hundred and fifty dollars, or both such fine and imprisonment.

Sect. 3. This act shall take effect immediately. Gen. Stat. of N. Y., Blatchford's edition, pages 205, 206.

NEW JERSEY ACT.

An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default.

Sect. 1. Be it enacted by the Senate and General Assembly of the State of New Jersey, That whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

Sect. 2. And be it enacted, That every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person; provided, that every such action shall be commenced within twelve calender months after the death of such deceased person.

Sect. 3. And be it enacted, That on request by the defendant, or the defendant's attorney, the plaintiff on the record shall be required to deliver to the defendant, or to the defendant's attorney, a particular account in writing of the nature of the claim in respect to which damages shall be sought to be recovered.

Sect. 4. And be it enacted, That this act shall take effect immediately. Approved March 3, 1848. P. L. 151, Nixon's Elmer's N. J. Digest, p. 193, 2d Ed. 1855.

PENNSYLVANIA ACTS.

Sect. 1. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.

Sect. 2. Whenever death shall be caused by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for, and recover damages for the death thus occasioned. Act April 9, 1852. P. L. p. 301. Purd. Dig. 608, Ed. 1853.

Sect. 1. The persons entitled to recover damages for any injury causing death, shall be the husband, widow, children, or parents of the deceased, and no other relative; and

it is no plea in abatement, (e) or ground of nonsuit, (f) that there are other partners not named. In bringing actions, by or against husband and wife, the rule is, that whenever the cause of action would survive to or against the wife, they ought in general to sue or be sued jointly ;(g) and this rule holds as well with regard to contracts as wrongs. But sometimes, and particularly where the cause of action arises during coverture, the husband is allowed to bring the action in his own name, or in the joint names of himself and his wife. (h)

The plaintiff has in some cases his election, to bring one species of action or another for the same cause; as in actions upon contracts, he may bring assumpsit or debt upon a simple contract, or debt or covenant upon

a specialty, for the non-payment of money: Or, if the breach [*10] of a simple *contract consists in mis-feazance, he may declare

in assumpsit, or in case on the special circumstances;(a) as for deceit on the sale of cattle or goods, or immoderate use of them, when

(e) Durnf. & East, 649. 2 Chit. Rep. 1, and see 6 Moore, 141. 3 Brod. & Bing. 54. 9 Price, 408, S. C. but see 2 New Rep. C. P. 365. 6 Durnf. & East, 369. 1 Wms. Saund. 5 Ed. 291, e. semb. contra.

(f) 3 East, 62. 6 Moore, 141. 2 Brod. & Bing. 54. 9 Price, 408, S. C. and see 3 Campb. 29. 1 Bing. 143, but see 12 East, 89, 452. 2 Marsh. 485. semb. contra.

(g) 1 Wils. 224. 2 Wils. 227.

(h) For a more particular account of the parties to the action, whether upon contracts or for wrongs, see 1 Wms. Saund. 5 Ed. 291, b. (4). 2 Wms. Saund. 5 Ed. 116, (2), and 1 Chit. Pl. 4 Ed. Chap. I.

(a) 2 Wils. 319. 3 Wils. 348. 1 Durnf. & East, 274. But where the substantial ground of action is contract, the plaintiff cannot, by declaring in case, render a person liable, who would not have been liable on his promise: Therefore, where the plaintiff declared that, having agreed to exchange mares with the defendant, the latter, by falsely warranting his mare to be sound, well knowing her to be unsound, falsely and fraudulently deceived the plaintiff, &c.; it was holden, that infancy was a good plea in bar to the action. 2 Marsh. 485.

the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.

Sect. 2. The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter. Act April 26, 1855. P. L. 309. Purd. Dig. p. 1138.

OHIO ACT.

An act requiring compensation for causing death by wrongful act, neglect, or default. Passed March 25, 1851.

Sect. 1. Damages recoverable for causing death. Be it enacted, &c., That whenever the death of a person shall be caused by wrongful act, neglect, or default; and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.

Sect. 2. Action brought by personal representative. Every such action shall be brought by, and in the name of, the personal representatives of such deceased persons; and the amount recovered in every such action, shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal estates, left by persons dying intestate; and in every such action, the jury may give such damages as they shall deem fair and just, not exceeding five thousand dollars, with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person; provided, that every such action shall be commenced within two years after the death of such deceased person. Curwen's Laws of Ohio in Force, p. 961.

Consult Armworth v. The South-Eastern Railway, 11 Jurist, 758. Blake v. The Midland Counties Railway, 15 Jurist, 562; 10 Eng. Law and Eq., 437, S. C. Canning v. Williamstown, 1 Cushing, 451. Pennsylvania Railroad Company v. McCloskey's Administrators, 11 Harris, 526; 3 Am. Law Reg., 412. Hodges on Railw. 623, 2d Ed. Shelford on Railw. 503, 3d Ed.