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No. 514– Vol. X. NOVEMBER 14, 1846.

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: LONDON, NOVEMBER 14, 1846. | done to the personal estate of the testator in his life

time, whereby it became less beneficial to the executor, It is curious to observe the exceptions which the as the testator himself might have had, whatever the progress of society has caused to be ingrafted on the com- form of action might be, (Latch. 169): trespass or mon-law rule, “ Actio personalis moritur cum persona.” | trover,-action for a false return,—for an escape,-debt The principle of the common law was, that, if any in on a judgment against an executor suggesting a devasjury were done either to the person or the property of tavit,-action for removing goods taken in execution another, for which damages only could be recovered in before the testator (the landlord) was paid a year's satisfaction, the action died with the person to whom rent, and other actions of the like kind, for injuries or by whom the wrong was done. Thus, where the ac- done to the personal estate of the testator in his lifetime. tion was founded on any malfeasance or misfeasance, But neither in terms nor by construction did thes tatute was a tort, or arose ex delicto, such as trespass for of Edward III extend to injuries done to the person or taking goods, &c., trover, false imprisonment, assault to the freehold of the testator: therefore, an executor or and battery, slander, deceit, diverting a watercourse, administrator cannot have actions of assault and batobstructing lights, escape, and many other cases of the tery, false imprisonment, slander, deceit, nor, as the law like kind, where the declaration imputes a tort done stood under that statute, for diverting a watercourse either to the person or the property of another, and the obstructing lights, cutting trees, and other actions of the plea must be not guilty, the rule was “ Actio personalis like kind. moritur cum persona.” The first alteration in this rule The want of a remedy for injuries done to the freewas made by stat. 4 Edw. 3, c. 7, (De bonis asportatis hold of the testator, led to the next statutory alteration in vita testatoris), which, reciting, that in time past ex- of the common-law rule. ecutors have not had actions for a trespass done to their Amongst the various amendments of the law introtestators, as of the goods and chattels of the said tes-duced by the stat. 3 & 4 Will. 4, c. 42, the 2nd section tators carried away in their life, and so as such tres- enacted, that an action of trespass, or trespass on the passes have remained unpunished, enacts, that the case, might be maintained by the executors or adminiexecutors in such cases shall have an action against the strators of any person deceased, for any injury to the trespassers, and recover their damages in like manner as real estate of such person, committed in his lifetime, they whose executors they be, should have had if they for which an action might have been maintained by were living. The remedy above given was extended such person, so as such injury shall have been commitby the stat. 25 Edw. 3, c. 5, to executors of executors; ted within six calendar months before the death of and, by an equitable construction of the first statute, to such deceased person; and provided such action shall administrators. This statute, indeed, being a remedial be brought within one year after the death of such perlaw, has always been expounded largely, and, though it son; and the damages, when recovered, shall be part of makes use of the word “ trespasses” only, has been ex- the personal estate of such person. Ind, further, What tended to other cases within its meaning and intent. an action of trespass, or trespass on the case, nuagate By the construction put upon it, an executor or ad maintained against the executor Jlministrate .. ministrator might have the same actions for any injury any person deceased, for any wr. tatted by biw Vol. X.

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in his lifetime to another, in respect of his property, shall have been caused; that the jury may give such real or personal, so as sueh injury shall have been damages as they may think proportioned to the injury committed within six calendar months before such per- resulting from such death to the parties respectively son's death, and so ds such action shall be brought for whom and for whose benefit the action shall be within six calendar months after such executors or ad- brought; and that the amount recovered shall be diministrators shall have taken upon themselves the ad-vided amongst those parties in such shares as the jury, ministration of the estate and effects of such person. by their verdict, shall find and direct. · We presume, But actions for injuries to the person remained subject that, in estimating the damages, the jury will be exto the common-law rule, “ Actio personalis moritur cum pected to take into consideration the pecuniary injury persona.” The executors of a deceased person could the parties have received. Now, it may often happen, not bring an action for the most grievous injury to that the parties for whose benefit the action is allowed him; and the strictness of the rule led to the anomaly, to be brought have sustained no pecuniary injury whatthat, if a person received an injury through the default ever—that has fallen upon others. Is the wrongdoer or negligence of another, which stopped short of causing in such a case to have the benefit of it? Suppose, for his death, he might bring an action and recover ample instance,—what will, no doubt, be very common,--the damages; but if the injury was so great as to produce death of a person whose life is insured. In a pecuniary death, all right of action was gone, and no damages could point of view, this would be a benefit to the parties for be recovered. This state of the law had been often com- whom the action might be brought, and, therefore, that plained of, but would probably have remained unaltered element of the damages ought to be excluded. But the had not railway travelling furnished examples, too insurers, who really sustain that portion of the injury, striking to be passed over, of its repugnance to common cannot bring an action, or recover any damages. sense and justice. Accordingly, the Legislature has, in Many similar cases might be put, in all of which the the last session, in conformity with the laws of most

action allowed by this act will fail of doing justice to

those who are really injured. It seems to us to affori foreign countries, made a further encroachment on the hut

but a very imperfect remedy for the defect hitherto es common-law rule, in the “ Act for compensating the listing in the law; and we venture to think that the Families of Persons killed by Accidents.” This act simplest and boldest course would have been the bestrecites, that no action at law was maintainable against to give to executors and administrators a right of action a person who, by his wrongful act, neglect, or default. | in such cases, and direct that the damages recovered may have caused the death of another person, and it is

d it is should be considered part of the personal estate. oftentimes right and expedient that the wrongdoer in such case should be answerable, in damages, for the

COURT OF EXCHEQUER. injury so caused by him; and enacts, that, whensoever

MICHAELMAS TERM.-10 VICTORIÆ.—Nov. 12. the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is This Court will hold Sittings on Friday the 27th and such as would (if death had not ensued) have entitled Saturday the 28th days of November instant, and also

on Wednesday the 2nd day of December next, and the the party injured to maintain an action and recover da

three next following days, and also on Saturday the mages in respect thereof, then and in every such case 12th day of December next, and will proceed in disthe person who would have been liable if death had posing of the business then pending in the Special not ensued shall be liable to an action for damages, not- Paper.

BY THE COURT. withstanding the death of the person injured, and al-! Read in open Court.-E. BENNETT. though the death shall have been caused under such circumstances as amount in law to a felony. Having LIST OF SHERIFFS NOMINATED BY THE thus resolved to destroy the principal relic of the com LORDS OF THE COUNCIL FOR 1847. mon-law doctrine, it would have been well, we think. if the Legislature had simply directed that the damages Bedfordshire.- Robert Newland, Esq., Kempston. recovered in the action should form part of the personal

Thomas Abbott Green, Esq., Pavenham. estate of the person injured, in the same manner as any Berkshire.-Wm. Henry Stone, Esq., Streatley House.

Richard Gilpin, Esq., Hockliffe Grange. other damages recovered by an executor. There seems

John Hopkins, Esq., Tidmarsh. no sound reason why the compensation for the death of

Robert Allfrey, Esq., Wokefield Park. a person should not be applied in the same manner and

Buckinghamshire.--The Baron Meyer Amschel de Roth.

schild, Mentmore. for the same objects as the fruits of his industry would

William Lowndes, Esq., The Bury, Chesham.. have been if he had lived-why his creditors should not

John Kay, Esq., Fulmer. bave the same claim upon the former as they would Camb. and Hunt.-Robert Francis Pate, Esq., Wisbeach. have had upon the latter,-or why the one should not be

John Vipan, Esq., Sutton.

Wm. Whiting, Esq., Manea and Thorney Abbey. as much within his disposition by will as the other. Cheshire.-Ralph Gerard Leycester, Esq., Toft Hall. But the Legislature appears to have been startled at

Henry Brooke, Esq., Grange. the boldness of its infringement upon the common-L

Thomas Wm. Tatton, Esq., Withenshaw. law, and to have wished to call to its assistance the

Cornwall.-Nicholas Kendall, Esq., Pelyn.

Sir Wm. Pratt Call, Bart., Whiteford House. softer feelings of our nature. What it hesitated to William Daubuz, Esq., Killiou. grant to the claims of strict justice, it thought grace- Cumberland.-Gilfrid William Hartley, Esq., Rose Hill. fully to yield to those of kindred and affection. It

Henry Dundas Maclean, Esq., Lazonby. has therefore, introduced an anomalous kind of action, | Derbyshire.-John Bell Crompton, Esq., Milford.

Andrew Fleming Hudleston, Esq., Hutton-John. by providing that it shall be for the benefit of the wife,

Sir Robert Burdett, Bart., Foremark. husband, parent, and child of the person whose death |

Jedediah Strutt, Esq., Belper.

Devonshire.--Sir J. P, B. Chichester, Bart., Arlington Court. Wiltshire.--Wadham Locke, Esq., Ashton, Gifford House.
Henry Champernowne, Esq., Dartington.

Sir Francis Dugdale Astley, Bart., Everley.
Henry Richard Roe, Esq., Guaton House.

John Bird Fuller, Esq., Neston House.
Dorsetshire.-Thomas Bowyer Bower, Esq., Iwerne Minster. | Worcestershire.-Edw. Gresley Stone, Esq., Chambers-court.
H. J. Reuben, Earl of Portarlington, Milton Abbas.

Joseph Frederick Ledsam, Esq., Northfield.
John Gooden, Esq., Over Compton.

James Moilliet, Esq., Selly Hall.
Durham.-John Fawcett, Esq., South Bailey.

Yorkshire.- George Lane Fox, Esq., Bramham Park,
Sir Wm. Eden, Bart., Windleston Hall.

Joseph Dent, Esq., Ribston Park.
Henry John Spearman, Esq., Newton Hall.

Yarburgh Greame, Esq., Sowerby.
Essex.-Wm. Coxhead Marsh, Esq., Park Hall, Thoydon
Garnon, Epping.

WALES.
Beale Blackwell Colvin, Esq., Mangham's Hall, / Anglesey.--The Right Hon. Spencer Bulkeley, Lord New-
Waltham Holy Cross.

borough, Treiddon.
Charles Preston, Esq., Luthers, near Sewardstone.

Sir Harry Dent Goring, Bart., Trysglwyn.
Gloucestershire.-Wm. Edwards Lawrence, Esq., Greenway

Richard Griffith, Esq., Bodowyr Isaf.
House, Badgeworth.

Breconshire.-Rhys Davies Powel, Esq., Graig-y-Nos.
Charles Greenaway, Esq., Little Barrington.

Penry Williams, Esq., Cefn Parc.
Thos. Barwick Lloyd Baker, Esq., Hardwick Court.

William Pearce, Esq., Ffrwdgrech.
Herefordshire.—Thomas Hill, Esq., Felton.

| Carnarvonshire.—Thomas Wright, Esq., Derwen-fawr. Sir Velters Cornewall, Bart., Moccas.

George Augustus Huddart, Esq., Brynkir.
Robert Maulkin Lingwood, Esq., Lystone.

William Henry Foley, Bryn Eryr.
Hertfordshire.-H. Harper Burchell, Esq., Bushey Grange.

Carmarthenshire.-Seymour Phillipps Allen, Esq., Kencerd.
William Parker, Esq., Ware Park.

Thomas Morris, Esq., Greencastle.
Fulke Southwell Greville, Esq., North Mimms Park.

Sir James Cockburn, Bart., Ddobgwm.
Kent.-John Pelly Atkins, Esq., Halstead.

Cardiganshire.—Alban Thomas Davies, Esq., Tyglyn. John Ashley Warre, Esq., Ramsgate.

Abraham Grey Harford Battersby, Esq., Peterwell. William John Evelyn, Esq., St. Clair.

Matthew Davies, Esq., Tanybwlch. Leicestershire.-William Wootton Abney. Esa.. Swepstone. Denbighshire.-R. Lloyd Edwards, Esq., Bronhaulog Abergele. Henry Freeman Coleman, Esq., Evington Hall.

Richard Jones, Esq., Belham Place, Rhuabon. John Goodacre, Esq., Lutterworth.

Christ. Leyland, Esq., Nantclwyd Hall, Ruthin. Lincolnshire.-Theophilus Fairfax Johnson, Esq., Spalding.

Flintshire.-Llewelyn Falkener Lloyd, Esq., Nannerch.
Richard Ellison, Esq., Sudbrooke Holme.

Sir William Henry Clerke, Bart., Mertyn.
James Whiting Yorke, Esq., Walmsgate.

John Whitehall Dod, Esq., Cloverley.
Monmouthshire.-C. J. Kemeys Tynte, Esq., Cefnmably.

Glamorganshire.-Thomas Wm. Booker, Esq., Velindra. William Mark Wood, Esq., Romney.

Nash Vaughan Edwards Vaughan, Esq., Rheola. John Jones, jun., Esq., Llanarth Court.

Rowland Fothergill, Esq., Hensol Castle. Norfolk -Wyrley Birch, Esq., Wretham.

Montgomeryshire.-Edward Gatacre, Esq., Nantymeichied.
Sir Jacob H. Preston, Bart., Beestone St. Lawrence.

Christopher Bullin, Esq., Brynllwyarch.
William Mason, Esq., Necton.

John Vaughan, Esq., Penmaen Dovey.
Northamptonshire.--Thomas Tryon, Esq., Bulwick Park.

| Merionethshire.-J. Griffith Griffith, Esq., Faitreuddyn-fawr. John Monckton, Esq., Fineshade Abbey.

Hugh Jones, Esq., Gwernddelwa.
The Hon. Henry Hely Hutchinson, Lois Weedon.

Robert Davies Jones, Esq., Cyfronydd.
Northumberland.-J. H. Hollis Atkinson, Esq., Angerton.

Pembrokeshire.—Thomas Davies Lloyd, Esq., Kilehew.
George Burden, Esq., Hedden House.

William Henry Lewis, Esq., Clynfiew.
William Hodgson Cadogan, Esq., Brinkburn Priory.

Owen Owen, Esq., Cwm Gloyn.
Nottinghamshire. -John Vere, Esq., Carlton-upon-Trent.

di CartonnnonTrent Radnorshire.-John A. Whittaker, Esq., Newcastle Court. John Wetham, Esq., Kirklington.

John Williams, Esq., Skreen.
John Henry Manners Sutton, Esq., Kelham.

Henry Miles, Esq., Downfield.
Oxfordshire.-Samuel Weare Gardiner, Esq., Coombe Lodge,

Whitchurch.
Matthew Piers Watt Boulton, Esq., Great Tew.

London Gazettes.
Henry Baskerville, Esq., Crowsley Park.
Rutlandshire.-Inchley Taylor, Esq., Preston.

TUESDAY, NOVEMBER 10.
John Walker, Esq., Wardley.
The Hon. Charles George Noel, (commonly called

BANKRUPTS.
Lord Viscount Campden), Flitteris Park. WILLIAM TROWBRIDGE, Lawrence-lane, London,
Shropshire.-Joseph Venables Lovett, Esq., Belmont.

woollen draper, dealer and chapman, Nov. 20 at half-past Sir Edward Blount, Bart., Mawley Hall.

12, and Dec. 19 at 2, Court of Bankruptcy, London: Off. John Salway, Esq., The Moor.

Ass. Whitmore; Sol. Wollen, 30, Bucklersbury.- Fiat Somersetshire.-J. M. Quantoch, Esq., Norton-sub-Hamdon. dated Nov. 7.

Edward Ayshford Sanford, Esq., Nynehead-court. DAVID PATTIE, St. Alban's-place, Edgeware-road, Mid.
Sir C. Abraham Elton, Bart., Clevedon.

dlesex, stationer, dealer and chapman, Nov. 18 at half-past Staffordshire.- Sir E. Dolman Scott, Bart., Great Barr. 11, and Dec. 19 at half-past 1, Court of Bankruptcy, Lon. The Hon. Frederick Gough, Perry Barr.

don: Off. Ass. Alsager; Sol. Swan, Eldon-chambers, DeCharles Arkwright, Esq., Dutistall.

vereux-court, Temple.--Fiat dated Nov. 7. Southampton.-Lancelor Archer Burton, Esq., Woodlands WILLIAM ALLEN, Wheeler-st., Spitalfields, Middlesex, Emsworth.

scaleboard manufacturer and stationer, Nov. 19 at 11, and John Wood, Esq., Thedden Grange, Alton.

Dec. 18 at 1, Court of Bankruptcy, London: Off. Ass. William Garnier, Esq., Rooksbury, Wickham.

Pennell: Sol. Roberts, Temple-chambers, Falcon-courtSuffolk.-Henry James Oaks, Esq., Nowton Court.

Fiat dated Nov. 7.
Thomas James Ireland, Esq., Vusden Hall. | HENRY GODFREY, Milton-next-Gravesend, Kent, builder

Charles A. Lord Huntingfield, Hivengham Hall. and undertaker, dealer and chapman, Nov. 18 at 2, and Surrey.-Joseph Bonson, Esq., Poulsden.

Dec. 18 at 12, Court of Bankruptcy, London: Off. Ass. F. Boyle Shannon Wilder, Esq., Busbridge Hall. Belcher; Sol. Buchanan, Basinghall-street, London.---Fiat Lee Steere, Esq., Jayes, Dorking.

dated Nov. 6. Sussex.-W. Gratwicke Kinleside Gratwicke, Esq., Ham. THOMAS WYATT, Oxford.terrace, King's-road, Chelsea,

Sir S. Branthwaite, Bart., Peckham Micklethwaite. Middlesex, builder, timber merchant and coal agent, dealer
Sir Henry Shiffner, Bart., Coombe.

and chapman, Nov. 26 at 12, and Dec. 18 at 2, Court of Warwickshire.-W. C. Russell, Esq., Leamington Priors. Bankruptcy, London: Of. Ass. Edwards ; Sols. Bruner, George Whieldon, Esq., Springfield House.

Oxford; Spencer, Verulam-buildings, Gray's-inn.- Fiat Thomas Dilke, Esq., Maxtoke Castle.

dated Nov. 9.

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