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plaintiff, a married woman, was injured whilst a passenger on the defendants' railway through their negligence. For this injury, her husband and she brought an action in their joint names. During the pendency of this action the husband died. A suggestion of his death was entered on the record, and the action proceeded with in the name of the wife alone. At the trial, the only question of damage inquired into was that accruing to her personally, and for that she recovered a verdict. She, then, as executrix of her husband, brought a second action against the defendants, to recover the amount of damage to the estate of her husband in his lifetime, by reason of the personal injuries suffered by her, his wife. It was held that this second action was maintainable by the plaintiff as executrix of her deceased husband.
Now, what were the causes of action respectively relied on? In the former of these actions the cause of action was the defendants' negligence causing personal injuries to the female plaintiff, and husband and wife had to be joint plaintiffs, because the wife could not at that time sue alone; the husband's name must accordingly be joined with hers for conformity. But, of the second action the gist was the loss to the husband of the comfort and society of his wife; and in this action the husband, had he survived, would have been sole plaintiff. He complained of an injury to, or interference with, those rights of property which the law gave him in the society and assistance of his wife, alleging as special damage the expense to him of restoring her to her former state. Keating, J., likened it to a case of injury to a dog or a horse of the testator ; and Quain, J., who in Leggott v. Great Northern Railway Company (L.R. 1 Q.B.D. 599), so strongly dissented from the principle laid down in Bradshaw v. Lancashire and Yorkshire Railway Company (L.R. 10 C.P. 189), was party to the judgment in Potter's case. It was, therefore, on the ground of direct injury to the testator's property, and not of merely consequential injury to his property flowing from a
personal injury to himself, that the action was held to survive to the executrix. The personal injuries sustained by the wife formed no part of the cause of complaint in the husband's action, because if the wife were merely abducted so that he was deprived of her society, he would equally be entitled to maintain an action on his own behalf against the abductor, whilst, on the other hand, an assault upon the wife which did not end in loss to the plaintiff of the comfort and society of his wife would not support an action by him as sole plaintiff. [See Norris v. Seed (3 Exch. 782), and Young v. Pridd (Cro. Car. 89).]
So, in Dengate v. Gardiner (4 M. & W. 5), which was a case of slanderous words (which were actionable in themselves) spoken of the female plaintiff, it was held that the wife must join, because she was the party slandered, and the husband must join for conformity ; but, as the profit of her wages was entirely his, he alone could sue for the loss of them. “Just as"-says Lord Abinger, C.B., in his judgment in that case“ in trespass by husband and wife for assault on the wife, the surgeon's bill cannot be recovered. The right of action would not survive to her." It would not, he means, survive to her personally, because it never formed part of her cause of action, and must have been recovered in a separate action by the husband alone, but, as shown by Potter's case, it could be recovered by the husband's executor, as special damage affecting his personal estate. So essentially distinct are these separate actions arising out of injuries to a married woman, that prior to the Common Law Procedure Act, 1852, husband and wife could not recover their separate damages in the same action. The 40th section of that Act enables them to do so; but still an action by husband and wife for injuries to the wife is no bar to a separate action by the husband for loss of service, etc. [See Brockbank v. Whitehaven Function Railway Company (7 H. & N. 834).]
Springing out of the relationship of master and servant
we also find those separate and distinct rights against a wrongdoer. Thus, in Mary's case (9 Rep. 113), we find this passage explaining the distinction :-"And, therefore, if my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself for every small battery shall have an action: and the reason of the difference is this, that the master has not any damage by the personal beating of his servant, but by reason of a 'per quod, viz. per quod servitium, etc., amisit; so that the original act is not the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action."
Those who argue in favour of the survival of such a cause of action as that in Bradshaw's case, also rely upon a dictum in Knight v. Quarles (2 Brod. & Bing. 102), which is quoted by Willes, J., in Alton v. Midland Railway Company (19 C.B. N.S. 213). It is to be observed, however, that this dictum, as appears from the fuller report of Knight v. Quarles, in 4 Moo. 532, was not an expression of opinion by the full court, but only of the junior of the four judges constituting the court-Richardson, J. It is as follows: “If a person contracts with a coach proprietor to be safely and securely carried from one place to another, and through the negligence of the servant of such proprietor the coach be overturned, in consequence of which the passenger so contracting dislocates or fractures a limb, and, owing to his confinement in procuring a cure, his personal property sustained an injury, although he, during his lifetime, might sue the proprietor in assumpsit or tort, still his representative may maintain an action on the contract, after his death, to carry him safely, and recover damages for the injury which had accrued to his estate from the breach thereof." But in the case there put an express contract is assumed; and the dictum seems to come to no more than this, that whereas the passenger
himself might at his option either declare upon the express contract without any reference to negligence, or, in the alternative, throw overboard his contract, and rely simply upon the negligence, yet his representative could only bring an action upon the express contract, into which the element of negligence would not enter at all. Such an action might be within the general rule, enabling executors or administrators to sue at common law in respect of a breach of contract committed in the lifetime of a contractee. This was the sense in which Willes, J., understood the dictum ; for, after quoting it, he proceeds: “The action was there held to be sustainable at common law, because the substance of the matter was contract.” And in another part of his judgment in Alton v. Midland Railway Company (supra), which was an action for the loss of the services of the plaintiff's servant by reason of injuries sustained by him through the negligence of the defendants, Willes, J., says: “ This is a case in which there could have been no duty but for the contract to carry safely in consideration of a certain payment. The passenger purchases the duty which the law says arises out of the contract: and he has his election to sue upon the contract, or for the breach of the duty founded on the contract. I will cite one authority for the purpose of illustrating this part of my judgment. I asked, in the course of the argument, if the executor could sue upon such a contract as this, and Mr. Keane said he thought not. I am disposed to think the answer given right: it is probably like a promise of marriage which, not being within the statute 4 Edw. III. c. 7, moritur cum persona. But suppose the personal estate of the servant sustained injury through the defendants' breach of duty, as if he had taken a quantity of luggage with him which had been lost or damaged, it is clear his executor might have sued for that damage."
Upon the grounds, therefore, that (1) it is an action on the case, and not, in substance, one of contract, (2) the cause of
action is not one itself affecting property, and (3) the damages recoverable are not special damage constituting a cause of action, but merely consequential damage following injury to the person, it is submitted that such an action cannot be maintained by an executor.
G. D. KEOGH.
IV.-IS THERE A FASHODA QUESTION ?
'HERE is a peculiarly attractive title of the Civil Law,
which deals with the subject of the acquisition of property by occupation. Things which belonged to no onesuch were, in the Roman system, precious stones on the seashore, wild animals, and the property of enemies —the casual first-comer could appropriate and hold by the valid title of occupatio. As, to enjoy the titles and benefits of his position, a king of France had only to take the trouble to be born, so the subject of occupation lay vacant, and the fortunate finder needed only to put forth a willing hand and take it. Oddly enough, although the Roman jurists considered this mode of acquiring property so simple and natural as to entitle it to rank as part of the apparatus of legal conceptions, which was common to the civilized world, it occupies only a very small space in the thoughts of an English jurist. Indeed, so far as real property is concerned, there is hardly any such thing as a title by occupation; and institutional writers are forced to fall back, for an instance of its occurrence, upon the highly special case of an estate granted to A for the life of B. In such circumstances, it was anciently the rule, that if A predeceased B, any person whatever who could get possession of the land, was entitled to retain it until B's death, which was termed obtaining a title by “general occupancy.” This kind of title to land, which must have been productive of not a few