fire a blank cartridge as an invitation to A either to fly away or descend, just as a gunboat warns a foreign trawler fishing in prohibited waters by firing a blank shot across the bows of the offending craft. If a blank cartridge had no effect, B should, before actually shooting at the aeroplane, fire ball cartridge past the aeroplane, so that the whistling of the bullet through the air might indicate to A that B was seriously determined to compel him to descend. Having taken the above preliminary steps, in addition to the precaution of engaging a skilled marksman and mechanician to shoot at the offending aeroplane, it may be argued that to fire at A's aeroplane would be neither an act of unnecessary violence, nor for that matter a criminal act at all.

The answer to this argument is that it is a felony punish. able with penal servitude for life, unlawfully and maliciously to shoot (or even attempt to shoot) at a person with intent to maim, disfigure, disable, or do any other grievous bodily harm. Although there may be no intent to maim or disfigure, the object of the shooting is to disable the aeroplane, and there is sufficient mens rea, therefore, to constitute the above felony. It is a misdemeanour, also, punishable with five years' penal servitude, unlawfully and maliciously to wound any person, or inflict any grievous bodily harm upon him and in R. v. Ward1 it was held that a man who fired a gun at a boat with the object of frightening away the occupant, and who wounded him owing to the boat being suddenly slewed round, was rightly convicted of malicious wounding. It does not appear from the report of the case that the prisoner was the owner of the water upon which the boat was, nor that he was enforcing a legal right, but it is not likely that the Courts would draw so fine a distinction between this case and that of an owner protecting his property, and therefore the act of shooting at a trespassing 1 L. R., I C. C. R. 356.

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aviator, or even merely of pointing a gun which the owner knew to be loaded, would be the commission of a criminal offence, and of an act of unnecessary violence.

(b) If the result of the shooting were fatal, the owner would be guilty of manslaughter, even if it is assumed in his favour that no offence under 24 & 25 Vict., c. 100, has been committed.

It is a principle familiar to all that every criminal offence involves the mental condition of a "vicious will" or "intention," and that there must be some form of mens rea, i. e., the wrong-doer must (1) be able to "help doing" what he does, (2) know that he is doing a criminal act, and (3) every sane adult is presumed to foresee and to intend the natural consequence of his conduct. Assuming that the owner has the right to eject trespassers, and that he has used the only force which can under the circumstances be used by him, it would be idle for the owner to argue that he did not know that a fatal accident might result, or that it was impossible to foresee such a contingency arising, or that, taking everything into consideration, such as the care with which he had fired at the aeroplane, and that he had warned the aviator of his intention to shoot, he had not in law intended the natural consequences of his act.

But the opinion has been expressed by Denman, J., in R. v. Prince, that criminal liability may exist even where there is an intention to do some act which is wrong, even although it does not amount to a crime; whilst Bramwell, B., giving judgment in the same case, actually went so far as to say that the intention to commit an act only morally wrong was sufficient mens rea.

However much this latter view may be questioned, it is clear that criminal liability exists where there is an intention to commit a crime, even although it is not the particular crime in fact committed, or where there is an intention

1 L. R., 2 C. C. R. 154.

to do a tortious or wrongful act which yet falls short of a crime. To shoot with fatal result at a trespassing aviator, without warning and without taking precaution, would be manslaughter (assuming always that 24 & 25 Vict., c. 100, does not apply), because the owner intended to commit and did in fact commit an act which was wrong. Neither would the taking of precautions, as suggested above, absolve the owner from liability, since every sane adult is presumed to intend the natural consequences of his conduct, and is assumed by law to have the power of foreseeing these consequences. From whatever point the question is approached, it seems clear that the owner would not be able to enforce his right of ejectment, but would be obliged to rest content with his right of action for damages, or for a declaration, or for an injunction to restrain further acts of trespass.

In view of the present stage of development arrived at by the science of aviation, the writer ventures to suggest that the landowner has at his command all the remedies he requires, and to express the hope that no landlord will be tempted, should he read this article, to institute proceedings for trespass against an aviator merely for flying over the owner's land.

H. G. MEYER.

III.-ACTIONS AGAINST EXECUTORS.

T is proposed in this article to discuss the cases in which

IT

of a deceased person

actions arising out of the conduct of a deceased person survive as against his personal representatives.1 Probably the distinction at Common law between claims that do and those that do not survive against legal personal representatives is that claims for liquidated or ascertained money, or

1 A brief outline of the cases in which causes of action survive to the personal representatives will be found at the end of the article.

anything represented thereby, and claims for damages for breach of covenant or of simple contract, express or implied, involving pecuniary loss to the plaintiff survive, while claims independent of contract for injuries to the person or property of another, resulting in unliquidated and unascertained damages, and claims for breaches of covenant or agreement, not resulting in pecuniary loss, do not survive.

It has, however, been not unusual to say that claims ex contractu survive and claims ex delicto do not. But this classification, while to a greater extent true, involves the necessity of excepting from the first class claims for general damages for breach of promise to marry.1

The classification is moreover open to the objection that actions for debt did not generally survive. The reason was that in most cases of debt the testator, had the action been brought against him, could have “waged” his law, a privilege not granted to his executor. However, the cases of debt in which the defendant could "have his law" were gradually narrowed by the Courts, and finally by the statutes 3 & 4 Will. IV, c. 42, wager of law was abolished (sect. 13), and an action of debt on simple contract allowed to be brought against the executor (sect. 14).

Another exception at Common law arose in the case of an action of account, the reason assigned being that the testator was privy to the matters involved in the account in a way the executor could not be expected to be. Here the Legislature intervened by giving actions of account against executors or administrators (4 & 5 Anne, c. 16, s. 27).

As regards claims in tort, the rule of law protecting the wrongdoer's estate from claims is based on the maxim,

1 It is hardly necessary to notice the exceptions in the cases of contracts involving the exercise of personal skill and contracts expressed to be binding only during the lifetime of the promisor. Damages for breach of a contract of the first-mentioned class committed in the lifetime of the testator can, however, be recovered from his executors. Stubbs v. Holywell Ry. Co. (L. R. [1867], 2 Ex. 311, 313).

Actio personalis moritur cum persona. The maxim, however, seems to be inaccurately expressed. The distinction between real and personal actions had long been known to the law, and an action for breach of contract is as much a personal action as one for injury to the person. It has been suggested, indeed, that the word "personalis" is a misreading for

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poenalis," and there seems much in favour of the suggestion, for in early times the sharp distinction now drawn between criminal and civil proceedings was unknown. Trespass was in some of its aspects a criminal proceeding. This view of the maxim may explain Lord Mansfield's expression, "All private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.” 2

The rule went so far as to require, in cases that came within it, that the action should proceed to judgment in the lifetime of the deceased, but this is now modified by Order XVII, rule 1, which provides that, even if the cause of action does not survive, there shall be no abatement by reason of the death of either party between verdict or finding of the issues of fact, and judgment, and that judgment may be entered notwithstanding the death.

But as civilisation progressed it was impossible that the rule based on the maxim Actio personalis should remain in its pristine simplicity. The cases in which executors could be made liable were considerably increased in number by the operation of the doctrine of quasi-contract, but this extension of liability was accidental, the doctrine having been invented for the purpose of giving further remedies, not against them but against the wrongdoer himself. But as the doctrine operated to transmute a tort into a contract,

1 Pollock on Torts, 8th ed., p. 63, note (d).

2 Hambly v. Trott ([1776], I Cowp., at p. 375). In Viscount Canterbury v. Attorney-General ([1843], 1 Phill., at p. 322), Lord Lyndhurst, L.C., doubted whether a petition of right in respect of a tort survived on the demise of the Crown.

3 Smith v. Eyles ([1742], 2 Atk. 385).