the objection to an executor being sued in tort disappeared, as regards those kinds of tort to which the doctrine applied. The cases to which the doctrine did apply were those in which the tort resulted in the acquisition by the wrongdoer of money at the expense of the plaintiff. Thus where goods were converted and sold the plaintiff could elect to waive the tort and sue the defendant for the proceeds of the sale on an implied contract of agency, the defendant being treated as having been commissioned by the plaintiff to sell the goods for him and to account for the price, and not being allowed to set up his own wrong in defence. Moreover, the rule is said to be beneficial to the defendant, in that the damages in tort might be vindictive and not limited to the value of the property concerned, and that a set off could be allowed in the action in contract but not in tort.1 Where, therefore, a testator could have been sued in quasicontract the cause of action survives as against his executor, coming, as it does, into the class of actions ex contractu.

3

While the typical case of quasi-contract is that of the conversion and sale of goods, the doctrine has been extended (on the dictum of Lord Mansfield) to the case of recovering the hire of a horse wrongfully taken and used by the defendant, and to two cases for recovery of the wages of an apprentice enticed from his master's service and employed in the service of the defendants. The latter of these two cases was decided by Lord Ellenborough expressly on Lord Mansfield's dictum, and upon the earlier of the cases, decided by Sir James Mansfield, Chief Justice of the Common Pleas,* Lord Ellenborough, however, followed these authorities with considerable reluctance, saying: "I must confess that I do 1 Lightly v. Clouston ([1808], 1 Taunt., at pp. 114, 115); Foster v. Stewart ([1814], 3 M. & S., at p. 202).

2 Hambly v. Trott, supra, at p. 375.

8 Lightly v. Clouston, supra, 112; Foster v. Stewart, supra, 192.

• Erroneously referred to as Lord Mansfield in the judgment in Phillips v. Homfray, 24 Ch. D., at p. 462.

not accede to them with the same conviction that I do to many others." 1

Sir James Mansfield, indeed, influenced perhaps by the strong argument of Serjeant Best concerning the "pernicious tendency to more largely extend this form of action," went still further, and thought it would have been " 'better for the law to have kept its course" even as regards cases of conversion.

It will be noticed that whereas a plaintiff suing in quasicontract in the lifetime of the wrongdoer had to waive the tort, yet upon his death the action automatically became one of contract, as the executor would not be sued in tort.

In the attempted classification given at the beginning of this article, it is said that the claims that survive as against the personal representatives are (in addition to claims for pecuniary loss by breach of contract) claims for liquidated money or anything represented thereby. But this money, or what is represented by it, must have been acquired as such by the testator, his estate being increased, or deemed increased, thereby. In other words, the testator must have taken or otherwise acquired money or money's worth from the defendant. If the defendant has merely injured the person or property of the defendant no claim survives. The fact that the testator derived some benefit from the injury does not make his executor liable if the benefit is not in the nature of the acquisition of property. If I assault a man, or cut down his trees and leave them on his land, I do him an injury, but with no corresponding benefit to myself, leaving out of question the satisfaction of any feelings of revenge or retaliation of which the law does not take account. If I, being a tenant for life, plough up ancient meadow land, or if I use another man's roads, I may gain a benefit, but that benefit does not involve the acquisition by me of property. But if I cut down and take away another's trees, or dig

13 M. & S., at p. 199.

out and take coal from his mines, or take and consume articles of food belonging to him, I not only do him an injury, but I acquire property of his the value of which can be fixed. This is the rule at Common law, and there is no equitable doctrine modifying it. And it may be said generally, that wherever a contract can be implied by law, and the plaintiff has suffered pecuniary loss by its breach, the cause of action will survive against the executor of the wrongdoer. Thus, executors are liable for loss occasioned for the wrongs of innkeepers and carriers, for breaches of implied contracts of indemnity,3 and for breaches of obligations to repair buildings imposed by a devise or by law."

6

The following cases have a close bearing upon the working of the rule we have been discussing. In each of them damage was done to the personal estate of the plaintiff, yet that damage did not take the form of the acquisition of property by the deceased wrongdoer. Thus, in Peek v. Gurney it was held, following Hambly v. Trott, that the estate of a deceased director was not liable in respect of misrepresentations made by him in a prospectus, his estate not having been alleged or proved to have received benefit from the misrepresentations; and in Re Duncan (an administration action) the deceased's estate was held not to be liable for damages for a misrepresentation under which the plaintiff purchased from him certain shares, the damages being none the less unliquidated because they might amount to the purchase-money paid for the shares.

1 See Phillips v. Homfray ([1883], 24 Ch. D. 439), the leading case on the subject. Baggallay, L.J., dissented from the judgment, not adopting the distinction between torts involving accretions to property and those by which the deceased's estate is otherwise benefited. Pp. 471, 476.

2 Ibid., p. 463.

8 As to indemnity, see Ramskill v. Edwards ([1885], 31 Ch. D. 100); Jackson v. Dickinson ([1903], I Ch. 947).

4 Woodhouse v. Walker ([1880], 5 Q. B. D. 404).

5 Batthyany v. Walford ([1887], 36 Ch. D. 269), involving Austrian law.

6 L. R. [1873], 6 H. L. 377, 393.

7 L. R. [1899], I Ch. 387.

The point whether executors can be made liable under the Directors' Liability Act 18901 was raised, but not decided, in Frankenburg v. Great Horseless Carriage Company,2 Lindley, M.R., suggesting that there might be a statutory liability to which the maxim Actio personalis does not apply. But in Shepheard v. Bray3 it was held that a director who has paid compensation under this Act is entitled to contribution from the estate of a co-director, who also would have been liable had he lived, the Statute providing that the contribution shall be recoverable "as in cases of contract" (sect. 5).

It seems convenient here to say that in Phillips v. Homfray, Bowen and Cotton, L.JJ., expressed the opinion that the fullest extent to which the doctrine of waiving a tort and suing in contract can be carried, was that a plaintiff could waive the tort and sue in contract "where independently of the question of wrong the plaintiff could make a case for relief." 4

The case of an action for breach of promise to marry has already been referred to as forming an exception to the classification as between contract and tort. This action can be cited in favour of the classification suggested in this article. For the deceased promisor has not in general acquired as a consequence of his breach of contract any property belonging to the promisee, nor has the promisee suffered any pecuniary loss by the breach. Yet if special damage to the property of the promisee can be shown, the cause of action survives as regards that special damage. But it is necessary to allege the special damage in the Statement of Claim, as otherwise the action is on its face not maintainable. 5

1 Now incorporated in the Companies (Consolidation) Act 1908, s. 84. 2 L. R. [1900], I Q. B. 504. 3 L. R. [1906], 2 Ch. 235. 24 Ch. D., at p. 461. 5 Finlay v. Chirney [1888], Q. B. D. 494. The purchase by the plaintiff of her trousseau was held not to come within special damage. "The lady still has the clothes," said Lord Esher, M.R. (p. 501). Bowen, L.J., however, with more gallantry, left the door open for a possible claim under this head (p. 508).

It is now proposed to briefly examine the case of an action against executors for the use and occupation of land. An action for use and occupation can be brought, even as against the testator himself, only if the circumstances imply, or are not inconsistent with the implication of, an agreement to pay for the use and occupation. If the circumstances show a mere trespass, and much more so if they show a claim to adverse possession, the action is in tort and will not survive. This seems inconsistent with the cases as to conversion and sale of goods, and other cases above referred to, where a promise to pay is implied though all the circumstances negative one. The explanation may be that the judges were more conservative with respect to real property than to mere chattels, or that the cases in which justice called for the invention of the quasicontract remedy affected principally personal property. In order, however, to make executors liable there must have been, not only a contract to pay rent, but also the actual receipt by the testator in some shape or form of rent, or something representing rent, which can be re-captured from his estate.3

At Common law there was no remedy against legal personal representatives for a wrong done to real or personal estate any more than for one done to the person, but by the Civil Procedure Act 1833 (3 & 4 Wm. IV, c. 42), sect. 2, executors and administrators are made liable for injuries done by their testator to real or personal estate, provided the injury is done within six months before the death and

1 Churchward v. Ford ([1857], 2 H. & N. 446). A landlord having recovered in ejectment cannot sue for use and occupation in respect of rent accruing after the date of a writ, for, having elected to treat the defendant's act as a tort, he cannot sue in contract.

2 For a strong case of implying a promise to pay in face of evidence that the defendant did not intend to pay, see Rumsey v. N. E. Ry. Co. ([1863], 14 C. B., N. S., 641, 650).

8 See Phillips v. Homfray, supra, at p. 455, as to liability of executors for rents and profits of land.