the action is commenced within six months after administration taken up. In claims under the Act it is important to consider whether the act complained of is continuing in its nature.1 Where the claim is out of time, and the injury has involved the acquisition and sale by the deceased of chattel property, such as coal or ore dug and taken away, the executors may be made liable independently of the Statute under the doctrine of quasi-contract above discussed, as indeed they may whether the claim is in time or not. By the Workmen's Compensation Act 1906 the personal representatives of the employer are expressly made liable to claims thereunder, though this extension is probably unnecessary, seeing that the claim under this Act is not based on tort. Neither Lord Campbell's Act (now known as the Fatal Accidents Act 1846), nor the Employers' Liability Act 1880, expressly makes the personal representatives of the employer liable. In the case of the first of these Acts, it is possible that, in the death of the wrongdoer within the year after the death of the person who lost his life through the wrongful act, the executors of the wrongdoer could be sued by the executors of the other person. The Act gives a new remedy, and it may be that the Courts would not apply the old maxim of the Common law to a claim created by recent Statute. Thus in Frankenburg v. Great Horseless Carriage Company, Lindley, M.R., inclined to the view that an action under the Directors' Liability Act survived on the ground that the liability was statutory, and, in Peebles v. Oswaldthwistle U.D.C.,5 the Court held that a right to mandamus to perform the statutory duty to provide sewers survived 1 Jenks v. Viscount Clifden (L. R. [1897], 1 Ch. 694). 2 Powell v. Rees ([1837], 7 Ad. & E. 426). As to the computation of time in a case of conversion, see Richmond v. Nicholson ([1839], 8 Scot. 134). Here the article had not been sold by the deceased wrongdoer, hence the plaintiff could not sue in quasi-contract, but had only the statutory remedy. 3 Beven: Employers' Liability, 4th ed., p. 477, note (a); United Collieries Co. v. Simpson (L. R. [1909]), 1 A. C., 383), since decided. 4 L. R. [1889], I Q. B., at p. 510. 5. L. R. [1896], 2 Q. B. 159. to the executors of the party complaining. (The maxim Actio personalis applies to the party wronged as well as to the wrongdoer.) Doubtless, however, the Legislature in passing Lord Campbell's Act did not give the question of the survival of the action as against the representatives of the wrongdoer a thought, the Act being obviously aimed at railway companies. In the case of the Employer's Liability Act, however, it is conceived that the Common law rule would still apply, seeing that here no new right of action is given, but merely the defence of "common employment" is in certain cases taken away.1 It was not until the year 1611 that it was definitely decided that an action in assumpsit would survive against the executor. The reason lies deep in the history of our law. Originally there was no remedy for breach of a simple contract; the promisee, to be safe, had to take a specialty. The action of assumpsit owes its origin to the Statute of Westminster, and was at first in form an action of trespass on the case, the idea involved being that the defendant had committed a tort by breaking a contractual or other duty voluntarily assumed by him, and when assumpsit had become definitely classed as an action in contract (having become, so to speak, an action of "covenant on the case,") its survival as against the executor naturally followed. And 3 1 Since writing the above I have seen the short report of Gillett v. Fairbank [1887], 3 T. L. R. 618, in which it was decided that the cause of action died with the employer according to the maxim Actio personalis. The report gives no further indication of the reasons for the judgment. It may be of interest to mention that in New Zealand the defence of common employment has been wholly swept away: Workers' Compensation Act 1908, s. 62. The Employers' Liability Act (founded on the English Statute) has been repealed in the Dominion (ib., s. 60) thus leaving the claim to be made either at Common law or under the Workers' Compensation Act. 2 Pinchon's Case, 9 Rep. 86b. See also Wheatley v. Lane, 1 Wms. Saund, 216a. 8 Professor Maitland's Historical note printed in an appendix to Pollock on Torts, 8th ed., p. 565. 4 I have seen assumpsit so described, but cannot recall where. so the executor is liable, as in assumpsit, for the breach by the deceased of his duty as trustee,1 or as an innkeeper or common carrier, and similarly the executors of a deceased incumbent are liable for ecclesiastical dilapidations, the action being founded on the duty which the deceased ought to have performed.2 While the Courts still looked to the form of the action, an executor could not be made liable if the action was framed on the tort, and not on the quasi-contract, but now the Courts look only to the substance of the action.3 It is beyond the scope of this article to make any detailed examination of the cases in which causes of action survive to legal personal representatives, but a few words on this subject may be added. The maxim Actio personalis extends to the case of the person against whom the wrong is done. Relief was however given to executors and administrators by the Statute De Bonis Asportatis and other Acts, measures which were construed so liberally as to give executors a remedy for any injury to the personal estate whereby it became less beneficial, whatever the form of the action might be. Actions of account were given to executors and administrators by Statute, while the Civil Procedure Act 1883, s. 2, gave to them, as well as against them, rights of action in respect of injuries to real estate. The wrong complained of must have happened within six months before, and the action be brought within one year after, the death. It is to be observed that while the Statute gives to executors an action in respect of injuries to the real estates only of their testator, they are made liable for 5 1 Concha v. Murrietta (L. R. [1889], 40 Ch. D., at p. 553). 2 Sollers v. Lawrence [1743], Willes, 413, 421. 8 Kelly v. Rogers (L. R. [1895], 1 Q. B. 944, 946). 4 4 Edw. III, c. 7; 25 Edw. III, st. 5, c. 5; Williams on Executors, 10th ed., pp. 606-608. 5 Westminster II; 25 Edw. III, st. 5, c. 5; 31 Edw. III, st. 1, c. II. 6 Apparently not including leaseholds. See Adam v. Inhabitants of Bristol [1834], 2 Ad. & E. 389, 393, 402, decided under another Act. injuries by their testator to both real and personal estate. On the equitable construction, however, of the Statute De Bonis Asportatis the executor already had an action for injuries to the personal estate. Where the injury to the real estate consists in the severance and removal of things from the freehold, the executor can sue as for an injury to the personal estate, thus avoiding the time limits of the Civil Procedure Act.1 Next, the Fatal Accidents Act 1846 gave an action to the executor (but for the benefit of certain relatives) in cases of death caused by wrongful acts, and lastly, the Employers' Liability Act 1880, and the Workmen's Compensation Act 1906, have provided that claims thereunder shall survive to the personal representatives. A curious point under the latter Act was decided last year by the House of Lords in The United Collieries Co. v. Simpson.2 The claim was by the executor of a person who at the time of the workman's death was the sole living dependant. The claim was allowed on the grounds that the Statute provided a fixed sum and that the action was not based on tort. Lord Macnaghten pointed out that the liability under the Act had no connection with any wrongdoing on the part of the employer. The anomaly of allowing compensation to other than living dependants was pointed out by Lord Loreburn, L.C., and Lord Macnaghten, but their Lordships had of course only to construe the words the Legislature had used. In conclusion, it may be observed that the maxim, Actio personalis moritur cum personâ, seems wholly inapplicable to modern conditions. The reason given for not making the executor liable for torts was that 66 none can tell how they might have been answered or discharged by the testator 1 Salmond on Torts, p. 68, citing Martin v. Porter [1839], 5 M. and W. 351 and Wood v. Morewood [1841], 3 Q. B. 440 n. 2 L. R. [1909], A. C. 383. himself," but with universal education, swift means of procuring evidence, the practice of viewing the uncorroborated evidence of the plaintiff with suspicion, and the simplification generally of procedure, it would be in but rare cases that any injustice would be done to the estate of a deceased wrongdoer by making that estate liable, to the extent of assets, to recompense the person injured, and still less is there any good reason for refusing to the estate of the person wronged a remedy against a living wrongdoer. That this view has to a great extent obtained is shown by the many inroads that have been made upon the maxim both at Common law and by Statute, and by the opinions of Authors of text-books. Sir F. Pollock indeed terms the rule "barbarous" and regrets that the Legislature did not in 1846 abolish it, instead of creating another exception to it by passing Lord Campbell's Act. Is it too late to expect that the Legislature will yet abolish the rule, thereby not only doing away with many cases of hardship and injustice, but at the same time greatly simplifying the law? It is often said that the legal profession, from interested motives, is averse to law reform, but here is a case in which leaders of the profession are unanimous in the desire that an antiquated, anomalous, and unjust rule of law should be repealed, thereby sweeping away at one stroke the whole of the enactments commencing in the reign of Edward I, and the large number of judicial decisions with their finely-drawn distinctions that have grown up around it. But neither the judges nor the profession can do this; the matter is necessarily left to the Legislature. T. F. MARTIN. 1 Bacon's Abr., 7th ed., Vol. III, p. 537. |