Rights founded on contract or duty survive to personal representative. Contracts founded on personal considerations do not survive unless OF CHOSES IN ACTION. SECT. 1.-Of Rights accrued in the Lifetime of the Testator or Intestate. (1) Ex contractu. RIGHTS of action founded upon any obligation, contract, debt, covenant or other duty, including a statutory duty to the deceased (a), survive to the personal representative of the deceased in whom the right was vested (b). And the executor or administrator need not be named in the terms of the contract, in order to transmit to him the right of enforcing it (c). Where, however, personal considerations are of the foundation of the contract, as in cases of principal and agent (√), and master and servant (e), the death of either party puts an end to the relation; and in respect of service after the death, the contract is dissolved, unless there be a stipulation express or e.g., principal implied to the contrary. So also an agreement to compose a work is discharged by the death of the author (ƒ). And in the absence of special agreement the interest of the master in an apprenticeship being an interest coupled with a personal trust cannot be assigned and is determined by his death (g); and on the death of the master an action is not maintainable by an apprentice or pupil for the recovery of any part of the premium paid under the indenture by the apprentice or pupil to otherwise agreed, and agent, master and servant, author and publisher master and apprentice. (a) Peebles r. The Oswaldtwistle (b) See Williams (10th ed.) 604. (e) Farrow r. Wilson, (1869) L. R. (f) Marshall r. Broadhurst, (1831) 1 Tyrw. 348, 349, per Ld. Lyndhurst, and as to the personal nature of a publishing agreement see Stevens . Benning, (1854) 1 K. & J. 168, aff. 6 D. M. & G. 223; Hole r. Bradbury, (1879) 12 C. D. 886; Griffith. Tower Publishing Co., Ld. and Moncrieff, [1897] 1 Ch. 21. (g) Williams (10th ed.) 626. the master, there being in such case only a partial failure of consideration (h). The law relating to parish apprentices is regulated by Rights of Stat. 32 Geo. III. c. 57. An action will lie for an executor or administrator upon a promise made to the deceased for the exclusive benefit of a third party (i). parish apprentices 32 Geo. III. regulated by c. 57. account, An action for an account was given to executors by Action for 13 Edw. I. stat. 1, c. 23; to executors of executors by origin of. 25 Edw. III. stat. 5, c. 5; and to administrators by 31 Edw. III. stat. 1, c. 11. (2) Ex delicto. law. It was a principle of the common law, that if an injury At common was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done (k). But by the Stat. 4 Edw. III. c. 7, de bonis asportatis in vitâ testatoris, which reciting, that in times past, executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators carried away in their life, and so as such trespasses have remained unpunished, enacts, that the executors in such cases shall have an action. against the trespassers, and recover their damages in like manner as they, whose executors they be should have had if they were living. And this remedy is further extended to executors of executors, by 25 Edw. III. stat. 5, c. 5, and to administrators by an equitable construction of the former statute. The Act 4 Edw. III. being a remedial law, has always been expounded largely; and though it makes use of the word trespasses only, has been extended to other cases within the meaning and intent of the statute. Therefore by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury (4) Whincup r. Hughes, (1871) L. R. 6 C. P. 78; Ferns v. Carr, (1885) 28 C. D. 409; Re Thompson, (1848) 1 Ex. 864. () Williams (10th ed.) 621. Effect of Edw. III. as to injury to personal statutes of estate. These statutes do not extend to injuries to the person or the freehold of deceased. Jurisdiction over money done to the personal estate of the deceased in his lifetime, whereby it has become less beneficial to the executor or administrator, as the deceased might have had, whatever the form of action may be (1). But the statute of Edw. III. does not extend to injuries done to the person or to the freehold of the testator. Therefore an executor or administrator shall not have actions of assault or battery, false imprisonment, libel, slander, deceit, nor (unless by virtue of the stat. 3 & 4 Will. IV. c. 42, s. 2, hereafter to be mentioned) for diverting a watercourse, obstructing lights, or other actions of the like kind; for such causes of action still die with the testator (m). An action for defamation either of private character or of a person in relation to his trade comes to an end on the death of the plaintiff, but an action for the publication of a false and malicious statement causing damage to the plaintiff's personal estate, as for instance slander of title to the plaintiff's trade mark, survives (n). So also an action for breach of promise of marriage does not survive unless special damage to the property of the promisee, arising from and within the contemplation of both parties at the date of the promise, can be proved (o). But there is no decision which supports the proposition that because in consequence of injury done to the person the person injured is put to expense the case is brought within the category of cases to which the statute of Edw. III. applies; for instance the personal representative cannot sue, in respect of damage to the deceased's estate, for medical expenses or loss of occupation arising from the tortious injury to the deceased's person (p). Notwithstanding an action is at an end by reason of the death of the plaintiff or defendant and cannot be revived, if action before money has been paid into Court, the Court has jurisdiction on paid into Court in death. (7) Williams (10th ed.) 606, and see Twycross r. Grant, (1878) 4 C. P. D. 40. (m) Williams (10th ed.) 608, and see Twycross r. Grant, ubi sup. () Hatchard v. Mege, (1887) 18 Q. B. D. 771. (0) Finlay v. Chirney, (1888) 20 Q. B. D. 494. (P) Pulling v. The Great Eastern Railway Co., (1882) 9 Q. B. D. 110. the application of the personal representatives of the deceased party to order the money to be paid out to them on showing such grounds as the deceased would have had to show if he had been alive and the action was still in existence (q). By stat. 3 & 4 Will. IV. c. 42, s. 2, after reciting that no remedy is provided by law for injuries to the real estate of any person deceased committed in his lifetime, it is enacted, "that an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased, for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person." It may here be mentioned that damages recovered by personal action in respect of injury to land do not accrue to the inheritance, but are the personal estate of the person who recovered them, and who being tenant for life will belong to him or his personal representative and not to the remainderman (r). The Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93), enacts: "That whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." By s. 2: "Every such action shall be for the benefit of the (q) Brown r. Feeney, [1906] 1 K. B. 563; Maxwell. Viscount Wolseley, [1907] 1 K. B. 274. (r) Noble r. Cass, (1828) 2 Sim. 343. Fatal Accidents Act. wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct." By s. 3: "Not more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of such deceased person" (s). An action can only be maintained by the representative of a deceased person under this Act where that person could, if alive, have himself maintained an action in respect of his injuries against the defendant (t). A father cannot recover, either at common law or under the Act, the funeral expenses of burying an unmarried infant daughter (u). By the Fatal Accidents Act, 1864 (27 & 28 Vict. c. 95), 1864. enables S. 1, if it shall happen that no such action as is mentioned in action, if not the Act 9 & 10 Vict. c. 93 shall within six calendar months brought by executor or after the death have been brought by the executor or adminisadministrator, to be trator, such action may be brought by and in the name of the brought in persons for whose benefit such action would have been, if it names of persons for had been brought by and in the name of the executor or administrator. whose benefit it is. Action under the Act no bar to subsequent action by represen tatives in respect of the estate of deceased. An action by the personal representative under the Act is no bar to an action by the same person in respect of the assets and estate of the deceased, and an admission on the record made in the one action cannot be treated as an estoppel of ($) See Williams (10th ed.) 612 et seq., for cases decided on this Act. (t) Williams r. Mersey Docks and Harbour Board, [1905] 1 K. B. 804. |