ment and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper con

155; Craig v. Sedalia, 63 Mo. 417; McDonough v. Virginia City, 6 Nev. 90; Alton v. Hope, 68 Ill. 167; Mayor of Rome v. Dodd, 58 Ga. 238; Hutchinson v. Olympia, 2 Wash. St. 314; Waldron v. Haverhill, 143 Mass. 582; Flanders v. Norwood, 141 Mass. 17; Saulsbury v. Ithica, 94 N. Y. 27; 46 Am. Rep. 122; Kellogg v. Janesville, 34 Minn. 132; Shippy v. Am. Sable, 85 Mich. 280; 48 N. W. Rep. 584; Higgins v. Glens Falls, 57 Hun, 594; 11 N. Y. S. Rep. 289; Flora v. Maney, 31 Ill. App. 493; 26 N. E. Rep. 645; McDonald v. Ashland, 78 Wis. 251; 47 N. W. Rep. 434; Kinney v. Tekamah, 30 Neb. 605; 46 N. W. Rep. 835; Denver v. Dunsmore, 7 Colo. 328; Bleazan v. Mason City, 58 Ia. 233; Hand v. Brookline, 126 Mass. 324; Clark v. Epworth, 56 Ia. 462.

Lights: excavations. Seneca Falls v. Zalinski, 15 N. Y. Supreme Ct. 571; Randall v. Eastern R. Co., 106 Mass. 276; Groves v. Rochester, 39 Hun, 5; Gaskins v. Atlanta, 73 Ga. 746; Monongahela City v. Fischer, 111 Pa. St. 9; 56 Am. Rep. 317; Lyon v. Cambridge, 136 Mass. 419; Alexander v. Big Rapids, 76 Mich. 282; 42 N. W. Rep. 1071; Dooley v. Sullivan, 112 Ind. 451; 14 N. E. Rep. 566; McAllister v. Albany, 18 Oreg. 426; 23 Pac. Rep. 845; McCoull v. Manchester, 85 Va. 579; 8 S. E. Rep. 379; Birmingham v. Lewis, 92 Ala. 352; 9 So. Rep. 243; Powers v. Boston, 154 Mass. 60; 27 N. E. Rep. 995; South Omaha v. Cunningham, 31 Neb. 316; 47 N. W. Rep. 930; Hamford v. Kansas City, 103 Mo. 72; 15 S. W. Rep. 753; Keating v. Cincinnati, 38 Ohio St. 141; 43 Am. Rep. 421; Wilson v. Wheeling, 19 W. Va. 323; 42 Am. Rep. 780.

Sewers. Wendell v. Mayor of Troy, 4 Abb. App. Dec. 563; Van Pelt v. Davenport, 42 Ia. 308; Ashley v. Port Huron, 35 Mich. 296; Smith v. Mayor of New York, 66 N. Y. 295; Spelman v. Portage, 41 Wis. 144; Springfield v. LeClaire, 49 Ill. 476; Leavenworth v. Casey, McCahon, 124; Smith v. Mayor, 6 Thomp. & C. 685; 4 Hun, 637; Summer v. St. Paul, 23 Minn. 408; Forte Wayne v. Coombs, 107 Ind. 75; 57 Am Rep. 82; Leeds v. Richmond, 102 Ind. 372; Kranz v. Baltimore, 64 Md. 491; Rozell v. Anderson, 91 Ind. 591; Rice v. Evansville, 108 Ind. 7; Terre Haute v. Hudnut, 112 Ind. 542; Young v. Kansas City, 27 Mo. App. 101; Chope v. Eureka, 78 Cal. 588; 21 Pac. Rep. 364; Kanakee v. Linden, 38 Ill. App. 657; Arn v. Kansas, 14 Fed. 236; Bloomington v. Murvin, 36 Ill. App. 647. Street grades and grading. Ilmer v. City of Springfield, 56 Mo. 119; Littlefield v. Norwich, 40 Conn. 406; Clemence v. Auburn, 66 N. Y. 334; Lee v. City of Minneapolis, 22 Minn. 13; City of Detroit v. Beckman, 34 Mich. 125; Cheever v. Ladd, 13 Blatchf. 258; Tate v. Missouri R. Co., 64 Mo. 149; Russell v. Burlington, 30 Ia. 262; Dixon v. Baker, 65 Ill. 518; Dore v. Milwaukee, 42 Wis. 108; Shawneetown v. Mason, 82 Ill. 337; Hendershott v. Ottumwa, 46 Ia. 658; Mayor of Nashville v. Nichol, 59

duct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not (u).

The same principle has been applied to the management of a public harbour by the executive government of a British colony (x). The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case (y).

2.- Effect of a Party's Death.

Effect of death of either party. Actio personalis moritur cum persona. We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. This maxim" is one of some antiquity, but its origin is obscure and post-classical" (z). Causes of action on a contract are quite as much "personal" in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be

(u) Mersey Docks Trustees v. Gibbs (18646), L. R. 1 H. L. 93, 35 L. J. Ex. 225: see the very full and careful opinion of the judges delivered by Blackburn J.,L. R. 1 H. L. pp. 102 sqq., in which the previous authorities are reviewed.

(x) Reg v. Williams (appeal from New Zealand), 9 App. Ca. 418. (y) L. R. 1 H. L. 107, 110.

(2) Bowen and Fry L.JJ., Finlay v. Chirney (1888), 20 Q. B. Div. 494, 502, 57 L. J. Q. B. 217: see this judgment on the history of the maxim generally.

Tenn. 338; Ross v. City of Clinton, 46 Ia. 606; West Orange v. Field, 37 N. J. Eq. 600; 45 Am. Rep. 670; Noonan v. Albany, 79 N. Y. 470; 35 Am. Rep. 540; Smith v. Alexandria, 33 Gratt. 208; 36 Am. Rep. 788; Gillison v. Charleston, 16 W. Va. 282; 37 Am. Rep. 763.

presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the partics dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties (a). A very similar rule existed in Roman law, with the modification that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be sued (b). Whether derived from a hasty following of the Roman rule or otherwise, the common law knew no such variations; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man's estate, an impersonal abstraction represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be implied in the dictum, "If one doth a trespass to me, and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong" (c). Indeed, the survival of a cause of action was the exception in the earliest English law (d).

(a) Bowker v. Evans (1885), 15 Q. B. Div. 565, 54 L. J. Q. B. 421.

(b) I. iv. 12, de perpetuis et temporalibus actionibus, 1. Another difference in favour of the Roman law is that death of a party after litis contestatio did not abate the action in any case. It has been

conjectured that personalis in the English maxim is nothing but a misreading of poenalis.

(c) Newton C. J. in Year-Book 19 Hen. VI. 66, pl. 10 (A. D. 1440-41).

(d) 20 Q. B. Div. 503.

A barbarous rule. But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer's estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there would be no hardship in his taking subject to all obligations, ex delicto, as well as ex contractu, to which his testator was liable. Still less could the reversal of the rule be just cause of complaint in the case of intestate succession. Then as to the right: it is supposed that personal injuries cause no damage to a man's estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, presume it, in favour of the wrong-doer so to be? Here one may almost say that omnia praesumuntur pro spoliatore. Personal wrongs, it is allowed, may "operate to the temporal injury" of the personal estate, but without express allegation the Court will not intend it (e), though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication (f). The burden should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions (g); of which presently.

(e) Chamberlain v. Williamson, 2 M. &

S. at p. 414.

(1) Twycross v. Grant (1878), 4 C. P. Div. 40, 48 L. J. C. P. 1.

(g) Cp. Bentham, Traités de Législa tion, vol. ii. pt. 2, c. 10.

Extension of the rule in Osborn v. Gillett. The rule has even been pushed to this extent, that the death of a human being cannot be a cause of action in a civil Court for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant's death, it is held that the master's right to compensation is gone (h). We must say it is so held, as the decision has not been overruled, or, that I know of, judicially questioned. But the dissent of Lord Bramwell is enough to throw doubt upon it. The previous authorities are inconclusive, and the reasoning of Lord Bramwell's (then Baron Bramwell's) judgment is, I submit, unanswerable on principle. At all events "actio personalis moritur cum persona" will not serve in this case. Here the person who dies is the servant; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate (i). But the master's cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage; the two actions are independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected (k). It is

(h) Osborn v. Gillett (1873), L. R. 8 Ex. 88, 42 L. J. Ex. 53, diss. Bramwell B.

(i) Under Lord Campbell's Act (infra) they may have a right of suit for the benefit of certain persons, not the estate as such.

(k) E. g. Collen v. Wright, Ex. Ch. 8 E. & B. 647, 27 L. J. Q. B. 215 (agent's implied warranty of authority - a doctrine

introduced, by the way, for the very pur. pose of escaping the iniquitous effect of the maxim now in question, by getting a cause of action in contract which could be maintained against executors); Lumley v. Gye (1853), 2 E. & B. 216, 22 L. J. Q. B. 463, which we shall have to consider hereafter.