looking forward to such action created the duty. And that duty he has violated. There is some question whether the train thus set in motion, and continued in motion by an independent set of persons, should be inherently dangerous; it is certain that if it is, liability runs back to the person who started it. Thus A, who is a manufacturer of drugs, puts a quantity of belladonna, a violent poison, into jars which he labels dandelion, a harmless drug; he sells the same to B, a wholesale dealer; B in turn sells to C, a retail dealer; and C sells to D, who buys the drug for his own use as dandelion, takes it as such, and is injured. A is liable to D.1 The drug sold (in accordance with A's purpose) was inherently dangerous; but there is authority for saying that the result would be the same though the thing in question, as for instance a folding bed, were not inherently dangerous, but dangerous only for some vice in it.2 The principle in question applies generally to all kinds of tort, but as a matter of fact it seldom finds expression except in cases of negligence; some phases of it are almost of necessity phases of negligence. The consequence is that the subject must be considered particularly under that head, and it will not be considered further here.3 § 7. OF DEATH OF PLAINTIFF OR DEFENDANT. Liability for tort may come to an end in a very dif ferent way from any capable of being stated in terms of the cessation of duty; actio personalis moritur cum persona.' Expressing the rule in terms of the Roman 1 Thomas v. Winchester, 6 N. Y. 397; Cases, 567. 2 Lewis v. Terry, 43 Pac. Rep. 398 (Cal.). 8 See post, pp. 376, 377. law, the courts have from early times declared that (most) torts cease to create liability with the death of either of the parties to them.1 Both the origin and the justification of this rule are matter of doubt; but no common law rule has been more steadily maintained, except as statute has affected it. It matters not that an action may already have been set on foot, the rule applies with absolute impartiality. 2 8 It has been suggested that the rule may have come into operation when the processes of the courts were finally putting aside the right of private redress for wrongs which had prevailed under what may be called customary law. 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.' Whether this be true or not of cases of the death of the wrongdoer, it would not explain the effect of death by the injured person, reasons were found even in early times which brought about legislation to limit any possible application of the rule to cases in which the tort directly affected the injured man's property. Legisla 1 See e. g. Bowker v. Evans, 15 Q. B. Div. 565, death of plaintiff. The rule is not confined to torts. The action for breach of promise of marriage'moritur cum persona.' Finlay v. Chirney, 20 Q. B. Div. 494; Hovey v. Page, 55 Maine, 142; Lattimore v. Simmons, 13 Serg. & R. 183; Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408. Aliter, if special damage to property is caused. Finlay v. Chirney: Stebbins v. Palmer. See infra. 2 Bowker v. Evans, supra, an arbitration. 8 Pollock, Torts, 55, 2d ed., to which is added a dictum by Newton, C. J. from Year Book 19 Hen. 6, pl. 10 (A. D. 1440-1): '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.' 4 The distinction seems to be between causes of action which affect the estate, and those which affect the person only. . . . According to this distinction, an action for the breach of a promise of marriage would not survive; for it is a contract merely personal; at least it tion of the kind began as early as the year 1330, which gave an action for goods and chattels of . . . testators carried away in their life;' and twenty-one years later the same right of action was given, by construction of statute, to administrators.1 These statutes have been adopted in America; and to them (as in England) have been added statutes, varying more or less in the different States, in favor of the nearest kindred of persons killed by misconduct of others. The latter statutes, however, have no place in a consideration of General Doctrine. does not necessarily affect property. . . . The injury complained of is violated faith, more resembling in substance deceit and fraud than a mere common breach of promise.' Wilde, J. in Stebbins v. Palmer, 1 Pick. 71, 79. If it be said that the same is true of many other contracts which do survive, the only answer perhaps is, that a rule, like that of actio personalis, not founded in sound reason, will be apt to be departed from more or less. 1 4 Edw. 3, c. 7; 25 Edw. 3, st. 5, c. 5. See Phillips v. Homfray, 24 Ch. Div. 439. |