inconvenient, that the testator's assets should not be liable for the value of what belonged to another man, which the testator had reaped the benefit of. We therefore thought the matter well deserved consideration: We have carefully looked into all the cases upon the subject. To state and go through them all would be tedious, and tend rather to confound than elucidate. Upon the whole, I think these conclusions may be drawn from them: First, as to actions which survive against an executor, or die with the person, on account of the cause of action. Secondly, as to actions which survive against an executor, or die with the person, on account of the form of action. As to the first; where the cause of action is money due, or a contract to be performed, gain or acquisition of the testator, by the work and labour, or property of another, or a promise to the testator express or implied, where these are the causes of action, the action survives against the executor. But where the cause of action is a tort, or arises ex delicto (as said in Raym. 57, Hole v. Blandford, supposed to be by force and against the King's peace, there the action dies; as battery, false imprisonment, trespass, words, nuisance, obstructing lights, diverting a water course, escape against the sheriff, and many other cases of the like kind. Secondly, as to those which survive or die in respect of the form of action. . . . No action where in form the declaration must be “quare vi et armis, et contra pacem," or where the plea must be, as in this case, that the testator was not guilty, can lie against the executor. Upon the face of the record, the cause of action arises ex delicto; and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender. But in most, if not in all the cases, where trover lies against the testator, another action might be brought against the executor, which would answer the purpose. An action on the custom of the realm against a common carrier, is for a tort and supposed crime: The plea is not guilty; therefore, it will not lie against an executor. But assumpsit, which is another action for the same cause, will lie. So if a man take a horse from another, and bring him back again; an action of trespass will not lie against his executor, though it would against him: but an action for the use and hire of the horse will lie against the executor... Here therefore is a fundamental distinction. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, &c., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator for the value or sale of the trees he shall. So far as the tort itself goes, an executor shall not be liable: and therefore it is, that all public and private crimes die with the offender, and the executor is not chargeable; but so far as the act of the offender is beneficial, his assets ought to be answerable; and his executor therefore shall be charged. The form of the plea is decisive, viz., that the testator was not guilty; and the issue is to try the guilt of the testator. And no mischief is done; for so far as the cause of action does not arise ex delicto, or ex maleficio of the testator, but is founded in a duty, which the testator owes the plaintiff; upon principles of civil obligation, another form of action may be brought, as an action for money had and received. Therefore, we are all of opinion that the judgment must be arrested. Per Curiam. Judgment arrested. 65. PULLING v. GREAT EASTERN RAILWAY COMPANY QUEEN'S BENCH DIVISION. 1882 L. R. 9 Q. B. D. 110 STATEMENT OF CLAIM was in substance as follows: The plaintiff was the administratrix of Edward Pulling, deceased, her husband, and he had commenced the action in his lifetime. By an order of the Court the plaintiff had been substituted as plaintiff in the action in place of the said Edward Pulling, deceased. The plaintiff alleged that the said Edward Pulling while crossing the defendants' railway by a level crossing on a highway, was by and through the negligence of the defendants in and about the working of the defendants' railway and the management of an engine of the defendants, knocked down and run over by the engine, and sustained personal injuries. It was further alleged that in consequence of the aforesaid injuries the deceased was forced to leave his employment, and was prevented, from the time when he was so injured until his death, from following his occupation and from deriving therefrom the wages and profits which he otherwise might and would have earned and acquired, and he also incurred expenses in obtaining medical attendance and nursing and otherwise during his illness, and at the time of his death his personal estate and effects were much diminished in value by reason of the circumstances aforesaid. Demurrer. Lush Wilson, for the defendants, in support of the demurrer, was stopped by the Court. Clay, for the plaintiff, in support of the statement of claim contended that, inasmuch as damages had been occasioned to the estate of the intestate, he having incurred medical expenses and sustained pecuniary loss in his lifetime through his injuries, the action was maintainable by his administratrix under St. Edw. III, c. 7. . . ... DENMAN, J. I think that our judgment must be in favour of the demurrer. This action is clearly an action of tort, the cause of action alleged being the negligent management by the defendants of their railway and engine, whereby the original plaintiff sustained personal injury. The present plaintiff, his administratrix, alleges that the effect of the tort was to cause him to incur medical expenses before his death, and in respect of those expenses it is contended that the action is maintainable. I do not think that we can hold this action maintainable without in practice entirely abrogating the doctrine of law expressed in the maxim "actio personalis moritur cum persona." To a certain extent that doctrine has been qualified. Under the statute of Edward III it has in many cases been held that, where the cause of action, whatever its form may be, is in respect of a tortious impairment of the personal estate, such action may be maintained by the personal representative. But none of the authorities go so far as to say that, where the cause of action is in substance an injury to the person, the personal representative can maintain an action merely because the person so injured incurred in his lifetime some expenditure of money in consequence of the personal injury. . . . Here the tort complained of is an injury to the person arising from the defendants' negligence. There is no decision which supports the proposition that, because in consequence of such injury the person injured is put to expense, the case is brought within the category of cases to which the statute of Edward III applies. Medical expenses are almost always made an element of damage in actions for injury to the person, but it has never before been suggested that the personal representative could maintain an action on the strength of such expenses. For these reasons I think our judgment must be for the defendants. POLLOCK, B., concurred. Judgment for the defendants. TITLE B: SOCIETARY HARMS SUB-TITLE (I): HARMS TO THE DOMESTIC RELATIONS Topic 1. Parent's Interest in the Filial Relation 66. REGISTRUM BREVIUM (1595). Breve de herede maritata (fol. 98 b). Si Reginaldus Ireys &c. tunc pone &c. W. & R. quod sint coram iustitiariis &c. quare vi & armis Iohannam filiam & haeredem praedicti Reginaldi apud I. inuentam rapuerunt, maritauerunt, & abduxerunt, et alia enormia &c.; vel rapuerunt, abduxerunt, et maritauerunt &c. 67. REGISTRUM Brevium (1595). Breve de herede rapto in socagio (fol. 163 b). Si A. fecerit &c. tunc pone &c. N. quod sit &c. ostensurus quare cum custodia terrae & haeredis C. vsque ad legitimam aetatem ipsius haeredis ad ipsum A. pertineat, eo quod praedictus C. terram suam tenuit in socagio, & praedictus A. propinquior est haeredi ipsius C. ac idem A. in plena & pacifica seisina eiusdem custodiae diu extiterit; praedictus N. filium & haeredem praedicti C. infra aetatem & in custodia ipsius A. existentem apud N. inuentum vi & armis cepit & abduxit, & alia enormia ei intulit, ad graue damnum ipsius A. & contra pacem nostram. 68. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. 1765. (Book III, p. 140; and Editor's Note 27; ed. 1856, Philadelphia.) II. Injuries that may be offered to a person considered in the relation of a parent were likewise of two kinds: 1. Abduction, or taking his children away; and, 2. Marrying his son and heir without the father's consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, together with the right upon which it was grounded; for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no sort of injury for which a civil action will lie. As to the other, of abduction, or taking away the children from the father, that is also a matter of doubt whether it be a civil injury or no; for, before the abolition of the tenure in chivalry, it was equally a doubt whether an action would lie for taking and carrying away any other child besides the heir: some holding that it would not, upon the supposition that the only ground or cause of action was losing the value of the heir's marriage; and others holding that an action would lie for taking away any of the children, for that the parent hath an interest in them all, to provide for their education.1 If therefore before the abolition of these tenures it was an injury to the father to take away the rest of his children, as well as his heir (as I am inclined to think it was), it still remains an injury, and is remediable by writ of ravishment, or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; in the same manner as the husband may have it, on account of the abduction of his wife. . . [NOTE.] It has been disputed, but the better opinion is, that the father has an interest in his legitimate child, sufficient to enable him to support an action in that character, for taking the child away, he being entitled to the custody of it. Cro. Eliz. 770; 23 Vin. 451; 2 P. W. 116; 3 Co. 38; 5 East, 221. No modern instance, however, of such action can be adduced, and it is now usual for the father to bring his action for any injury done to his child, as for debauching her, or beating him or her, in the character of master, per quod servitium amisit, in which case some evidence must be adduced of service. 5 T. R. 360, 1. 69. HALL v. HOLLANDER KING'S BENCH. 1825 7 Dowl. & Ry. 133; 4 B. & C. 660; Rev. Rep. XXVIII, 437 TRESPASS for driving a carriage against the plaintiff's son and servant, whereby he was injured, and the plaintiff, for a long space of time, to wit, &c., was deprived of the service of his said son and servant, and of all the benefit which would otherwise have accrued to him from such service, and was forced to expend a large sum of money, to wit, &c., in the cure of his said servant. Plea, not guilty. At the trial before Abbott, C. J., at the Westminster sittings after last Trinity term, the plaintiff proved that the defendant drove his carriage against the plaintiff's son, then an infant two years and a half old. The child was much injured, and at first was taken to the Middlesex hospital, where he might have remained without expense to his father, but he was afterwards taken home by his father, who thought he would be better there, and was taken daily to the hospital for advice for some months, at the expiration of which time he was dismissed as cured. The father also hired a servant to attend the child during his illness. Upon this evidence it was objected for the defendant that the child was not competent to perform any service by reason of his tender age, and that as loss of service was the gist of the action, the plaintiff must be nonsuited. The Lord Chief Justice was of that opinion, but offered to leave it to the jury to say, whether the child was capable of performing services to which any value could be attached. The counsel for the plaintiff did not desire the question to be so left, and thereupon the plaintiff was nonsuited. Lawes, now moved for a new trial, and contended that the plaintiff was entitled to recover without proving any actual service by the child. In this respect the case of a child differs from that of a mere hired servant. In the latter cause, loss of actual service must be proved; but in the former, the child being resident with and under the control of the parent, must unavoidably be, in legal acceptation, a servant, so as to support an action of this nature. Jones v. Brown, Peake, N. P. C. 233, 1 Esp. 217, s. c.; Fores v. Wilson, Peake, N. P. C. 55. At all events, the plaintiff was entitled to recover the expenses which he was put to in obtaining the cure of his son. BAYLEY, J. I am of the opinion that the nonsuit in this case was right. It has been contended that the action is maintainable on two grounds: first, for the loss of the services of the child, and, secondly, for the ex |