RECENT DECISIONS.

Covenants in a lease-Speculative damages.—In an action by a lessor against the lessee, for breach of the covenants in the lease whereby the lessee was to allow the usual "to let" notice to be displayed on the house before the expiration of the lease, and also to permit the premises to be shown to prospective tenants, the measure of damages was held to be the rental value of the property during the time it remained vacant on account of the lessee's wrongful act.

In such a case, the proof of damage and the cause thereof are not of so uncertain and speculative a character as to justify the trial court in instructing the jury to return a verdict for nominal damages only.

In such action at law, the fact that the plaintiff had at one time a full and adequate remedy in equity by injunction to prevent the breach of the covenant, is no defense to the action at law for damages. United States Trust Co. of New York v. O'Brien, 38 N. E. R. (N. Y.) 266.

Evidence-The fact that documentary evidence was unlawfully obtained by an officer, from the possession of the party charged with the crime, is no valid objection to its admissability against him, if it be otherwise competent evidence. Trask v. People, 38 N. E. R. (Ill.) 248, citing 138 Ill. 103, Bailey, J., dissenting; 143 Ill. 571, Bailey, C. J., and Baker, J., dissenting.

Evidence.-State v. Lee, 60 N. W. Rep. (Ia.) 119. On a trial for murder, evidence was introduced of an agreement between the witness and defendant to rob a number of persons, and to shoot if there was resistance. The witness.then went on to testify to two robberies carried out at a different place from that of the murder, and four hours before. On objection to this latter evidence the lower court had ruled it admissible, and this ruling was sustained on the ground that in the carrying out of the general plan of robbing "the events of the day'were so linked together that it was competent to show them all, in order that the causes which led to the shooting might be fully understood."

Impeachment of witness.-A person whose witness testifies contrary to the way he has been led to believe he would do, cannot prove that the witness had made prior statements to him to the contrary.

In re Kennedy's Estate, 38 Pac. Rep. 93.

Insurance policy.—A life insurance policy was taken out by a husband in favor of his wife, her executors, administrators and assigns. The wife died before the husband and before any new beneficiary was named; held,

that the policy was part of her separate estate, of which the husband, as heir of the wife, was entitled to one third. In re Dobbels' Estate, 38 Pac. Rep. 37.

Libel.-In the case of McCauley v. Elrod, 27 S. W. Rep. (Ky.) 867, the court held the following words were not actionable per se: "He (meaning the plaintiff) beat B out of a thousand dollars. He robbed you, B, of a thousand dollars while he worked for you." In sustaining his position the judge said "The words spoken in reference to the plaintiff's connection with B did not impute a felony, and could not have been so understood by those present. "The words in the first sentence explain to one of ordinary understanding the meaning of the defendant in speaking the words contained in the last sentence. In what manner did he rob B? It was by beating him out of a thousand dollars through chicanery or artifice. The idea that the plaintiff forcibly took from the person of B the money is not conveyed to the hearer by the words used, nor was such the intent of the defendant."

Self crimination-Though a witness has testified in the broadest terms that he was in no way whatsoever connected with a certain criminal offense, yet, if his answers to certain questions would disclose circumstances which would tend to subject him to the hazzard of a trial upon the criminal charge, he may refuse to testify upon the ground that his evidence may tend to criminate him. People ex rel, Taylor v. Forbes, Justice, 38 N. E. R. (N. Y.) 303.

Statute of limitations—Quasi contract.-In Shain v. Sresovich, 38 Pac. Rep. 51, suit was brought to recover the amount of an overpayment of a bill caused by a mistake of the plaintiff's bookkeeper; held, that the statute of limitations ran from the time of the overpayment and not from the time of the discovery of the mistake by the plaintiff; and that the fact that the defendant knew of the mistake at the time it was made was immaterial.

NORTHWESTERN LAW REVIEW

VOL. III.

JANUARY, 1895.

No. 4.

THE SURVIVAL OF ACTIONS IN TORT.

In the early history of the English law the survival of actions was the exception and not the rule. Most actions of contract, and probably all actions of tort, died with either party. It was the rule that no plaintiff could maintain an action on a simple contract, against the administrator of a deceased defendant, or the administrator of one who, had he lived, might have been made a defendant. Neither could a suit be maintained by an administrator in favor of the estate of his decedent. The death of either party cancelled the score and left the debtor free, or the creditor without remedy. (I Bracton fol., 101.) The rule as to obligations created by specialty was different, for these survived unless the obligation was penal, but even obligations by specialty, if penal, did not survive, or if partly penal and partly otherwise, that which was penal perished, and that which was not, survived..

Now, with the exception of one small class, such as actions for breach of contract of marriage and the like, all accrued obligations on contract, that is all obligations upon which actions could have been brought by the decedent at the time of his death, or upon which actions could have been brought against him, survive. Likewise a great many, perhaps most, rights of action in tort survive.

Before going into any historical consideration of the subject, it may be well to observe that it is a strong tendency in the development of all laws to hold property more and more liable to the satisfaction of obligations, and persons less and less so. Among primitive people the failure to pay debts is looked upon more as a crime than a misfortune. The debtor is exiled, scourged, imprisoned or visited with some other penalty much as is the thief or disturber of the peace. As the law develops the rigor of the debtor's personal punishment is modified, but violent hands are laid

upon his property. The creditor, instead of throwing the debtor into prison, sues out execution on his goods. Individual obligation and personal integrity are matters which are inquired into with diminishing solicitude, while property statements and commercial ratings are scanned with a careful eye.

It is obviously not unnatural that where the first idea prevails, and obligations are looked upon so purely as personal matters, rights of action should not survive, while where the latter idea prevails, and property is the chief thing regarded, rights of action should survive. If the person is the responsible thing, or the right is simply a right of the person, obviously the obligation or right should perish with the person, but if property is looked upon as the responsible thing, or the right as a right of one's estate or business, quite as obviously, the right of action should survive. Of course a contract cannot be made with property, nor is property generally rendered absolutely liable, for it may be transferred, changed, diminished or destroyed, and the obligation will still exist. Nominally the person is responsible, yet property is con stantly becoming more and more the thing considered and looked to and the person less and less so. Remedies against property are multiplied and perfected and remedies against the person are dropping into disuse. In this tendency may be found, I think, a plausible explanation, taken generally, of the changes which have taken place in the law of the survival of actions. The tendency has been toward their survival in proportion as property has taken up an increasing, and the person a decreasing, portion of the field of view in the creation of obligations.

In considering this subject it may be well to divide the actions involved into two classes, first actions in which an executor is plaintiff, second actions in which an executor is defendant.

As already observed, in the early English law, most actions of tort, as well as of contract, did not survive. When this early law was changed as regards contracts is uncertain, probably it was changed by degrees, but certainly great changes took place at a very early period. It seems probable that nearly all actions in contract, of the first class, viz., those in which an executor was plaintiff, survived before the time of Edward III, for the preamble to the Statute 4 Edward III, recites: Whereas, in time past, executors have not had actions for trespass done to their testators," etc., but says nothing about any want of action on contracts.

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Actions on contract would naturally survive earlier than actions in tort, and since no remedy in cases of contract is provided by this act, it is fair to presume that one already existed. It may be, however, that at this time, actions on simple contracts did not survive, but that simple contracts were so infrequently made, and of so little importance, that it was not thought worth while to pass a remedial statute with regard to them. At all events, the change had certainly taken place before the time of Baron Comyns, for in his Digest, Com. Dig. Tit. Administration, B. 13, examples are given of the survival of actions upon judgments, statutes, recognizances, specialties, covenants, and contracts, express and implied. But up to the time of Edward III no right of action for trespass to property survived the person wronged, no matter how destructive that trespass might have been. If one by a trespass, not amounting to crime, could get possession of another's personal property, and keep it until the owner died, the trespasser could then enjoy it without fear, and with no one to molest. To bring about a change in this unsatisfactory state of affairs was the object of the statute, 4 Edward III. That statute recited and provided as follows: "Whereas in times past, executors have not had actions for trespass done to their testators, as of the goods and chattels of such testators carried away in their lives, and so such trespassers have hitherto remained unpunished; it is enacted that the exccutors 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 in life." This statute, however, applied only to trespasses to personalty and no provision was made for the survival of actions for trespass to realty until the beginning of the present century when the statutes of 3 & 4 William IV were passed. After reciting that no action for trespass to realty then survived, these statutes 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," etc. Various explanations have been attempted of the reason why, until the passage of these laws, actions of trespass did not survive. Perhaps no better one can be given than simply to say that the law had not yet got that far