along. The law began with practically no survival of actions, and these classes of actions had not yet begun to survive.

It may at first be difficult to understand why five centuries should have elapsed between the passage of a law providing for the survival of actions for trespass to personalty, and the enactment of a law providing for the survival of actions for trespass to realty. It should be remembered, however, that the statute of Edward III was not intended to operate on all actions for injury to personal estate, but only in cases of trespass "as of the goods and chattels of the said testators carried away in their lives." Obviously there could be no cases of trespass to real property at all parallel to these, and it was not therefore such an easy step from the statute of Edward III to the statute of William IV. No further legislative changes of importance have taken place in the law on this subject. The law as to the survival of actions for trespass to personalty remains, so far as legislation is concerned, practically where it was in the fourteenth century, and the statute of William IV, though not common law in this country, is the law of England respecting the survival of actions for trespass to realty. A great many cases have been adjudicated under the statute of Edward III and the interpretation of the statute has constantly been growing more liberal. Much fewer cases have arisen under the statute of William IV and as the principles underlying them are much the same as those governing the later cases under the statute of Edward III it may be well to consider together the cases under the two statutes. As already said the statute of Edward III appears not o have been intended to apply to all actions for trespass to personalty, but only to cases of a peculiar sort. It seems to have been intended to apply to cases of conversion with profit, and to no others. So in the case of Emerton v. Emerton, 1 Vent. 187, while it was held that an action would lie by an executor for the value of growing corn of his testator cut and carried away by the defendant, the court nevertheless said, "But if he had cut the corn and let it lie, no actiou would have lain by the executor."

The statute of Edward III was, however, early interpreted more liberally, and made to apply to all cases of trespass to personal property even though the trespasser acquired thereby no profit to himself. So it has been held that an action will lie against a sheriff for false return in the lifetime of the testator. Williams v. Carey, 4 Mod. 403, or against a sheriff for permitting a prisoner

in his custody to escape during the lifetime of the testator. Berwick v. Andrews, 2 Lord Ray. 973. And in Potter v. Railroad Co., 30 L. T. N. S. 765, it was held that Mrs Potter, who was a passenger on the defendant railway, and was so injured that her husband lost her services and was compelled to pay out considerable sums for medical attendance, might, as his executrix, maintain an action for the injury to his property interest. It is laid down by Mr. Williams (1 Williams on Adm. 745), that " an executor or administrator may now have the same action for any injury done to the personal estate of the testator in his lifetime, whereby it has become less beneficial to his executor or administrator, as the deceased himself might have had, whatever the form of action might be."

The injury, however, must be an injury to the testator's property, not to his person. An injury to the person perishes with the person. The distinction is well illustrated by the case of Sawyer v. The Concord R. R. Co., 58 N. H., 517. One Sawyer was a brakeman on the defendant railroad. Through the negligence of the defendant, he was crushed between the cars, and shortly afterward died from the effect of his injuries. The plaintiff, his administratrix, brought suit for the injury to him, and also for the injury to his clothing. It was held that the injury to him was a personal trespass only, and would not survive, but the injury to his clothing was an injury to property, for which his administratrix might have an action.

The question as to what is an injury to property, and what a mere personal injury, is one of some difficulty, and one which has given rise to considerable discussion and not a little adjudication. In Bradshaw v. The R. R. Co., 10 C. P. 189, it was held that the administratrix of a passenger on the defendant railroad, who had been so seriously injured that he finally died, might maintain an action for the injury to his estate, incurred by payment for medical attendance and by the loss of wages during his life. The decision, however, was put upon the ground of a contract for safe carriage, and not of tort. So in Pulling v. R. R. Co., 9 Q. B. D., 110, it was held that the administratrix of one killed by the mere tort of a railroad company where no contract existed, could not recover the amount expended for medical attendance, and the amount which his estate had been damaged by his failure to earn wages, for the injury was in substance personal, and the damage

to property was only an incident of such personal injury, and an indirect result of it. In a recent Colorado case, Union Pac. R. R. v. Kelley, 35 Pac. Rep., 923, it was held that the executrix of an express messenger, who was injured so seriously that he afterwards died from the effects of his injury, might maintain an action for the cost of medical attendance and for loss of wages. In that case also the decision was put upon the ground of contract, and it seems wrongly so. The contract was between the railroad company and the express company, and it is difficult to understand how a stranger to the contract, or his representative, could sue upon it. The contract prevented the messenger from being a trespasser, and might therefore, render that a tort which would not otherwise have been so, but if the action was maintainable at all it must have been for tortious injury to property, for the messenger was not a party to any contract upon which to sue. Hammond v. R. R. Co., 6 S. C., 130.

The statutes of Edward III and William IV apply, however, only to cases in which the testator was the injured party and the executor plaintiff. The law applicable to cases of the second class, in which the testator was a tort feasor and the executor is defendant, seems to have grown up independent of statute. Most actions on contract, in this class as in the first-class, survived at an early period. There was, however, one class of cases in contract; in which, owing to the form of defense which might be employed, the action did not survive, namely, those in which the defendant might wage his law. An executor could never wage his law, and in cases of this class therefore, had the right of action survived, the executor would have been deprived of a remedy of which the testator might have taken advantage. It was thought that it would be unjust to make the executor defend when he was deprived of a part of his testator's defenses, and the judges, therefore, being compelled to choose between two evils, chose what seems to have been the greater, and decided that such actions would not survive at all. After a time wager of law as a method of trial went out of use, but the rule which had been established with regard to this class of cases had become so firmly fixed that it continued in existence until the beginning of this century,-long after the reason for its existence had disappeared. In Barry v. Robinson, 1 N. Rep. (Bas. & Pul.), 293, decided in 1805, it was held that an action for debt on a promissory note, given by the defend

ant's intestate for value received in goods, could not be maintained. This was probably the last case so decided. No remedial act seems to have been passed to modify the rule, but the law being indefensible on any grounds of justice, and owing its existence merely to a long disused form, gave way to the necessities of busi

ness.

It was early held that a right of action for a mere tort would not survive against the executor of the tort feasor. An early case to that point is Whitacres V. Onsley, Dyer, 322 a.

That was a case in which the plaintiff was the administrator of one Warde, a judgment creditor of one Thurland, who was imprisoned in the Fleet for failure to pay the debt. Onsley was the administrator of one R. T., late warden of the Fleet who had allowed Thurland to escape, whereby R. T. became liable to pay the debt. The action was to recover the amount of the debt, but the court was of opinion that a recovery could not be had because the action must be an action on the case for tort, and such actions die with the wrongdoer. But where the tort amounted to a conversion of property it was early held that the executor of the tortfeasor was liable, though the action could probably not be brought in tort. So in Sherington's case, Sevill, 40, it was held that the executor of one who cut trees on the Queen's land and carried them away, was liable for the value of the trees carried away, though not for those cut and not carried away. Said Manwood, J.: "In every case where any price or value is set upon the thing in which the offense is committed, if the defendant dies his executors shall be chargeable, but where the action is for damages only in satisfaction of the injury done, there his executors shall not be liable." Likewise in Parkinson v. Gilford, Cro. Car., 339, it was held that an action in debt might be brought against the executor of a sheriff who had levied under a fi. fa. and had not paid over, for while failure to pay over was a misfeasance, or breach of duty, yet the conversion of the money rendered him liable in debt, for which debt his executors were chargeable.

Until the recent case of Philips v. Homfray, 24 Ch. D., 454, the most carefully considered case on this subject was Hambly v. Trott, 1 Cowp., 371. That case was twice argued before Lord Mansfield and the full court. It was an action of trover against an administrator with the will annexed, for the conversion, by the

testator, in his lifetime, of sheep belonging to the plaintiff. Lord Mansfield, in delivering the opinion of the court, said: "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, etc., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, beside the crime, property is acquired, which benefits the testator, there an action for the value of the property shall lie 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 the 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 to his assets he ought to be answerable, and his executor, therefore, shall be charged." Nevertheless, he held that in this case, the plaintiff could not recover, because the action was brought in tort, and the defendant executor could truly plead "not guilty." The plaintiff would, however, have had an action in assumpsit for the value of the property converted.

Ever since that time the dictum of Hambly v. Trott, has generally been looked upon as a correct statement of what the substance of an action must be in order that it may survive and be maintainable against the executor of a tortfeasor, but the law is now different as to the form in which it may be maintained. Such facts would now sustain an action in tort as well as in assumpsit. The whole law on the subject is gone over with great care in the more recent case of Phillips v. Homfray, supra, and while none of the judges disagree with the dictum of Hambly v. Trott, they disagree in their interpretation of Lord Mansfield's language in that case. In Philips v. Homfay the facts were these. Homfray, Fothergill, et al., worked a mine, the shaft of which was on their own land. They, however, constructed workings under the plaintiff's land, and took from it coal and iron-stone. They also constructed a tunnel under the plaintiff's land through which they conveyed minerals from another part.of their own land. Upon learning the facts the plaintiff brought suit. The court was of opinion that the defendants were liable, (1) for the coal and iron-stone taken from the plaintiff's land; (2) for the value of way-leave under it; (3) for damage generally to the plaintiff's land and minerals, with