respect to which damage no advantage had accrued to the defendant, and, as an interlocutory act, a referee was directed to inquire the amounts due on these several accounts. Before the referee had completed his investigation Fothergill died and his executrix made a motion that the inquiries of the referee on the two latter points be stayed, on the ground that the rights involved did not survive against her. For the amount due under the first instruction to the referee, that is for the coal and iron-stone actually appropriated by her testator, she acknowledged her liability. The court were clearly of opinion that the damages included under the third instruction arose from a mere trespass, and would not survive; and therefore the investigation on that head should be stayed; but whether the investigation as to the value of the way-leave should be stayed was a question on which they disagreed. Bowen, J., and Cotton L. J., were of opinion that the fact that the defendant's estate was increased in value by the trespass, was immaterial unless that increase in value arose from a conversion of the plaintiff's property to the use of the defendant. The plaintiff must go after his prop

erty or the proceeds of it. He could not make a case by showing that the defendant's estate was increased in value by the trespass. Said Bowen, J.: "The only cases in which, apart from questions of breach express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act, appear to us to be those in which property, or the proceeds or value of property belonging to another, have been appropriated by the deceased person and added to his own estate or money.

*

* *

*The property, or the proceeds or value, which in the lifetime of the wrong-doer could have been recovered from him, can be traced after his death to his assets, and be captured by the rightful owner there. But it is not every wrongful act by which a wrong-doer indirectly benefits, that falls under this head, if the benefit does not consist in the acquisition of property, or its proceeds or value. Where there is nothing among the assets of the deceased that in law or equity belongs to the plaintiff, and the damages which have been done to him are unliquidated and uncertain, the executors of a wrong-doer cannot be sued merely because it was worth the wrong-doer's while to commit the act which is complained of, and an indirect benefit may have been reaped thereby." And later Bowen lays it down that where the plaintiff cannot lay the action in any other way except trespass it will not

survive, but when he can, at his election, lay it in trespass or assumpsit, it will survive and may be prosecuted in either form, against the testator of the tortfeasor.

Baggallay, J., dissents from this view, and says that in his opinion it makes no difference whether the defendant has in his possession any property derived from the plaintiff's estate, or any money derived from a conversion of it. The question is whether his estate is better off than it would be had he not been guilty of the tort. It makes no difference whether his estate is greater because he converted property to his own use, and thus increased it, or greater because on account of a wrongful use of the plaintiff's property, he saved to his estate what it would otherwise have been necessary for him to expend.

From an historical standpoint, it seems that the majority of the court were correct in saying that this right of action did not survive; for historically no action in tort, as such, survives, but a tort is a mere personal or private crime, for which the person committing it, and he only, is responsible. When he is buried the wrong is buried with him, and the wronged can reach no one responsible. The wronged can do nothing but require that his property, if he find it in the estate of the deceased, shall, though changed in form, be returned to him. His action to recover this, while not strictly an action in re is yet, in substance, an action to lay his hands upon his own property, and not a personal action. But, historically, the action to recover the property should be in assumpsit and not in tort. The right of the plaintiff to sue in tort, which the court admit to exist, is a concsssion of history to justice. If history will make this concession, why should it not make others if justice require? If the executor of the tortfeasor can be sued in the form of trover or trespass at all, and the tortfeasor's estate can be made to respond to an action in that form, why should not an action in that form be allowable whenever the justice of the case requires it? And if the estate of the tortfeasor is greater by reason of a wrongful trespass, and the estate trespassed upon is less by reason of that trespass, does not justice require that the estate which has been augmented by such wrongful act should respond in damages to the estate which has been decreased, and can it make any difference so far as justice goes, that the trespasser has since died? To make the present case stronger without altering it in principle, suppose that the land

of the plaintiff had been entirely ruined by tunnels which the defendant had constructed under it, though without converting any of the minerals belonging to the plaintiff; and suppose that through the use of these tunnels the defendant had avoided. constructing much longer ones another way and thus saved himself great expense, and largely increased the value of his estate; and suppose that immediately upon learning of the ruin of his property the plaintiff had brought suit and prosecuted it with all diligence, and, upon the facts as they then existed, with absolute certainty of success; suppose now, that upon the eve of the judgment the defendant had suddenly died, would it have been just to permit the personal representatives of the defendant to enjoy in undisturbed luxury, the profits arising from this trespass, while the plaintiff was left remediless, and perhaps in poverty? Would it have been just to creditors of the plaintiff "ho had given him credit in view of his possession of this valuable estate? If an action may ever be maintained in the form of trespass against the executor of a tortfeasor why should an action in that form not be available to remedy such an injustice as this?

The court in this case might have stood upon historical warrant and said that no action in the form of tort could be maintained against an executor, but they did not. They departed from the historic reason of the thing when they said that any action against an executor could be maintained in that form. If an action may be maintained against an executor in the form of tort, why not go one step further, and say that the substance may be coupled with the form if justice require it.

Viewing the law from an historical standpoint, Baggallay's opinion went too far; but from the standpoint of practical justice, and having in view the modern business ideas of debt, and the responsibility of property for debt, it seems to me not to have gone far enough. What reason is there why, for the uses of today, the whole doctrine of the non-survival of actions for property trespass is not wrong? What reason is there why the estate of a tortfeasor should not be liable for injuries which he has done to another's property, without reference to the advantage or disadvantage to his own? If my neighbor set fire to my house and then die, what reason is there why my estate, rather than his, should suffer the loss? When he commits such a trespass the law has two holds upon him. In the first place it can lay hands upon his person in

punishment for the crime. In the second it can take away from him sufficient of his property to recompense me for my loss. If he die the former hold of the law upon him is gone. It is beyond the power of earthly tribunals to punish him for his crime; but why should that render impotent the hand of the law to recompense me out of his property? If an action can be maintained against his executor in the form of trespass, why should that form not serve the purposes of justice in such a case as this?

In the case of trustees and other fiduciaries the principle contended for is already established. It is held that the estate of a deceased trustee may be made to respond in damages for a mere tortious injury to the cestui que trust. Adair v. Shaw, 1 Sch. & Lef. 272; Montford v. Codigan, 17 Ves. 485; Walsam v. Stainton, 1 De G. J. & S. 678. This is upon the principle that a trustee is held to a stricter and more conscientious account than one not standing in a trust relation. It does not seem to me that it would be pushing conscientious conduct to an unreasonable extreme or would produce unjust practical results if the same rule were made to apply in other cases. After these ten creeping centuries of slow development we might well take another step and say that all actions for property trespass shall survive. The prevailing rule is based upon the theory that such trespasses, when unaccompanied by conversion, are mere personal affairs, -a theory which is untrue and unjust, and a relic merely of the undeveloped commercial ideas of the early English law.

Kansas City, November 20, 1894.

ROBERT DIMOND BROWN.

CORPORATE ASSETS AS A "TRUST FUND FOR THE BENEFIT OF CREDITORS."

The views set forth in the writer's article on "The Power of Corporations to Prefer Creditors," 2 Northwestern Law Review, 163, have just been reiterated by the Supreme Court of Arkansas, in the case of Worthen v. Griffith, 28 S. W. 286. The court cites Graham v. R. R. Co., 102 U. S. 148, and Hollins v. Brierfield Coal & Iron Co., 150 U. S. 385, and says that "until a court, through its officers, takes charge of the property of the corporation, it has, even though insolvent, as complete control thereof as an individual would have over his property under like circumstances." The opinion of the court as to the right of the corporation to prefer its directors is also in harmony with the article above mentioned. The court says:

"But it is contended that the funds of an insolvent corporation are in the hands of the directors, to be disbursed on their unbiased and impartial judgment, and that, when personal interest or individual gain is an element subserved through their preference, it should be set aside, as being in contravention of sound equitable principles. To support this contention, counsel cite, among other cases, the well-considered case of Mallory v. Mallory, (Conn.) 23 Atl. 708. In that case the directors of a corporation undertook to use their official position for their own benefit, and to increase their salary, to the injury of the interests of the corporation. The familiar rule that no one acting in a fiduciary capacity shall be permitted to make use of that relation for his own benefit, at the expense of the interests of his principal, was invoked by the corporation and applied by the. court. There can be no doubt that the rule was properly applied in that case, for the directors are agents, and, to a certain extent, trustees, of the corporation. They will not be allowed to enter into engagements in which they have a personal interest conflicting with the interests of their principal, whose interests they are bound to protect. The rule is of wide application, and applies, as was held in that case, to agents, partners, guardians, executors, and to trustees generally, as well as to the directors and managing officers of corporations. If personal engagements hostile to the interests of their principals are entered into by persons holding such fiduciary relations, they are not, in