Lyndhurst inclined to the view that the maxim, actio personalis moritur cum personâ, was applicable. The main ground, however, of his decision against the claimant was that a petition of right does not lie for negligent or tortious acts of the Crown's servants (q). The question whether a master can maintain an action for the loss of the services of his servant, if caused by a wrongful or negligent act whereby the servant is killed on the spot, was answered by the majority of the Court. in Osborn v. Gillett (r) in the negative. But Lord Bramwell dissented, and his reasoning seems to be the more satisfactory. The maxim under consideration is not properly applicable, because the servant, had he survived, would not have been a party to the master's action; and, assuming that the killing be felonious, the doctrine that the civil injury to the master is merged in the felonious act committed upon the servant appears now to be untenable (s). The decision mainly rests upon the statement of Lord Ellenborough at Nisi Prius (t) that "in a ciril Court the death of a human being could not be complained of as an injury"; but it may be doubted whether this statement had any basis other than the doctrine of merger which is now exploded. Action by servant has been killed outright. master whose Notwithstanding the maxim actio personalis moritur cum Duties to be persona, an action in respect of dilapidations to the build- performed. ings of a benefice lay at common law against the executors of a deceased incumbent at the suit of his successor or even of the executors of his successor (u); and the reason was that the omission to repair was considered not as a tort, but as the breach of a duty, analogous to an implied. (1) Visc. Canterbury v. A.-G., 1 Phill. 306; see ante, p. 43. (r) L. R. 8 Ex. 88: 42 L. J. Ex. 53. (s) See ante, pp. 167-169. (1) Baker v. Bolton, 1 Camp. 493: 10 R. R. 734. (u) See Bunbury v. Hewson, 3 Exch. 558; Ross v. Adcock, L. R. 3 C. P. 655. By 34 & 35 Vict. c. 43, the cost of the repairs became recoverable as a debt; see Re Monk, 35 Ch. D. 583: 56 L. J. Ch. 809. 696 General rule. contract, with regard to the property (r). For the like reason, it appears that the maxim does not apply to a suit against executors in respect of their testator's breach of trust (y), or his breach of his duty to repair his copyhold tenement in accordance with the custom of the manor (); and there may be cases in which, where a statute imposes a duty with reference to property, an action for a breach of that duty may, on the like ground, be maintainable after the death of the person upon whom or for whose benefit the duty is imposed (a). There is, however, a decision to the effect that the extraordinary expenses of repairing a highway damaged by extraordinary traffic thereon cannot be recovered by the highway authority, under the Highways Act, 1878 (b), from the executor of the person by whose order the traffic was conducted (c). The claim was, it seems, treated as one to which Lord Mansfield's remark might be applied: “All private criminal injuries or wrongs, as well as all public crimes, are buried with the offender" (d). be In conclusion, the extent and limits of the common law doctrine, actio personalis moritur cum personá, may summed up thus: it was a rule of the common law that if an injury were done either to the person or property of another for which damages only could be recovered in (a) See per Cotton, L.J., 36 Ch. D. 280, referring to Sollers v. Lawrence, Willes, 413, 421. (y) Concha v. Murrieta, 40 Ch. D. 543, 553 (see S. C., [1892] A. C. 670); Ramskill v. Edwards, 31 Ch. D. 100, 111: 55 L. J. Ch. 81. See also Re Sharpe, [1892] 1 Ch. 154: 61 L. J. Ch. 193. (*) Blackmore v. White, [1899] 1 Q. B. 293 68 L. J. Q. B. 951. See also Batthyany v. Walford, 36 Ch. D. 269: 56 L. J. Ch. 881. (a) See Peebles v. Oswaldtwistle U. D. C., [1896] 2 Q. B. 159: 65 L. J. Q. B. 499; but as to the duty there alleged, see S. C., [1897] 1 Q. B. 625: 66 L. J. Q. B. 392. Sequestration, issued to compel the performance of a duty, is not deter mined by the death of the person against whose estate it was issued; Pratt v. Inman, 43 Ch. D. 175: 59 L. J. Ch. 274. (b) 41 & 42 Vict. c. 77, s. 23: see 61 & 62 Vict. c. 29, s. 12. (c) Story v. Sheard, [1892] 2 Q. B. 515 61 L. J. M. C. 178. (d) Hambly v. Trott, 1 Cowp. 374. satisfaction, the action died with the person to whom or by whom the wrong was done: but this rule was never extended to such personal actions as were founded upon any obligation, contract, debt, covenant, or any other duty to be performed: for there the action survived (e). (e) 1 Wms. Saund. (ed. 1845) 216 a; see also Williams on Executors, 9th ed. 1593. 698 CHAPTER X. MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. We have in a previous chapter investigated certain rules of the law of evidence which relate peculiarly to the interpretation of written instruments; it is proposed, in these concluding pages, to state some few additional rules of evidence. Very little, however, has been here attempted beyond a statement and brief illustration of them; because, on reflection, it appeared desirable at once to refer the reader to treatises of acknowledged authority on the subject, from which, after patient consideration of the more important cases there indicated, a clear perception of the extensive applicability of the following maxims can alone be derived. Definition customusage. OPTIMUS INTERPRES RERUM USUS. (2 Inst. 282.)-Usage is the best interpreter of things. Custom, consuetudo, is a law not written, established by long usage and the consent of our ancestors (a); and hence it is said that usage, usus, is the legal evidence of custom (b). Moreover, where a law is established by an implied consent, it is either common law or custom; if universal, it is common law (c); if particular to this or that (a) Jacob, Law Dict., tit. "Cus (b) Per Bayley, J., 10 B. & C. 440. law of England, lex non scripta, is nothing but custom;" Judgm., Nuan v. Varty, 3 Curt. 363. But the claim of any particular place to be place, then it is custom. When any practice was, in its origin, found to be convenient and beneficial, it was naturally repeated, continued from age to age, and grew into a law, either local or natural (d). A custom, therefore, or customary law, may be defined to be an usage which has obtained. the force of law, and is, in truth, the binding law, within a particular district, or at a particular place, of the persons and things which it concerns (e): consuetudo loci est observanda (f). There are, however, several requisites to the validity of Custom, when good. a custom, which can here be but briefly specified. First, it must be certain, or capable of being reduced to a certainty (g). Therefore, a custom that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good. And a custom to pay a year's improved value for a fine on a copyhold estate is good; for, although the value is a thing uncertain, yet it may at any time be ascertained (h). Secondly, the custom must be reasonable in itself, or, rather, not unreasonable (i). A custom, however, is not unreasonable merely because it is contrary to a particular exempt from the obligation imposed by the common law, may also be properly called a custom; Id. (d) 3 Salk. 112. Ex non scripto jus venit quod usus comprobavit ; nam diuturni mores consensu utentium comprobati legem imitantur ; I. 1, 2, 9. Consuetudinis jus esse putatur id quod voluntate omnium sine lege vetustas comprobavit -Cic. de Invent. ii. 22. (e) Le Case de Tanistry, Davys, R. 31, 32; cited Judgm., 9 A. & E. 421; and in Rogers v. Brenton, 10 Q. B. 26, 63. (f) 6 Rep. 67: 10 Rep. 139. See Busher v. Thompson, 4 C. B. 48. (g) Bluett v. Tregonning, 3 A. & E. 554, 575 (where the custom (h) 1 Blac. Com. 78; 1 Roll. Abr. (i) 1 Blac. Com. 77. |