independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected (f). It is alleged, indeed, that "the policy of the law refuses to recognize the interest of one person in the death of another" (g)—a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money in other words, because the compensation cannot be adequate there shall be no compensation at all (h). It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the Courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal (i). (f) E. g. Collen v. Wright, Ex. Ch. 8 E. & B. 647, 27 L. J. Q. B. 215 (agent's implied warranty of authority-a doctrine introduced, by the way, for the very purpose of escaping the iniquitous effect of the maxim now in question, by getting a cause of action in contract which could be maintained against executors); Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463, which we shall have to consider hereafter. (g) L. R. 8 Ex. at p. 90, arg. (h) The Roman lawyers, however, seem to have held a like view. "Liberum corpus nullam recipit aestimationem:" D. 9. 3, de his qui effud., 1, § 5; cf. h. t. 7, and D. 9. 1, si quadrupes, 3. See Grueber on the Lex Aquilia, p. 17. (i) Cp. Mr. Horace Smith's remarks on this case (Smith on Negligence, 2nd ed. 256). tions: We now proceed to the exceptions. The first amend- Excepment was made as long ago as 1330, by the statute Statutes of 4 Ed. III. c. 7, of which the English version runs thus: Ed. III. giving right of Item, whereas in times past executors have not had executors actions for a trespass done to their testators, as of the suit for goods and chattels of the same testators carried away in trespasses. their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life. The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators (). It was held not to include injuries to the person or to the testator's freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown (). IV. as to Then by 3 & 4 Will. IV. c. 42 (A.D. 1833) actionable Of Will. injuries to the real estate of any person committed within injuries to six calendar months before his death may be sued upon by property. his personal representatives, for the benefit of his personal estate, within one year after his death: and a man's estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death "to another in respect of his property, real or personal." In this latter case the action must be brought against the wrong-doer's representatives within six months after they have entered on their office. Under this statute (k) See note to Pinchon's case, 9 Co. Rep. 89 a, vol. v. p. 161 in ed. 1826. (1) Twycross v. Grant (1878) 4 C. P. Div. 40, 45, 48 L. J. C. P. 1; Hatchard v. Mège (1887) 18 Q. B. No right of action estate con on personal injury. the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy (m). Nothing in these statutes affects the case of a personal for damage injury causing death, for which according to the maxim to personal there is no remedy at all. It has been attempted to mainsequential tain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that "where the cause of action is in substance an injury to the person," an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property (n). Lord Railway accidents, towards the middle of the present bell's Act: century, brought the hardship of the common law rule into peculiar rights prominence. A man who was maimed or reduced to imcreated by becility by the negligence of a railway company's servants it. might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, A.D. 1846), a statute extremely characteristic of English legislation (o). Instead of abolishing the barbarous rule (m) Woodhouse v. Walker (1880) 5 Q. B. Div. 404, 49 L. J. Q. B. 609. (n) Pulling v. G. E. R. Co. (1882) 9 Q. B. D. 110, 51 L. J. Q. B. 453; cp. Leggott v. G. N. R. Co. (1876) 1 Q. B. D. 599, 45 L. J. Q. B. 557; the earlier case of Bradshaw v. Lancashire and Yorkshire R. Co. (1875) L. R. 10 C. P. 189, 44 L. J. C. P. 148, is doubted, but distinguished as being on an action of contract. (0) It appears to have been suggested by the law of Scotland, which already gave a remedy: see Campbell on Negligence, 20 (2nd edit.); and Blake v. Midland R. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233 (in argument for plaintiff). which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled "An Act for compensating the Families of Persons killed by Accidents": it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but "for the benefit of the wife, husband, parent, and child (p) of the person whose death shall have been so caused." Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury (q). The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf. By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the (p) "Parent" includes father and mother, grandfather and grandmother, stepfather and stepmother. "Child" includes son and daughter, grandson and granddaughter, stepson and stepdaughter: sect. 5. It does not include illegitimate children: Dickinson v. N. E. R. Co. (1863) 2 H. & C. 735, 33 L. J. Ex. 91. There is no reason to doubt that it includes an unborn child. See The George and Richard (1871) L. R. 3 A. & E. 466, which, however, is not of judicial authority on this point, for a few months later (Smith v. Brown (1871) L. R. 6 Q. B. 729) the Court of Queen's Bench held in prohibition that the Court of Admiralty had no jurisdiction to entertain claims under Lord Campbell's Act; and after some doubt this opinion has been confirmed by the House of Lords: Seward v. The Vera Cruz (1884) 10 App. Ca. 59, overruling The Franconia (1877) 2 P. D. 163. (9) Where a claim of this kind is satisfied by payment to executors without an action being brought, the Court will apportion the fund, in proceedings taken for that purpose in the Chancery Division, in like manner as a jury could have done: Bulmer v. Bulmer (1883) 25 Ch. D. 409. Construction of persons for whose benefit the right of action is given by Lord Campbell's Act, may sue in their own names (r). "The The principal Act is inaccurately entitled to begin with Lord (for to a lay reader "accidents" might seem to include Campbell's Act. inevitable accidents, and again, "accident" does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell's Act to show that the deceased would not himself have sustained pecuniary loss. statute. . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle" (s). But "the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean" (t). It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages (u); nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction (); they must show "a reasonable (r) Also, by sect. 2, "money paid into Court may be paid in one sum, without regard to its division into shares" (marginal note). (8) Erle C. J., Pym v. G. N. R. Co. (1863) Ex. Ch. 4 B. & S. at p. 406. (t) Pollock C. B. in Franklin v. S. E. R. Co. (1858) 3 H. & N. at P. 213. (u) Duckworth v. Johnson (1859) 4 H. & N. 653, 29 L. J. Ex. 25. (x) Blake v. Midland R. Co. (1852) |