$ 39 What rights of Action arising from Torts survive under the Statute of 3 Edward III.

" 166

"At common law, in the case of injuries to personal property, if either party died, in general, no action could be supported, either by or against the personal representatives of the parties, where the action must have been in form ex delicto, and the plea, not guilty." But the statute of 3 Edw. III. c. 8, having always been in force in this country, may so far, and the decisions under it, be treated as part of the common law-they certainly embody the general law upon the subject, when not changed by our own statute--and, according to them, every kind of injury to personal property by which it has been rendered less beneficial to the estate gives a right of action which survives to the personal representative,107 leaving the right which springs from personal injuries to die with the party.

§ 40. The Statute in the Code States-New York, Missouri, and Arkansas.

The substance of the above view, in more definite form, is embodied in the New York Revised Statutes, as follows: "Sec. 1. For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer; and, after his death, against his executor or administrator, in the same man

sale of a right to file a bill for fraud, which is against public policy. The question is well discussed in McMahon v. Allen, 35 N. Y. 403, and the right to purchase such property with its incidents is sustained. Lord Romilly is quoted as distinguishing between the sale of a bare right to sue in the particular case, and the sale of the property concerning which the suit is brought. The sale or assignment of the property carries with it, as an incident, the right to file a bill to set aside a previous sale obtained by fraud. In Smith v. Harris, 43 Mo. 557, the court sustained the right of one in possession of land as owner, but by a defective title, to purchase the outstanding title, and take advantage of a fraud theretofore practiced upon him who held it by which he had been induced to convey it to the defendants.

166 1 Chit. Pl. 68.

167 1 Chit. Pl. 69.

ner and with like effect in all respects as in actions founded ou con tract. Sec. 2. The preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or the person of the testator or intestate of any executor or administrator." 188 These sections are copied into the Missouri act concerning administration of estates.160 They are varied, however, in Arkansas to read as follows: "For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or after his death, by his executor or administrator, against such wrong-doer; or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as in actions founded on contracts. Nothing in the preceding section shall be so construed as to extend its provisions to actions of slander or libel." 170

§ 41.

Continued - Kansas, Nebraska, Ohio, Indiana, and

Iowa.

The Kansas 171 and Nebraska 172 codes of procedure provide as follows:

"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same. No action pending in any court shall abate by the death of either or both the par- . ties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate for the death of the defendant." These sections were copied from the original Code of Ohio, but in the lat

168 2 Rev. St. N. Y. 447, 448; 3 Rev. St. 1875, p. 732.

169 Wag. St. 87; Rev. St. 1879, §§ 96, 97. See Haight v. Hayt, 19 N. Y. 464, and Smith v. Kennett, 18 Mo. 154.

170 Gantt's Dig. 1874, §§ 4760, 4761; Mansf. Dig. 1884, §§ 5223, 5224 171 Civ. Code, §§ 420, 421.

172 Code Civ. Proc. §§ 454, 455.

ter State they have been repealed and the following substituted: "Except as otherwise provided no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party."

"173

The Indiana Code of Procedure 174 provides that a "cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, malicious prosecution, and false imprisonment. All other causes of action survive, and may be brought by or against the deceased party, except actions for promises to marry." The Iowa General Code places all wrongs arising from torts upon the same footing, by providing 175 that "all causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to the

same."

§ 42. Continued-Wisconsin, Kentucky, Oregon, and

Minnesota.

The Wisconsin statute 176 is as follows: "In addition to the actions which survive at common law, the following shall also survive, that is to say: actions for the recovery of personal property or the unlawful conversion thereof; actions for assault and battery, or unlawful imprisonment, or for goods taken or carried away; and actions for damages to real or personal property." In Kentucky it is enacted 1 that "no right of action for personal injury or injury to real or personal estate shall cease or die with the person injuring or the person injured, except actions for assault and battery, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury." For oth

177

173 Rev. St. 1880, § 5144.

174 Sections 782, 783, as amended by Rev. St. 1881, §§ 282, 283.

175 Code 1873, § 2525.

176 Rev. St. 1871, p. 1573, c. 135, § 2; Rev. St. 1878, § 4253.

177 Gen. St. 1873, p. 179; Gen. St. 1883, p. 179.

178

er injuries, an action lies the same as upon contract. In Oregon a cause of action arising out of an injury to the person dies with the person of either party, except when the death is caused by the wrongful act or omission of another, and when the person injured might have sued had he lived, and except certain provisions in relation to actions pending when a party dies; and in Minnesota the law1 is substantially the same. All other rights of action survive to and against the personal representative.

43. Construction of these Statutes.

The language of the several enactments would seem to be so clear as to admit of little or no construction. In New York the provision quoted in section 40 has been several times brought to the consideration of the Supreme Court and of the Court of Appeals. In Zabriskie v. Smith the action was for deceit, and it appeared that the defendant had falsely and fraudulently represented a certain person to be solvent in consequence of which the plaintiffs had trusted him with goods and lost the debt. Some of the plaintiffs had assigned their interest in the claim, and the court, without appearing to note the language of the statute, held that the claim was not assignable. 180 The same court, shortly after, in HAIGHT v. HAYT,181 sus

178 Gen. Laws 1872, p. 187.

179 2 St. at Large 1873, p. 913, §§ 24, 25; Gen. St. 1878, p. 825.

180 Zabriskie v. Smith, 13 N. Y. 322. The opinion in this case is hardly sus tainable, either under the English statute or that of New York. The learned judge who delivered the opinion (Denio) refers to Chamberlain v. Williamson, 2 Maule & S. 408, and quotes some of the language of Lord Ellenborough. The latter action was for a breach of promise of marriage, and was brought by the administrator of the promisee. The justice says: "Executors and administrators are the representatives of the personal property-that is, the debts and goods of the deceased-but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate," etc. In Zabriskie v. Smith, it is clear that the plaintiffs had suffered a wrong which operated to the injury of their personal estate. It was not a personal wrong merely, like an assault or slander, but by means of it the plaintiffs were induced to part with their property. Nor does the judge appear to have noted the language of the second section of the New York statute, which, by naming the causes of action which do not survive, implies that all others do. 181 19 N. Y. 464; [People v. Tioga Common Pleas, 19 Wend. 73; Graves v.

tained an action against the administrator of one who had practiced fraud in the sale of a farm; and in BYXBIE v. WOOD,182 also sustained an action by an assignee of one who, by fraudulent representations, had been induced to part with money. In each of these cases the court practically annuls the doctrine of Zabriskie v. Smith, notes the exceptions contained in the second section of the statute, and holds that they show the legislative intention to be that all other causes of action founded on a tort should survive.183 The Missouri statute is the same as that of New York. An action was sustained in that state against the administrator of one who had fraudulently induced the plaintiff to marry him, by concealing the fact that he had another wife living; she was allowed to recover for the value of her services as housekeeper, but not for the personal injury.18 In another case the administrator of a father was permitted to recover damages arising from negligently killing a minor son, but only so far as they had accrued during the father's life, for the loss of the son's services. 185 The Kentucky statute quoted in section 42 is substantially the same as that of 1812, and it is held in that state, in an action brought by persons held as slaves against certain heirs who had destroyed the will of their ancestor, by which they had been emancipated, that the cause of action survived against the

Spier, 58 Barb. 349. Right of action against a city arising out of a tort may be assigned. Weire v. Davenport, 11 Iowa, 49; Tyson v. McGuineas, 25 Wis. 656; Hardin v. Helton, 50 Ind. 319.]

182 24 N. Y. 607.

183 A right of action springing from a personal injury caused by the negli gence of the servants of a railroad company is held not to be assignable. Hodgman v. Western R. Corp., 7 How. Pr. 492.

184 Higgins v. Breen, 9 Mo. 497. The court held that defendant's intestate, if living, would not be permitted to set up the fraud as a defense to show that there was no implied promise to pay for the work and labor.

185 James v. Christy, 18 Mo. 162. Scott, J., in this case says: "The father was entirely deprived of all property in his son's services. The recovery will be limited to the value of the services. The administrator will not be entitled to any remuneration for the loss of the society or comforts afforded by a child to its parent. Damages of this character died with the parent, and his estate is entitled to compensation only so far as it has been lessened by the loss of the son's services. The father was no longer entitled to these services than during his life."