action by force of the maxim actio personalis moritur cum persona, Broom's Legal Maxims, 904. The first is a matter of procedure, purely so, and Congress has made its own rule, as it may, and by the Practice Conformity Act likewise adopted the state practice where its own legislation does not control. At common law every suit whether founded on contract or tort, abated by the death of either party, and could' proceed no further. It absolutely perished.

The maxim that personal actions founded on torts do not survive the death of the wrong doer applies to all personal wrongs, whether they arise ex contractu or ex delicto, as the administrator represents the personal estate, and not the personal wrongs of the intestate. Whether the action survives does not depend on its form, nor upon what it is founded on unless there was injury to the personal estate. If an action of tort grows out of a contract it takes the nature of the action of contract and vice versa and does not survive.

One class of English statutes having the force of common law with us abrogated this rule and allowed the executor or administrator to come in voluntarily or be brought in by scire facias. It was a condition of these statutes that the revival could take place only "if such action might be originally prosecuted or maintained by or against the executors or administrators of the party dying;" that is to say, provided the "cause of action" should be unaffected by the deadly force of the above cited maxim. Now where or when it was so unaffected was and is one of the most perplexing subjects, because another class of English statutes modified the maxim and it was, under their influence, still more restricted by judicial decision or opinion, being, perhaps, the basis of most of the modern decisions and legislation upon the subject. The decisions upon which depend the survivability of

1 Chamberlain v. Williamson, 2 Maule & S. 415; Hambly v. Trott, Cowp. 372. Kingdon v. Nottle, 1 Maule & S. 355; Lucy v. Levington, 2 Lev. 26, 1 Vent. 176.

3 Buddle v. Willson, 6 T. R. 369; Powell v. Layton, 2 Bos. & P. N. R. 365. 17 Car. II. chap. 8; 8 & 9 Wm. III. chap. 11; Fost. Sci. Fa. 174, 186-200. Fost. Sci. Fa. 187.

Hambly v. Trott, Cowp. 371.

causes of action and the law upon the subject are neither clear nor fixed at the present day in England.'

Under the American decisions it is difficult to find a standard by which to test whether any given cause of action is personal only, which should die with the wrong-doer or with the physical sufferer from it.' Congress cannot say what causes of action shall or shall not survive to or against executors and administrators. It cannot create rights of property, whether of the survivability of causes of action or what not, except as to patent rights, copyrights, and the like subjects within its exclusive jurisdiction. As to other causes it has no power to determine their survivability although it has the power to regulate the abatement of suits in its own courts. The Act of Congress does not attach to the right of revival conditions affecting the survivability of causes of action but adopts the local law of the state in that behalf. The right of action is given by local statute, the right of revival of the suit is conferred by an Act of Congress commencing with § 31 of the original Judiciary Act of 1789. It is held that the original Act of 1789 applied only to personal actions and that real actions still abate as at common law in the Federal courts."

The Code of Tennessee of 1858, § 2845, enacts that "Actions do not abate by the death, marriage or other disability of either party or by transfer of any interest therein, if the cause of action survive or continue." This section does not provide for the survivability of any causes of action, but the section does not declare the whole law of the subject as it then existed. It enacts from the Act of 1836 the declaration that actions (suits) shall not abate by the death, as they did not under former acts, and from other acts the same declaration as to the affect of marriage, etc., if they survive; but it did not undertake to enact-as did the Act of 1836 and only that Act--that the commencement of a suit should, with certain exceptions, endow the cause of action embodied in the suit with the quality of survivability. Section 2846 declares that "No

'Twycross v. Grant, L. R. 4 C. P. Div. 40; Phillips v. Homfray, L. R. 24 Ch. Div. 439; Finlay v. Chirney, 20 Q. B. Div. 494.

122 Am. Law Reg. 353, 425; 2 Alb. L. J. 187; 33 Alb. L. J. 184, 204: 1 Chitty, Pr. 137.

$1 Stat. at L. 90, chap. 20; Rev. Stat. § 955.

+Macker v. Thomas, 20 U. S. 7 Wheat. 530, 5 L. ed. 515.

civil actions commenced, whether founded on wrongs or contracts, except actions affecting the character of the plaintiff shall abate by death of either party, but may be revived." This section declares the survivability of certain actions, those upon which suit is brought when death occurs, but it does not provide for survivability as to any causes of action whatever upon which suit has not been brought. As far back as 1831, chap. 17, the statutes provide for the survivability of the "right of action" for injury to the person where death was caused by injury and not to any other "cause of action whatever." Mill & V. Code established as an exception to the general rule actions for injuries resulting in the death of the victim of the wrong, and such suits may be brought after the death."

§ 168. Action for Death Caused by Defendant's

Negligence.

It is for the state to prescribe when and under what circumstances a cause of action shall arise against a person or corporation, operating within its limits by reason of an act done by it. It may provide that for an injury done by the carelessness of such person or corporation there shall be no cause of action on behalf of the injured party, but punishment by indictment only; or it may give such injured party the cause of action and for the same injury make the corporation responsible by indictment or other proceedings for a fine or damages which shall go to the state, to the representatives of the injured party, or to any other person named.'

By the ancient common law, as it existed before the statute of Edward III., in which no action ex delicto survived to the personal representative, the maxim actio personalis moritur cum persona is of universal application. Subsequent to the statute

'ES 2291, 2294, Thompson & S. Code, §§ 3130-3135.
Fowlkes v. Nashville & D. R. Co. 9 Heisk. 829; Collins v. East Tennessee &
V. R. Co. 9 Heisk. 841; Bream v. Brown, 5 Coldw. 173; Cherry v.
Hardin, 4 Heisk. 199; Baker v. Dansbee, 7 Heisk. 229; Bolin v. Stewart,
7 Baxt. 298; Trafford v. Adams Exp. Co. 8 Lea, 96; Akers v. Akers, 16
Lea, 7; Thompson & S. Code, §§ 2845, 2846; Mill. & V. Code, 3559, 3560.
Davis v. New York & N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301;
Com. v. Metropolitan R. Co. 107 Mass. 236.

•Wilbur v. Gilmore, 21 Pick. 250; Eden v. Lexington & F. R. Co. 14 B. Mon. 204.

of Edward III., which was liberally construed, an action for a tort, by which the personal property of one is injured or destroyed, survives to his administrator, such tort being an injury to the property which otherwise would have descended to him. But the theory that a personal injury to an individual was limited to him only, that no one else suffered thereby, and that therefore by his decease the cause of action itself ceased to exist, continued.'

At common law it was considered inconsistent with the settled policy of the law, to permit the value of human life to be submitted to the jury on a question of damages. The only cases in which there seems to be recognition of the right to bring such an action was where damages were recovered for the killing of a slave in which the absolute right of property in the slave was involved,* and an action in which the father was permitted to recover for the loss of service, where his son was killed by the defendant. The last case was an exceptional ruling, no question, apparently having been presented to the court involving the right of action. The authorities, with these exceptions, are uniform in recognition of the common law rule against the right of action, the right being always denied except by aid of a statute."

The authorities are so numerous and uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. It has been decided in many cases in the

'Kearney v. Boston & W. R. Corp. 9 Cush. 108; Hollenbeck v. Berkshire R. Co. 9 Cush. 480; Cummings v. Bird, 115 Mass. 346; Stebbins v. Palmer, 1 Pick. 71, 78, 79; Wilbur v. Gilmore, 21 Pick. 250; Smith v. Sherman, 4 Cush. 408. 412; Davis v. New York & N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301; Soule v. New York & N. H. R. Co. 24 Conn. 575; Murphy v. New York & N. H. R. Co. 30 Conn. 188.

'Hyatt v. Adams, 16 Mich. 180; Connecticut Mut. L. Ins. Co. v. New York &N. H. R. Co. 25 Conn. 265.

3 Smith v. Weaver, Taylor, 58.

• Ford v. Monroe, 20 Wend. 210; Lynch v. Davis, 12 How. Pr. 323. Indianapolis, P. & C. R. Co. v. Keely, 23 Ind. 133; Skinner v. Housatonic R. Co. 1 Cush. 475; Connecticut Mut. L. Ins. Co. v. New York & N. H. R. Co. 25 Conn. 272; Green v. Hudson River R. Co. 2 Keyes, 294; Kramer v. San Francisco St. R. Co. 25 Cal. 434; Selma R. & D. R. Co. v. Lacey, 49 Ga. 106; Eden v. Lexington & F. R. Co. 14 B. Mon. 204; Pennsylvania R. Co. v. Adams, 55 Pa. 499; Mobile L. Ins. Co. v. Brame, 95 U. S. 754, 24 L. ed. 580.

English courts and in many of the state courts and no deliberate, well considered decision to the contrary has been found.'

Where plaintiff alleged the loss of the wife's comfort, benefit and assistance in domestic affairs which he might and otherwise would have had, to his damage, a demurrer to the complaint has been made upon the ground that the facts alleged constituted no cause of action, and the Court of Appeals has sustained it."

Where an injury received through the negligence of another person results in the death of the party injured, no remedy can be had therefor at the common law, because personal actions under that law died with the person; and even though the person died during its pendency, it could not be revived by his personal representatives. In the absence of a statutory provision therefor, an admiralty libel cannot be enforced for damages resulting from personal injury and death while unloading the cargo of a vessel.

The common law remained unchanged until the passage of Lord Campbell's Act,' which gave an action in favor of husband and parent, as well as of a wife and child for an injury occasioned by death through the act of another. By this Act it is provided that: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain the

'See Baker v. Bolton, 1 Campb, 493; Connecticut Mut. L. Ins. Co. v. New York & N. H. R. Co. 25 Conn. 265; Kramer v. San Francisco St. R. Co. 25 Cal. 434; Indianapolis, P. & C. R. Co. v. Keely, 23 Ind. 133; Hyatt v. Adams, 16 Mich. 180; Shields v. Yonge, 15 Ga. 349; Peoria, M. & F. Ins. Co. v. Frost, 37 Ill. 333.

Green v. Hudson River R. Co. 2 Keyes, 294; Hubgh v. New Orleans & C. R. Co. 6 La. Ann. 495. See also Herman v. New Orleans & C. R. Co. 11 La. Ann. 5; Mobile L. Ins. Co. v. Brame, 95 U. S. 754, 24 L. ed. 580. Higgins v. Butcher, Yelv. 89; Baker v. Bolton, 1 Campb. 493; Connecticut Mut. L. Ins. Co. v. New York & N. H R. Co. 25 Conn. 275; Long v. Morrison, 14 Ind. 595; Stewart v. Terre Haute & I. R. Co. 1 West. Rep. 152, 103 Ind. 44; Eden v. Lexington & F. R. Co. 14 B. Mon. 204; State v. Grand Trunk R. Co. 58 Me. 176; Carey v. Berkshire R. Co. 1 Cush. 475; Kearney v. Boston & W. R. Corp. 9 Cush. 108; Hyatt v. Adams, 16 Mich. 180; Missouri Pac. R. Co. v. Lewis, 2 L. R. A. 68, 24 Neb. 848; Wyatt v. Williams, 43 N. H. 102; State v. Manchester & L. R. Co. 52 N. H. 528; Lucas v. New York Cent. R. Co. 21 Barb. 245; Campbell v. Rogers, 2 Handy, 110; Worley v. Cincinnati, H. & D. R. Co. 1 Handy, 481; Books v. Danville, 95 Pa. 158; Mobile L.,Ins. Co. v. Brame, 95 U. S. 754, 24 L ed. 580.

*Welsh v. The North Cambria, 39 Fed. Rep. 615.

59 & 10 Vict. chap. 93.

*Grosso v. Delaware, L. & W. R. Co. 50 N. J. L. 317. '