the parties were allowed, instead of an actual deposit, to give security in the amount required. Our knowledge of all these actions is exceedingly lier jurisprudence preserved in literary works, slight, being derived from fragments of the earlaboriously pieced together by commentators, and the numerous gaps filled out by aid of ingenious and most copious conjectures. They bear all those marks which might have been expected of their origin in a barbarous or semi-barbarous age, among a people little skilled in the science of jurisprudence, and having no acquaintance with the refined distinctions and complex business transactions of civilized life. They were all of that highly symbolical character found among men of rude habits but lively imaginations. They abounded in sacramental words and signifirigid in their application, they possessed a charcant gestures, and, while they were inflexibly were recovered both the actual damages and a penalty in addition. These classes, actiones poenales and actiones mixte, comprehended cases of injuries, for which the civil law permitted redress by private action, but which modern civilization universally regards as crimes; that is, offences against society at large, and punished by proceedings in the name of the state alone. Thus, theft, receiving stolen goods, robbery, malicious mischief, and the murder or negligent homicide of a slave (in which case an injury to property was involved), gave rise to private actions for damages against the delinquent; Inst. 4. 1. De obligationibus quæ ex delicto nascuntur; id. 2. De bonis vi raptis; id. 3. De lege Aquilia. And see Mackeldey, Civ. L. §acter almost sacred, so that the mistake of a 196; 5 Savigny, System, §§ 210-212. In respect to the mode of procedure; actiones in personam are divided into stricti juris, and bona fidei actiones. In the former the court was confined to the strict letter of the law; in the latter something was left to the discretion of the judge, who was governed in his decision by considerations of what ought to be expected from an honest man under circumstances similar to those of the plaintiff or defendant. Mackeldey, Civ. L. § 197 a. It would not only be foreign to the purpose of this work to enter more minutely into a discussion of the Roman actio, but it would require more space than can here be afforded, since in Savigny's System there are more than a hundred different species of actio mentioned, and even in the succinct treatise of Mackeldey nearly eighty are enumerated. In addition to the works cited in passing may be added the Introduction to Sandars Justinian, which may be profitably consulted by the student. To this brief explanation of the most important classes of actiones we subjoin an outline of the Roman system of procedure. From the time of the twelve tables (and probably from a much earlier period) down to about the middle of the sixth century of Rome, the system of procedure was that known as the actiones legis. Of these but five have come down to us by name: the actio sacramenti, the actio per judicis postulationem, the actio per condictionem, the actio per manus injectionem, and the actio per pignoris capionem. The first three of these were actions in the usual sense of the term; the last two were modes of execution. The actio sacramenti is the best known of all, because, from the nature of the questions decided by means of it, which included those of status, of property ex jure Quiritium, and of successions; and from the great popularity of the tribunal, the centumviri, which had cognizance of these questions, it was retained in practice long after the other actions had succumbed to a more liberal system of procedure. As the actio sacramenti was the longest-lived, so it was also the earliest, of the actiones leges; and it is not only in many particulars a type of the whole class, but the other species are conceived to have been formed by successive encroachments upon its field. The characteristic feature of this action was the sacramentum, a pecuniary deposit made in court by each party, which was to be forfeited by the loser. Subsequently, however, word or the omission of a gesture might cause the loss of a suit. In the nature of things, such a system could not maintain itself against the advance of civilization, bringing with it increased complications in all the relations of man to man; and accordingly we find that it gradually, but sensibly, declined, and that at the time of Justinian not a trace of it existed in practice. See 3 Ortolan, Justinian, 467 et seq. About the year of Rome 507 began the introduction of the system known as the procedure per formulam or ordinaria judicia. An important part of the population of Rome consisted of foreigners, whose disputes with each other or with Roman citizens could not be adjusted by means of the actiones leges, these being entirely confined to questions of the strict Roman law, which could only arise between Roman citizens. To supply the want of a forum for foreign residents, a magistrate, the prætor peregrinus, was constituted with jurisdiction over this class of suits, and from the procedure established by this new court sprang the formulary system, which proved so convenient in practice that it was soon adopted in suits where both parties were Roman citizens, and gradually withdrew case after case from the domain of the legis actiones, until few questions were left in which that cumbrous procedure continued to be employed. The An important feature of the formulary system, though not peculiar to that system, was the distinction between the jus and the judicium, between the magistrate and the judge. magistrate was vested with the civil authority, imperium, and that jurisdiction over law-suits which in every state is inherent in the supreme power; he received the parties, heard their conflicting statements, and referred the case to a special tribunal of one or more persons, judex, arbiter, recuperatores. The function of this tribunal was to ascertain the facts and pronounce judgment thereon, in conformity with a special authorization to that effect conferred by the magistrate. Here the authority of the judge ended; if the defeated party refused to comply with the sentence, the victor must again resort to the magistrate to enforce the judgment. From this it would appear that the functions of the judge or judges under the Roman system corresponded in many respects with those of the jury at common law. They decided the question of fact submitted to them by the magistrate, as the jury decides the issue eliminated by the pleadings; and the decision made their functions ceased, like those of the jury. As to the amount at stake, the magistrate, in cases admitting it, had the power to fix the sum in dispute, and then the judge's duties were con ACTIO fined to the simple question whether the sum specified was due the plaintiff or not; and if he increased or diminished this amount he subjected himself to an action for damages. In other cases, instead of a precise sum, the magistrate fixed a maximum sum, beyond which the judge could not go in ascertaining the amount due; but in most cases the magistrate left the amount entirely to the discretion of the judge. 106 ACTIO CONDICTIO INDEBITATI like the common-law pleadings, affirmatively. Thus: "Si paret Numerium Negidium Aulo Agerio X millia dare oportere (intentio); si in ea re nihil dolo malo Auli Agerii factum sit neque fiat (exceptio); Si non, etc. (replicatio)." In preparing the formula the plaintiff presented to the magistrate his demonstratio, intentio, etc., which was probably drawn in due form under the advice of a jurisconsult; the defendant then presented his adjectiones, the plaintiff responded with his replications, and so on. The magistrate might modify these, or insert new adjectiones, at his discretion. After this discussion in jure, pro tribunali, the magistrate reduced the results to form, and sent the formula to the judge, before whom the parties were confined to the case thus settled. See 3 Ortolan, Justinian, §§ 1909 et seq. The directions of the magistrate to the judge were made up in a brief statement called the formula, which gives its name to this system of procedure. The composition of the formula was governed by well-established rules. When complete, it consisted of four parts, though some of these were frequently omitted, as they were unnecessary in certain classes of actions. The first part of the formula, called the demonstratio, re- The procedure per formulam was supplanted cited the subject submitted to the judge, and in course of time by a third system, extraordiconsequently the facts of which he was to take naria judicia, which in the days of Justinian had cognizance. It varied, of course, with the sub- become universal. The essence of this system ject-matter of the suit, though each class of consisted in dispensing with the judge altogether, cases had a fixed and appropriate form. This so that the magistrate decided the case himself, form, in an action by a vendor against his vendee, and the distinction between the jus and the judiwas as follows: "Quod Aulus Agerius Numerio cium was practically abolished. This new system Negidio hominem vendidit;" or, in case of a bail- commenced with usurpation by the magistrates, ment, "Quod Aulus Agerius apud Numerium in the extension of an exceptional jurisdiction, Negidium hominem deposuit." The second part which had existed from the time of the leges of the formula was the intentio: in this was stated actiones, to cases not originally within its scope. the claim of the plaintiff, as founded upon the Its progress may be traced by successive enactfacts set out in the demonstratio. This, in a ques- ments of the emperors, and was so gradual that, tion of contracts, was in these words: "Si paret even when it had completely undermined its preNumerium Negidium Aulo Agerio sestertium X decessor, the magistrate continued to reduce to milia dare oportere," when the magistrate fixed writing a sort of formula representing the result the amount; or, “Quidquid paret Numerium Negi- of the pleadings. In time, however, this last dium Aulo Agerio dare facere oportere," when he relic of the former practice was abolished by an left the amount to the discretion of the judge. imperial constitution. Thus the formulary sysIn a claim of property the form was, "Si paret tem, the creation of the great Roman jurisconhominem ex jure Quiritium Auli Agerii esse." sults, was swept away, and carried with it in its The third part of the complete formula was the fall all those refinements of litigation in which adjudicatio, which contained the authority to the they had so much delighted. Thenceforth the judge to award to one party a right of property distinctions between the forms of actions were no belonging to the other. It was in these words: longer regarded, and the word actio, losing its "Quantum adjudicari oportet, judex Titio adjudi- signification of a form, came to mean a right, cato. The last part of the formula was the con- jus persequendi in judicio quod sibi debetur. demnatio, which gave the judge authority to pronounce his decision for or against the defendant. It was as follows: "Judex, Numerium Negidium Aulo Agerio sestertium X milia condemna: si non when the amount was fixed; paret, absolve,' Juder, Numerium Negidium Aulo Agerio or, dumtaxat X milia condemna: si non paret, absolvito," when the magistrate fixed a maximum; or, " Quanti ea res erit, tantam pecuniam, judex, Numerium Negidium Aulo Agerio condemna: si non paret, absolvito," when it was left to the dis 66 cretion of the judge. Of these parts, the intentio and the condemnatio were always employed: the demonstratio was sometimes found unnecessary, and the adjudicatio only occurred in three species of actions-familia erciscundæ, communi dividundo, and finium regundorum-which were actions for division of an inheritance, actions of partition, and suits for the rectification of boundaries. The above are the essential parts of the formula in their simplest form; but they are often enlarged by the insertion of clauses in the demonstratio, the intentio, or the condemnatio, which were useful or necessary in certain cases: these clauses are called adjectiones. When such a clause was inserted for the benefit of the defendant, containing a statement of his defence to the claim set out in the intentio, it was called an exceptio. To this the plaintiff might have an answer, which, when inserted, constituted the replicatio, and so on to the duplicatio and triplicatio. These clauses, like the intentio in which they were inserted, were all framed conditionally, and not, See Ortolan, Hist. no. 392 et seq.; id. Instit. nos. 1833-2067; 5 Savigny, System, §6; Sandars, Justinian, Introduction; Gaius, by Abdy & Walker. ACTIO BONÆ FIDEI (Lat. an action of good faith). In Civil Law. A class of actions in which the judge might at the trial, ex officio, take into account any equitable circumstances that were presented to him affecting either of the parties to the action; 1 Spence, Eq. Jur. 218. ACTIO COMMODATI CONTRARIA. In Civil Law. An action by the borrower against the lender, to compel the execution of the contract; Pothier, Prêt à Usage, n. 75. ACTIO COMMODATI DIRECTA. In Civil Law. An action by a lender against a borrower, the principal object of which is to obtain a restitution of the thing lent; Pothier, Prêt à Usage, nn. 65, 68. ACTIO COMMUNI DIVIDUNDO. In Civil Law. An action for a division of the property held in common; Story, Partn., Bennett, ed. § 352. ACTIO CONDICTIO INDEBITATI. In Civil Law. An action by which the plaintiff recovers the amount of a sum of money or other thing he paid by mistake; Pothier, Promutuum, n. 140; Merlin, Rép. ACTIO EX CONDUCTO ACTIO EX CONDUCTO. In Civil Law. An action which the bailor of a thing for hire may bring against the bailee, in order to compel him to re-deliver the thing hired; Pothier, du Contr. de Louage, n. 59; Merlin, Rép. ACTIO EX CONTRACTU. See Ac TION. ACTIO EX DELICTO. See ACTION. ACTIO DEPOSITI CONTRARIA. In Civil Law. An action which the depositary has against the depositor, to compel him to fiulfil his engagement towards him; Pothier, Du Dépôt, n. 69. ACTIO DEPOSITI DIRECTA. In Civil Law. An action which is brought by the depositor against the depositary, in order to get back the thing deposited; Potheir, Du Dépôt, n. 60. ACTIO AD EXHIBENDUM. In Civil Law. An action instituted for the purpose of compelling the person against whom it was brought to exhibit some thing or title in his power. It was always preparatory to another action, which lay for the recovery of a thing movable or immovable; 1 Merlin, Quest. de Droit, 84. ACTIO IN FACTUM. In Civil Law. An action adapted to the particular case which had an analogy to some actio in jus which was founded on some subsisting acknowledged law; Spence, Eq. Jur. 212. The origin of these actions is strikingly similar to that of actions on the case at common law. See CASE. ACTIO FAMILIÆ ERCISCUNDÆ. In Civil Law. An action for the division of an inheritance; Inst. 4. 6. 20; Bracton, 100 b. plaintiff ought not to have or maintain his aforesaid action thereof against" the defendant (in Latin, actio non habere debet). It follows immediately after the statement of appearance and defence; 1 Chitty, Plead. 531; 2 id. 421; Stephens, Plead. 394. ACTIO NON ACCREVIT INFRA SEX ANNOS (Lat.). The action did not accrue within six years. In Pleading. A plea of the statute of limitations, by which the defendant insists that the plaintiff's action has not accrued It differs from non aswithin six years. sumpsit in this: non assumpsit is the proper plea to an action on a simple contract, when it does not accrue on the promise, but subsethe action accrues on the promise; but when quently to it, the proper plea is actio non accrevit, etc.; Lawes, Plead. 733; 5 Binn. 200, 203; 2 Salk. 422; 2 Saund. 63 b. ACTIO PERSONALIS. A personal action. The proper term in the civil law is actio in personam. ACTIO PERSONALIS MORITUR CUM PERSONA (Lat.). A personal action dies with the person. In Practice. A maxim which formerly expressed the law in regard to the surviving of personal actions. To render the maxim perfectly true, the expression "personal actions" must be restricted very much within its usual limits. In the most extensive sense, all actions are personal which are neither real nor mixed, and in this sense of the word personal the maxim is not true. A further distinction, moreover, is to be made between personal actions actually commenced and pending at the death of the plaintiff or defendant, and causes of action upon which suit might have been, but in his lifetime. In the case of actions actuwas not, brought by or against the deceased elapsed after the rendition of judgment, in ally commenced, the old rule was that the suit abated by the death of either party. which the judge issued his warrant to seize, But the inconvenience of this rigor of the first, the movables, which were sold within common law has been modified by statutory eight days afterwards; and then the immov-provisions in England and the states of this ables, which were delivered in pledge to the creditors, or put under the care of a curator, and if, at the end of two months, the debt was not paid, the land was sold; Dig. 42. 1; Code, 8. 34. ACTIO JUDICATI. In Civil Law. An action instituted, after four months had According to some authorities, if the defendant then utterly denied the rendition of the former judgment, the plaintiff was driven to a new action, conducted like any other action, which was called actio judicati, and which had for its object the determination of the question whether such a judgment had been rendered. The exact meaning of the term is by no means clear. See Savigny, Syst. 305, 411; 3 Ortolan, Just. § 2033. ACTIO MANDATI. In Civil Law. An action founded upon a mandate; Dig. 17. 1. ACTIO NON. In Pleading. The declaration in a special plea "that the said when the cause of action survives to or country, which prescribe in substance that against the personal representatives of the deceased, the suit shall not abate by the death tution of the personal representatives on the of the party, but may proceed on the substi. record by scire facias, or, in some states, by See 6 Wheat. 260. And this brings us to the simple suggestion of the facts on the record. consideration of what causes of action sur vive. CONTRACTS.-It is clear that, in general, for his breach of contract on the one hand, a man's personal representatives are liable and, on the other, are entitled to enforce contracts made with him. This is the rule; but it admits of a few exceptions; 6 Me. 470; 2 D. Chipm. Vt. 41. No action lies against executors upon a covenant to be performed by the testator in ACTIO PERSONALIS person, and which consequently the executor cannot perform, and the performance of which is prevented by the death of testator; 3 Wils. Ch. 99; Cro. Eliz. 553; 1 Rolle, 359; as if an author undertakes to compose a work, or a master covenants to instruct an apprentice, but is prevented by death. See Wms. Exec. 1467. But for a breach committed by deceased in his lifetime, his executor would be answerable; Cro. Eliz. 553; 1 Mees. & W. 423, per Parke, B.; 19 Penn. 234. As to what are such contracts, see 2 Perr. & D. 251; 10 Ad. & E. 45; 1 Mees. & W. 423; 1 Tyrwh. 349; 2 Strange, 1266; 2 W. Bla. 856; 3 Wils. 380. But whether the contract is of such a nature is a mere question of construction, depending upon the intention of the parties; Hob. 9; Yelv. 9; Cro. Jac. 282; 1 Bingh. 225; unless the intention be such as the law will not enforce; 19 Penn. 233, per Lowrie, J. 108 Again, an executor, etc. cannot maintain an action on a promise made to deceased where the damage consisted entirely in the personal suffering of the deceased without any injury to his personal estate, as a breach of promise of marriage; 2 Maule & S. 408; 4 Cush. 408. And as to the right of an executor or administrator to sue on a contract broken in the testator's lifetime, where no damage to the personal estate can be stated, see 2 Cromp. M. & R. 588; 5 Tyrwh. 985, and the cases there cited. The fact whether or not the estate of the deceased has suffered loss or damage would seem to be the criterion of the right of the personal representative to sue in another class of cases, that is, where there is a breach of an implied promise founded on a tort. For where the action, though in form ex contractu, is founded upon a tort to the person, it does not in general survive to the executor. Thus, with respect to injuries affecting the life and health of the deceased; all such as arise out of the unskilfulness of medical practitioners; or the imprisonment of the party occasioned by the negligence of his attorney, no action, generally speaking, can be sustained by the executor or administrator on a breach of the implied promise by the person employed to exhibit a proper portion of skill and attention; such cases being in substance actions for injuries to the person; 2 Maule & S. 415, 416; 8 Mees. & W. 854. And it has been held that for the breach of an implied promise of an attorney to investigate the title to a freehold estate, the executor of the purchaser cannot sue without stating that the testator sustained some actual damage to his estate; 4 J. B. Moore, 532. But the law on this point has been considerably modified by statute. On the other hand, where the breach of the implied promise has occasioned damage to the personal estate of the deceased, though it has been said that an action in form ex contractu founded upon a tort whereby damage has been occasioned to the estate of the deceased, ACTIO PERSONALIS as debt against the sheriff for an escape, does not survive at common law, 1 Ga. 514 (though in this case the rule is altered in that state by statute), yet the better opinion is that, if the executor can show that damage has accrued to the personal estate of the deceased by the breach of an express or implied promise, he may well sustain an action at common law, to recover such damage, though the action is in some sort founded on a tort; Wms. Exec. 676; citing, in extenso, 2 Brod. & B. 102; 4 J. B. Moore, 532. And see 3 Wooddeson, Lect. 78, 79; Marsh. 14. So, by waiving the tort in a trespass, and going for the value of the property, the action of assumpsit lies as well for as against executors; 1 Bay, 58. In the case of an action on a contract commenced against joint defendants one of whom dies pending the suit, the rule varies. In some of the states the personal representatives of the deceased defendant may be added as parties and the judgment taken against them jointly with the survivors; 27 Miss. 455; 9 Tex. 519. In others the English rule obtains which requires judgment to be taken against the survivors only; and this is conceived to be the better rule, because the judgment against the original defendants is de bonis propriis, while that against the executors is de bonis testatoris; 119 Mass. 361. TORTS.-The ancient maxim which we are discussing applies more peculiarly to cases of tort. It was a principle of the common law that, if an injury was done either to the person or property of another for which damages only could be recovered in satisfaction,— where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty, the action died with the person to whom or by whom the wrong was done. See Wms. Exec. 668, 669; 3 Bla. Com. 302; 1 Saund. 216, 217, n. (1); Cowp. 371-377; 3 Wooddeson, Lect. 73; Viner, Abr. Executors, 123; Comyn, Dig. Administrator, B, 13. But if the goods, etc., of the testator taken away continue in specie in the hands of the wrong-doer, it has long been decided that replevin and detinue will lie for the executor to recover back the specific goods, etc.; W. Jones, 173, 174; 1 Saund. 217, note (1); 1 Hempst. C. C. 711; 10 Ark. 504; or, in case they are sold, an action for money had and received will lie for the executor to recover the value; 1 Saund. 217, n. (1). And actions ex delicto, where one has obtained the property of another and converted it, survive to the representatives of the injured party, as replevin, trespass de bonis asport. But where the wrong-doer acquired no gain, though the other party has suffered loss, the death of either party destroys the right of action; 3 Mass. 351; 6 How. 11; 1 Bay, 58; 4 Mass. 480; 13 id. 272, 454; 1 Root, 216. Successive innovations upon this rule of the common law have been made by various statutes with regard to actions which survive to executors and administrators. The stat. 4 Ed. III. c. 7, gave a remedy to executors for a trespass done to the personal estate of their testators, which was extended to executors of executors by the stat. 25 Ed. III. c. 5. But these statutes did not include wrongs done to the person or freehold of the testator or intestate; Wms. Exec. 670. By an equitable construction of these statutes, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it has become less beneficial to the executor or administrator, as the deceased himself might have had, whatever the form of action may be; 1 Saund. 217, n. (1); 1 Carr. & K. 271; Ow. 99; 7 East, 134, 136; 11 Viner, Abr. 125; Latch, 167; Poph. 190; W. Jones, 173, 174; 2 Maule & S. 416; 5 Coke, 27 a; 4 Mod. 403; 12 id. 71; Ld. Raym. 973; 1 Ventr. 31; 1 Rolle, Abr. 912; Cro. Car. 297; 2 Brod. & B. 103; 1 Stra. 212; 2 Brev. 27. And the laws of the different states, either by express enactment or by having adopted the English statutes, give a remedy to executors in cases of injuries done to the personal property of their testator in his lifetime. Trover for a conversion in the lifetime of the testator may be brought by his executor; T. U. P. Charlt. 261; 4 Ark. 173; 11 Ala. N. s. 859. But an executor cannot sue for expenses incurred by his testator in defending against a groundless suit; 1 Day, 285; nor in Alabama (under the Act of 1826) for any injury done in the lifetime of deceased; 15 Ala. 109; nor in Vermont can he bring trespass on the case, except to recover damages for an injury to some specific property; 20 Vt. 244. And he cannot bring case against a sheriff for a false return in testator's action; Ibid. But he may have case against the sheriff for not keeping property attached, and delivering it to the officer holding the execution in his testator's suit; 20 Vt. 244, n.; and case against the sheriff for the default of his deputy in not paying over to testator money collected in execution; 22 Vt. 108. In Maine, an executor may revive an action against the sheriff for misfeasance of his deputy, but not an action against the deputy for his misfeasance; 30 Me. 194. So, where the action is merely penal, it does not survive; Cam. & N. 72; as to recover penalties for taking illegal fees by an officer from the intestate in his lifetime; 7 S. & R. 183. But in such case the administrator may recover back the excess paid above the legal charge; Ibid. The stat. 3 & 4 W. IV. c. 42, § 2, gave a remedy to executors, etc., for injuries done in the lifetime of the testator or intestate to his real property, which case was not embraced in the stat. Ed. III. This statute has introduced a material alteration in the maxim actio personalis moritur cum persona as well in favor of executors and administrators of the party injured as against the personal representatives of the wrong-doer, but respects only injuries to personal and real property; ACTIO PERSONALIS Chitty, Pl. Parties to Actions in form ex delicto. Similar statutory provisions have been made in most of the states. Thus, trespass quare clausum fregit survives in North Carolina, 4 Dev. & B. 68; 3 Dev. No. C. 153; in Maryland, 1 Md. 102; in Tennessee, 3 Sneed, 128; and in Massachusetts, 21 Pick. 250; even if action was begun after the death of the injured party; 22 Pick. 495; in New Jersey, 38 N. J. L. 296. Proceedings to recover damages for injuries to land by overflowing survive in North Carolina, 7 Ired. 20; and Virginia, 11 Gratt. 1. Aliter in South Carolina, 10 Rich. 92; and Maryland, 1 Harr. & M'H. 224. Ejectment in the U. S. circuit court does not abate by death of plaintiff'; 22 Vt. 659. But in Illinois the statute law allows an action to executors only for an injury to the personalty, or personal wrongs, leaving injuries to realty as at common law; 18 Ill. 403. Injuries to the person. In cases of injuries to the person, whether by assault, battery, false imprisonment, slander, negligence, or otherwise, if either the party who received or he who committed the injury die, the maxim applies rigidly, and no action at common law can be supported either by or against the executors or other personal representatives; 3 Bla. Com. 302; 2 Maule & S. 408. Case for the seduction of a man's daughter; 9 Ga. 69; case for libel; 5 Cush. 544; and for malicious prosecution; 5 Cush. 543; are instances of this. But in one respect this rule has been materially modified in England by the stat. 9 & 10 Vict. c. 93, known as Lord Campbell's Act, and in this country by enactments of similar purport in many of the states. These provide for the case where a wrongful act, neglect, or default has caused the death of the injured person, and the act is of such a nature that the injured person, had he lived, would have had an action against the wrong-doer. In such cases the wrong-doer is rendered liable, in general, not to the executors or administrators of the deceased, but to his near relations, husband, wife, parent, or child. In the construction given to these acts, the courts have held that the measure of damages is in general the pecuniary value of the life of the person killed to the person bringing suit, and that vindictive or exemplary damages by reason of gross negligence on the part of the wrong-doer are not allowable; Sedg. Damages. Pennsylvania, New Jersey, New York, Massachusetts, Connecticut, and some other states, have statutes founded on Lord Campbell's Act. In Massachusetts, under the statute, an action may be brought against a city or town for damages to the person of deceased occasioned by a defect in a highway; 7 Gray, 544. But where the death, caused by a railway collision, was instantaneous, no action can be maintained under the statute of that state; for the statute supposes the party deceased to have been once entitled to an action for the injury, and either to have com |