TRESPASS. See Attachment; Injunction. Vi et armis-Eviction of Intruder by Owner of Land -An owner of land may enter on it and expel with reasonable necessary force a wrongful occupant without being liable in trespass quare clausum, or for assault and battery, or for injury to the occupant's goods, even if the force used would subject the owner to an indictment at common law for breach of the peace, or under the statute for forcible entry: Souter v. Codman, 14 R. I. TROVER. Infant-Hiring of Vehicle-Driving beyond Stipulated Limit.-A minor who hires a vehicle to drive to a place certain, and after getting the vehicle under this contract, drives elsewhere or beyond the place, is liable in trover for a conversion; the conversion taking place not under the contract, but by abandoning it and thus terminating the bailment: Freeman v. Boland, 14 R. I. UNITED STATES. See Intoxicating Liquors. VENDOR AND VENDEE. Vendor's Lien-Waiver by taking Trust Deed.-The taking of a trust deed by the vendor of land is a waiver of his implied lien for the purchase-money, and such deed of trust then becomes the sole measure of the vendor's right in the land for the security of the payment of the purchase-money by the vendee: Ryhiner v. Frank, 105 Ill. LIST OF THE PRINCIPAL NEW LAW BOOKS. BENJAMIN.-Treatise on the Law of Sale of Personal Property. By JUDAH P. BENJAMIN. 4th Am. ed. By CHARLES L. CORBIN. 2 vols. 8vo., pp. 1314. Jersey City: Frederick D. Linn & Co. COHEN.-Admiralty Jurisdiction, Law and Practice, with an Appendix containing Rules, Statutes and Forms. By M. M. COHEN. 8vo., pp. 505. Boston: Soule & Bugbee. COPP.-American Mining Code embracing the United States, State and Territorial Mining Laws, the Land Office Regulations, and a Digest of Federal and State Court and Land Department Decisions, with Forms, Dr. Raymond's Glossary and a List of Patented Claims. By HENRY N. COPP. 8vo. pp. 226. Washington: Published by the Editor. ERLE.-The Jury Laws and their Amendment. pp. 152. London: Stevens & Sons. By T. W. ERLE. 8vo. EWELL-Essentials of the Law. Vol. II., comprising the Essential Part of Stephen on Pleading, Smith on Contracts, and Adams's Equity. For the use of Students at Law. By MARSHALL D. EWELL. 12mo., pp. 329. Boston: Soule & Bugbee. RHONE.-Practice and Process in the Orphans' Court of Pennsylvania. By D. L. RHONE. In two volumes. Vol. 1, 8vo., pp. 792. Philadelphia: Rees Welsh & Co. SCHOULER.-Treatise on the Law of Executors and Administrators. By JAMES SCHOULER. 8vo., pp. 679. Boston: Soule & Bugbee. THE AMERICAN LAW REGISTER. JULY 1883. SURVIVAL OF ACTIONS. Statutory changes in the United States.-Various statutes have been passed in this country whose object is to reverse the commonlaw rule, and to allow the right of action to survive, and be prosecuted by or against an executor or administrator. It has not been the purpose however to include all classes of actions in this alteration of the old law; for in some instances certain kinds of actions have been expressly excepted therefrom. In addition to this the courts have so construed others of the enabling statutes as not to include very many kinds of actions which might appear at first blush to be within the provisions of the statutes. Thus in states where these statutes are in force it has been laid down that the following classes of cases are not within their terms: viz.: actions for libel: Walters v. Nettleton, 5 Cush. 544; Cummings v. Bird, 115 Mass. 346; for malicious prosecution: Nettleton v. Dinehart, 5 Cush. 543; Conly v. Conly, 121 Mass. 550; for fraudulent representations whereby a party was induced to part with. his real estate: Leggate v. Moulton, 115 Mass. 552; for fraudulently recommending a person as in good credit whereby one is induced to sell him goods on credit and lose their price: Read v. Hatch, 19 Pick. 47; Zabriskie v. Smith, 13 N. Y. 322; for fraud and deceit in selling damaged corn which the plaintiff fed to his horses whereby they died: Cutting v. Tower, 14 Gray 183; for making false answers in an examination under a trustee process: Stillman v. Hollenbeck, 4 Allen 391; for breach of promise of marriage: Smith v. Sherman, 4 Cush. 408; Wade v. Kalbfleisch, VOL. XXXI.—54 (425) 58 N. Y. 282; an action by a guest for injuries received through the negligence of the landlord: Stanley v. Vogel, 9 Mo. (App.) 100. A proceeding against a stockholder of a corporation under the Massachusetts statute for a debt of the corporation does not survive the death of the stockholder, and the executor cannot be sade a party to such a proceeding: Dane v. Dane Manufacturing Co., 14 Gray 488. 66 Construction of "Trespass" in the Statutes.-The New Jersey statute on the subject saves from abatement by death actions of "trespass to the person or property real or personal." The word trespass" as used in this statute is not restricted to torts remediable by the action of trespass, but is extended by judicial construction to mean "tort," or wrong, as in the English statute-and therefore the effect of this statute is to give a right of action against the representatives of a deceased wrongdoer for any injurious act of a suable nature, without regard to the form in which the remedy is sought. An action to recover damages caused by water being flowed back upon the plaintiff's land from the mill dam of the defendant: Ten Eyck v. Runk, 2 Vroom 428; an action against an attorney at law for negligence and deceit in the discharge of his duty Tichenor v. Hayes, 12 Vroom 193; an action for injury or neglect by a physician, Id., survive under this statute. But not an action for a breach of promise of marriage, for that is founded on contract and not in tort. A similar provision is found in a New York statute, and a similar liberal construction is given to it by the courts of that state. An action for carelessly and negligently setting fire to and burning up grass and fences and hay stacked upon a farm is a "trespass" within the New York statute: Fried v. New York, &c., Railroad Co., 25 How. Pr. 287. An action of deceit by a woman by which she is led into a void marriage is an action of "trespass on the case" within the Maine statute: Withee v. Brooks, 65 Me. 18; but an action of breach of promise of marriage is not: Horey v. Page, 55 Me. 142. And under a similar statute in Rhode Island it was held that an action on the case for unlawfully erecting a large stable so near a hotel as to become a nuisance thereto would survive: Aldrich v. Howard, 8 R. I. 125. An action against a town for a personal injury caused by a defect in its highway is an action trespass on the case" within the Maine statute: Hooper v. of " Gorham, 45 Me. 212; and so is an action for a libel: Nutting v. Goodridge, 46 Me. 82. The Massachusetts Statute.-The Massachusetts statute (1842, c. 89, sect. 1) declares that "the action of trespass on the case for damage to the person shall hereafter survive, so that in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator in the same manner as if he were living." The Revision of 1882 recites the actions which survive as follows: "In addition to the actions which survive by the common law, the following shall also survive: actions of replevin; of tort for assault; battery; imprisonment or other damage to the person; for goods taken and carried away or converted by defendant to his own use; or for damage done to real or personal estate; and actions against sheriff's for malfeasance or nonfeasance of themselves or their deputies." This statute is specially mentioned as one where the causes of action which are to survive the death of the party are expressly enacted by the legislature. Where death is instantaneous action does not survive.-Such statute, it is held, supposes the party deceased to have been once entitled to bring an action for the injury, and either to have commenced the action and subsequently died, or being entitled to bring it to have died before exercising that right. Therefore where the casualty relied on as the cause of action and the death of the party injured are simultaneous, the right of action does not survive: Kearney v. Boston, &c., Railroad Co., 9 Cush. 108; Mann v. Same, Id. 108; Louisville, &c., Canal Co. v. Murphy, 9 Bush 522. In Kearney v. Boston, &c., Railroad Co., 9 Cush. 108, the plaintiff's intestate was riding in a wagon across a highway, when the wagon was struck by the cars and he was instantly killed. It was held that the action could not be maintained. "The cause of action," said SHAW, C. J., "must accrue during the lifetime of the party injured. Here there was no time during the life of the intestate at which a cause of action could accrue, because the life closed with the accident from which a cause of action would otherwise have accrued." The same result was reached where a girl five years old fell from a bridge into a river below and was drowned: Louisville, &c., Canal Co. v. Murphy, 9 Bush 522. But actual life or death is the test: the accruing of the right of action does not depend upon intelligence, consciousness or men can tal capacity of any kind on the part of the sufferer, or on the length of time he lives. In one case it appeared that a woman run over by a train and killed did not speak after the accident, though a witness saw her move her hands and feet slightly and breathe only once. The court finding that this was only a momentary, spasmodic struggle, and that the death was instantaneous, refused a recovery: Mann v. Boston, &c., Railroad Co., 9 Cush. 108. In another, a woman killed in a similar manner, lived from ten to twenty hours after the accident, during which time she breathed, swallowed and uttered sounds, and manifested signs of life. Here the action was held to survive: Hollenbeck v. Berkshire Railroad Co., 9 Cush. 479. In another, a man struck by a locomotive lived for fifteen minutes, though insensible all the time. Here also the action survived: Bancroft v. Boston, &c., Railroad Co., 11 Allen 34. "Time," said the court, not be the test by which the right of the personal representative to sue can be tried; nor can the absence or presence of consciousness or sensibility be the standard. We are brought back therefore to the only rule which can be practically applied, and that is, if the party injured lives after an accident the right to sue accrues and survives." In Kentucky, a druggist's clerk made a mistake in putting up a prescription, whereby the plaintiff's intestate, who took it according to directions, "died the same day, after enduring great suffering and agony." The action against the druggist survived: Hansford v. Payne, 11 Bush 380. But in Tennessee, on the other hand, it is held that the statute of that state makes no distinction between the cases where the injured party lives a time and where the death is instantaneous. The cause of action accrues at the date of the injury, and is the same whether brought by him during life or by his personal representative after death: Fowlkes v. Nashville, &c., Railroad Co., 9 Heisk. 829; Collins v. East Tennessee, &c., Railroad Co., Id. 841. What actions survive as "Damages to the Person."-The words damages to the person" in the Massachusetts statute are construed to include every action the substantial cause of which is a bodily injury, whether the connection between the cause and effect is so close as to support an action of trespass or so indirect as to require an action on the case at common law. Therefore they include an action against C. for selling a medicine to B., to be administered to A., from which A. dies: Norton v. Sewall, 106 |