mour. Where both laws concur in allowing civil proceedings No defence for damages to be taken in respect of the act, it is no defence that criminal proceedings to an action in this country to say that in the foreign country taken abroad criminal proceedings must be taken first, this being simply according to a rule of procedure, which has nothing to do with the simple : p. 3.] question, is the act a tort in both countries or not? With regard to acts done on the high seas, that is to say, on board ships outside the limit of jurisdiction at the time of the commission of the act, it would seem that the law applicable under the first part of the above rule would be the law of the country to which the ship belonged. It is certain that by English law, English ships are supposed to carry the English law with them until they come within the jurisdiction of another country; and the same rule presumably applies to foreign ships. Secondly, as to the tortfeasor, or defendant in the action. If he is in this country, whether a subject or an alien, an action may be brought against him for a tort committed in the country, and also, subject to the first rule, for one committed abroad. [See Mostyn v. Fabrigas on this subject.] But if he is not in this country, then no action can be brought against him, whether subject or alien, unless he is domiciled or ordinarily resident within the jurisdiction (1). foreign law. Torts com mitted on the high seas. Rule where feasor is abroad, and the tort tort com mitted, abroad. abroad, and either in Eng. Thirdly, as to the person injured, or plaintiff in the action. His right to sue does not depend in any way upon his Practice where nationality. The only disadvantage under which a plaintiff resident abroad labours, is that he must (if application is made by the defendant within a proper time) find security for costs, whether he be subject or alien, unless he possesses unencumbered real property within the jurisdiction upon which execution can issue for costs of an unsuccessful suit. (1) By the Judicature Act, Order XI., rule 1 (c), Service of a writ of summons out of the jurisdiction may be allowed by the Court whenever any relief is sought against any person domiciled or usually resident within the jurisdiction. land or abroad. C The tort itself to be distin the evidence of the tort. The rules as to this security are slightly more stringent against an alien than against an English subject. On the question of torts committed out of the jurisdiction, guished from it is important not to confuse the law determining whether an act is or is not tortious with the law which governs people's conduct under certain circumstances, the violation of which would not of itself be a tort, but would be evidence to shew that the tort in question had been committed. For example, in England the rule of the road is to pass by the left; in France it is to pass by the right. Where a collision had occurred between two vehicles in Paris, failure to observe the French rule of the road would be received as evidence of negligence, if the action for damages were brought in England. The fact that the driver had passed by the left would not bring the case within the second part of the first of the above rules so as to constitute a good defence. The act complained of would not be the passing by the left, but the negligence in running down. The English Court would admit proof of the foreign law as one of the facts upon which the existence of the tort, or the right to damages may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established. Selwyn, L.J., in The Halley,L.R. 2 P. C. at p. 203. CHAPTER III. Of Death and the Discharge of Torts generally. § 1. ACTIO PERSONALIS MORITUR CUM PERSONÂ. THIS maxim of the Roman law has been made use of at all stages of our legal history to convey a general notion of the effect of death on the consequences of a tort. The terms used require, however, some little explanation. Firstly, actio personalis is not synonymous with personal action, for under this head would be included actions on contracts: in using the maxim, however, the judges were always careful to explain that it was only to be understood of a tort, and so of an action essentially personal in its nature. Secondly, the word persona suggests the inquiry which person, the injured party or the party injuring? The answer being either. 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, the action died with the person to whom, or by whom, the wrong was done. But this rule was greatly altered at an early stage of our legal history by the statute 4 Edw. III. c. 7. Item, Whereas in times past executors have not had actions for a trespass done to their testators as of the goods and chattels of the same testators carried away in 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, and recover their damages in like manner as they whose executors they be should have had if they were in life. And by 25 Edw. III., st. 5, c. 5, it was enacted that Terms of the maxim ex plained. Principles of early common law. Williams on Executors. Gradually modified by statute. The statutes explained. 7 East 128. Williams on Injuries to realty. Lord Campbell s Act. "executors of executors shall have the benefit and charge of the first testator." These statutes being remedial in their nature have been construed very liberally, as was explained by Lord Ellenborough in Wilson v. Kimbley. "It was," he said, " a very ancient statute passed at a period when no great precision of language prevailed; and the body of the Act does not speak of actions of trespass, though the instance put is proper for such an action; but it speaks of actions for a trespass done to the testator's goods; and it enacts that executors in such cases shall have an action against the trespassers, apparently using the word trespass as meaning a wrong done generally, and the trespassers as wrongdoers: it does not specify the nature of the action. The words, therefore, were capable of letting in a construction which met the mischief intended to be redressed." The effect of the series of old cases interpreting this statute may be put shortly as follows: "An executor or administrator shall now have the same actions for any injury done to the personal estate of the deceased in his lifetime, whereby it has become less beneficial to the executor or administrator, as the deceased might have had whatever the form of action may be." To enable the executor to sue, the injury must have been such as would damage or diminish the testator's estate, for the Act expressly refers to the "goods and chattels" of the testator, and therefore injuries done to the person or to the freehold of the testator do not come within the mischief of the statute. The Act 3 & 4 Will. IV. c. 42, enables executors to sue for injuries to the real estate of the deceased, and be sued for injuries to property, real or personal, by their testator, committed six months before his death. Finally, by Lord Campbell's Act (9 & 10 Vict. c. 93) the executor or administrator of a person killed by "wrongful act, neglect, or default such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof," is enabled to bring the action for the benefit of the wife, husband, parent, or child of the deceased. Thus qualified, the maxim actio personalis moritur cum persona is still the law of England. (i.) Where the deceased is the party injured. The alleged distinction between tort and contract examined. There appears therefore to be an essential difference between actions on contract and on tort, and it has been explained in different ways. In Williams on Executors it is said that "the reason appears to be that these (debts due and contracts broken) are choses in action, and are parcel of the personal estate in respect of which the executor or administrator represents the person of the deceased, and is in law his assignee." In Wills v. Murray it was said that it was due to the pre- 4 Ex: 843. sumption of law that the parties to a contract bind not only themselves, but their personal representatives. Contracts Contracts for involving the exercise of personal skill or taste nevertheless personal skill. owing to their peculiar nature, would not be included in this presumption; they do not survive to and are not enforceable against the representatives. In truth, however, no distinction of principle exists. We shall find on examining the cases that the only difference between torts and contracts is that there is a presumption of damage to the estate in the latter case which does not exist in the former; and that in both cases this presumption may be rebutted-in torts to prevent the maxim applying, in breaches of contract to introduce its application. 532. In Knights v. Quarles the intestate had retained the defen- 4 Mo: Ex: dant as his attorney to investigate and procure a good title of an estate about to be conveyed to him as purchaser; the attorney had accepted a bad and defective title, whereby the intestate could not dispose of the estate, and had been put to expense in endeavouring to obtain a good title, whereby also the property had remained uncultivated and lessened in |
