ACTIO PERSONALIS MORITUR CUM PERSONA is an English legal maxim, once of general application, expressing the rule of law that a personal action dies with the person. For, in a civil court, the death of a human being cannot be complained of as an injury. The operation of the rule is now limited to actions of tort, or wrongs independent of contract, such as an action for damages for libel. There are, however, exceptional cases in which, even in cases of tort, the rule does not apply, or its operation has been modified. In the case of trespass on land, the owner of which dies, his personal representatives can proceed with an action, provided the injury was done within six months before, and the action brought within one yeas after the owner's death. So also in the case of the trespasser's death, there the right of action survives on the conditions that the injury was done within six months before the death and the action is brought within sir months after the personal representatives of the deceased have taken upon themselves the administration of his estate. And exception is made in the case of an injury which has been done to the goods and chattels of a person who then dies ; as, for example, where a person sued on the infringement of his trade-mark dies pending action.
But the most general and important exception, gratefully appreciated by the families of those who have been so unfortunate as to have been killed in railway disasters, is created by Lord Campbell's Act (now known, together with its amending Acts, as the Fatal Accidents Acts, 1846 to 1908), which enacts that whensoever 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 person injured to maintain an action and recover damages in respect thereof, there and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as shall in law amount to a felony. An action under the Act must be brought by the
executor or administrator of the person deceased within twelve calendar months after the death of such deceased ; and shall be for the benefit of the wife, husband, parent (which term includes father, mother, grandfather, grand mother, stepfather and stepmother), and child (which term includes son, daughter, grandson, granddaughter, stepson and stepdaughter) of the deceased. Only one action can be brought in respect of the same subject matter, and the plaintiff must deliver to the defendant full particulars of the person or persons for the benefit of whom the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.
All damages awarded, after deducting any costs not recovered from the defendant, are to be divided amongst the above-mentioned relatives in such shares as the jury shall direct. If, however, there shall be no executor or administrator of the deceased, or if the action is not brought by such executor or administrator within the first six of the twelve months allowed, then it may be brought in the name or names of all or any of the persons for whose benefit the executor or administrator would have sued. But if before his death the deceased has brought an action and recovered damages for his injuries, or has made an arrangement with those liable to him therefor, and received satisfaction, no action can be maintained under the Fatal Accidents Acts, as these statutes only substitute the right of the personal representatives to sue in the stead of the deceased.
An important amendment of the law with respect to the assessment of damages under the Acts has been introduced by the Act of 1908. In such assessment any sum paid or payable on the death of the deceased under a contract of insurance or assurance cannot now be taken into account.