16. The English common law has never adopted these previsions, or gone into the re finement of reasoning upon which they are based. It requires the survivorship of two er more to bcproved by facts, and not by any settled legal rule or prescribed presump tion. In some of the cases that have arisen involving this hare question of survivorship, the court have advised a compromise, denying that there was any legal principle upon which it could be decided. In others the de cision has been that they all died together, and that none could transmit rights to others. 1 W. Blackst. 640 ; Fearne,'Posth. Works, 38, 393 2 Phill. 261, 266 ; Croke Eliz.,5C3 ; 1 Metc. Mass. 308 ; 3 Hagg. Eccl. 748 ; 5 Bar new. & Ad. 91 ; 1 Younge & C. Ch. 121 ; I Curt. C. C. 405, 429.
17. As to contracts. These are, in general, not affected by the death of either party. The executors or administrators of the decedent are required to fulfil all his engagements, and may enforce all those in his favor. But to this rule there are the following exceptions, in which the contracts are terminated by the death of one of the parties:— The contract of marriage. See MARRIAGE.
The contract of partnership. See PART NERSHIP.
1S. Those contracts which are altogether personal: as, where the ee3eaEed had agreed to accompany the other party to the contract on a journey, or to serve another, Pothier, Obl. c. 7, art. 3, N 2, 3, or to instruct an appreittice. Bacon, Abr. Executor, P 1 Burn, Eccl. Law, 82; Hammond, Partn. 157; 1 Rawle, Penn. 61 ; also an instance of this species of contract in 2 Barnew. & Ad. 303. In all those cases where one is acting for another and by his authority, such as agencies and powers 'of attorney, where the agency or power is not coupled with an interest, the death of the party works an immediate revocation. Wher ever any express or implied authority is being exercised by another, the death of the party giving it is a revocation. 30 Vt. 11.
As to torts. In general, when the tort fea sor or the party injured dies, the cause of action dies with him ; but when the deceased might have waived the tort and maintained assumpsit against the defendant, his personal representative may do the same thing. See