Upon the question whether the action sur vives where there is not only personal in jury but damage to property also—where the latter is the chief element of the dam ages sought, the action survives; 2 M. & S. 409; Lattimore v. Simmons, 13 S. & R. (Pa.) 183; Hovey v. Page, 55 Me. 142; but when the damages to the property are incidental merely to the personal injury there is less certainty. That the action survives is the inclination of English cases ; L. R. C. P. 189; 30 L. T. Rep. N. S. 765 ; S. C. 32 id. 36; so also in Lattimore v. Simmons, 13 S. & R. (Pa.) 183 ; Hovey v. Page, 55 Me. 142 ; at least to the extent of damage to property; Hegerich v. Keddie, 99 N. Y. 269, 1 N. E. 787, 52 Am. Rep. 25; Vittum v. Gilman, 48 N. H. 416 ; Cravath v. Plympton, 13 Mass. 454. To the contrary are Smith v. Sherman, 4 Cush. (Mass.) 408; Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250, which, however, was for breach of promise of marriage, and therefore, sui generic; and on this ground it is distinguished in Cregin v. R. Co., 75 N. Y. 192, 31 Am. Rep. 459, where an action by a husband against a carrier for personal in juries to his wife was held to survive as for a wrong to property rights or interests. Nor will an action of breach of promise of mar riage survive against the executor of the promisor where no special damage to erty is alleged; Chase v. Fitz, 132 Mass. 359; Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146 ; Larocque v. Conheim, 42 Misc. 613, 87 N. Y. Supp. 625 ; and this rule is not changed by statutes providing that ac tions for personal injuries shall not abate ; Wade v. Kalbfieisch, 58 N. Y. 282, 17 Am. Rep. 250 ; Hayden v. Vreeland, 37 N. J. L. 372, 18 Am. Rep. 723 ; Smith v. Sherman, 4 Cush. (Mass.) 408 ; Hullett v. Baker, 101 Tenn. 689, 49 S. W. 757. This action does not survive the death of either party; French v. Merrill, 27 App. Div. 612, 50 N. Y. Supp. 776. See Johnson v. Levy, 118 La. 447, 43 South. 46, 9 L. R. A. (N. S.) 1020, 118 Am. St. Rep. 378, 10 Ann. Cas. 722.
Nor does a right of action against a sur geon for malpractice survive his death ; Boor v. Lowrey, 103 Ind. 468, 3 N. E. 151, 53 Am. Rep. 519 ; Vittum v. Gilman, 48 N. H. 416 ; Jenkins v. French, 58 N. H. 532; Wolf v. Wall, 40 Ohio St. 111; Best v. Vedder, 58 How. Pr. (N. Y.) 187.
But a right of action for work and labor survives against one who induced plaintiff to marry and live with him on the false representation that he was a widower ; Hig gins v. Breen, 9 Mo. 497 ; as also the right to recover as for goods sold and delivered for goods transferred in consideration of a promise of marriage ; Frazer v. Boss, 66 Ind. 1. 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 Cr. M. & R. 588; 5 Tyrwh. 985, and the cases there cited. The right to redeem survives ; Clark v. Seagraves, 186 Mass. 430, 71 N. E. 813; and so does the statutory right of ac tion for money paid on purchase or sale of securities with intention of no actual deliv ery; Anderson v. Stock Exchange, 191 Mass.
117, 77 N. E. 706; and the statutory action by a married woman for damages from sale of liquor to her husband survives after the death of the saloon keeper ; Garrigan v. Huntimer, 20 S. D. 182, 105 N. W. 278.
Divorce proceedings being a personal ac tion, death of either of the parties before decree abates the proceedings ; Ewald v. Corbett, 32 Cal. 493; Pearson v. Darrington, 32 Ala. 257; Danforth v. Danforth, 111 111. 236; Swan v. Harrison, 2 Cold. (Tenn.) 534; and the court will not require the executor to become a party in order to answer the wife's demand for additional allowance for counsel fees; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717. But defendant's death after trial but before judgment, will not abate the suit; Danforth v. Danforth, 111 Ill. 236.
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 af fecting 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 admin istrator 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 M. & S. 415 ; 8 M. & W. 854 ; Jenkins v. French, 58 N. H. 532. And it has been held that for the breach of an implied promise of an attorney to investigate the ti tle 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 modi fied 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, as debt against the sheriff for an escape, does not survive at common law ; Neal v. Haygood, 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 dam age has accrued to the personal estate of the deceased by the breach of an express or im plied 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; Wins. Exec. 676 ; citing, in extenso, 2 Brod. & B. 102; 4 J. B. Moore 532. And see 3 Woodd. Lect. 78. 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; Middleton's Ex'rs v. Robinson, 1 Bay (S. C.) 58, 1 Am. Dec. 596.