Under the common law an action to re cover a penalty or forfeiture dies with the person ; U. S. v. De Goer, 38 Fed. 80. The action if not abate upon death of the re lator, f It is brought by the state upon an official bond ; Davenport v. McKee, 98 N. C. 500, 4 S. E. 545.
The stat. 3 & 4 W. IV. c. 42, § 2, gave a remedy to executors, etc., for injuries done in the lifetime of the testator or intestate to his real property, which case was not em braced in the stat. Ed. III. This statute introduced a material alteration in the max im actio personalis moritur cum persona as well in favor of executors and administra tors of the party injured as against the per sonal representatives of the wrongdoer, but respects only injuries to personal and real property ; Chit. Pl. Parties to Actions in form em delicto. Similar statutory provi sions have been made in most of the states. Thus, trespass quare clausunt fregit sur vives ; Dobbs v. Gullidge, 20 N. C. 197; Mc Pherson v. Seguine, 14 N. C. 153 ; Kennerly v. Wilson, 1 Md. 102; Winters v. McGhee, 3 Sneed 128; Musick v. Ry. Co., 114 Mo. 309, 21 S. W. 491; Wilbur v. Gilmore, 21 Pick. (Mass.) 250 ; even if action was begun after the death of the injured party; Goodridge v. Rogers, 22 Pick. (Mass.) 495 ; Herbert v. Hen drickson, 38 N. J. L. 296 ; proceedings to re cover damages for injuries to land by over flowing; Howcott's Ex'rs v. Warren, 29 N. C. 20; Upper Appomattox Co. v. Harding, 11 Gratt. (Va.) 1; contra, McLaughlin v. Dor sey, 1 Harr. & McH. (Md.) 224. Ejectment in the United States circuit court does not abate by death of plaintiff; Hatfield v. Bushnell, 22 Vt. 659, Fed. Cas. No. 6,211. In Illinois the statute law allows an action to executors only for an injury to the personalty, or per sonal wrongs, leaving injuries to realty as at common law ; Reed v. R. Co., 18 Ill. 403.
Injuries to the person. In cases of inju ries to the person, whether by assault, bat tery, false imprisonment, slander, negligence, or otherwise, if either the party who receiv ed or he who committed the injury die, the maxim applies rigidly, and no action at com mon law can be supported either by or against the executors or other personal rep resentatives; 3 Bla. Corn. 302 ; 2 M. & S. 408; Mobile Life Ins. Co. v. Brame, 95 U. S. 756, 24 L. Ed. 580; Connecticut Mut. Life Ins. Co. v. R. Co., 25 Conn. 265, 65 Am. Dec. 571; Indianapolis, P. & C. R. Co. v. Keely's Adm'r, 23 Ind. 133 ; Hyatt v. Adams, 16 Mich. 180; Winnegar's Adm'r v. R. Co., 85 Ky. 547, 4 S. W. 237 ; Roche v. Carroll, 6 D. C. 79 ; Thayer v. Dudley, 3 Mass. 296 ; and the action is not impliedly saved by a stat ute giving a right of action after death to the personal representatives ; Martin's Adm'r v. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. A case for the seduction of a man's daughter ; Brawner v. Sterdevant, 9 Ga. 69; for libel; Walters v. Nettleton, 5 Cush. (Mass.) 544; for malicious prosecution ; Nettleton v. Dinehart, 5 Cush. (Mass.) 543; are instances of the general rule stated. The death of one defendant, where partners are sued for libel, does not abate the action, even aside from the statute ; Brown v. Kel
logg, 182 Mass. 297, 65 N. E. 378. But in one respect this rule has been materially modified in England by Lord Campbell's Act, and in this country by like acts in many states. These provide for the case where a wrongful act, neglect, or default has caused the death of the injured person, and the act is of such a nature that the injured person, had he lived, would have had an action against the wrong-doer. In such cases the wrong-doer is rendered liable, in general, not to the executors or administrators of the de ceased, but to his near relations, husband, wife, parent or child. In the construction given to these acts, the courts have held that the measure of damages is in general the pecuniary value of the life of the person killed to the person bringing suit, and that vindictive or exemplary damages by reason of gross negligence on the part of the wrong doer are not allowable ; Sedg. Damages.
Most states have statutes founded on Lord Campbell's Act. In some states, by statute, an action may be brought against a city or town for damages to the person of deceased occasioned by an assault by anoTher's dogs ; Wilkins v. Wainwright, 173 Mass. 212, 53 N. E. 397; or by reason of a defect in a highway; Demond v. City of Boston, 7 Gray (Mass.) 544 ; Roberts v. City of Detroit, 102 Mich. 64, 60 N. W. 450, 27 L. R. A. 572 ; but it is otherwise in South Carolina; All v. Barn well County, 29 S. C. 161, 7 S. E. 58. In Ohio it is considered to be an action "for a nuisance" and abates at the death of the party injured ; Village of Cardington v. Fredericks, 46 Ohio 442, 21 N. E. 766. But where the death, caused by a railway col lision, was instantaneous, no action can be maintained under the statute of Massachu setts; for the statute supposes the party deceased to have been once entitled to 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 the right ; Kearney v, R. Co., 9 Cush. (Mass.) 108. Where a per son during his lifetime commenced an ac tion for damages for injuries, and the action was pending at his death, an action to re cover damages for his death by his repre sentative was barred ; but such representa tives had the right to continue the action commenced by the decedent in his lifetime ; Edwards v. Gimbel, 202 Pa. 30, 51 Atl. 357 But it has been held that an administrator cannot continue an action brought by the decedent in his lifetime, as the only action maintainable is by the administrator under the statute for the benefit of the heirs ; Mar tin v. R. Co., 58 Kan. 475, 49 Pac. 605. But the accruing of the right of action does not depend upon intelligence, consciousness, or mental capacity of any kind on the part of the person injured; Hollenbeck v. R. Co., 9 Cush. (Mass.) 478. By the removal of a case to the Federal Court, the right to revive an action for personal injuries, upon the death of the plaintiff, is not lost ; In re Connaway, 178 U. S. 421, 20 Sup. Ct. 951, 44 L. Ed. Baltimore & Ohio R. Co. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.