In some of the states the statutes vest the right of action in the personal representa tives, but the damages recovered accrue to the benefit of the widow and next of kin; City of Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553; Whiton v. R. Co., 21 Wis. 305; Needham v. R. Co., 38 Vt. 294. And, by act of May 30, 1908, provision is made for com pensation to government employes for in juries, or, in case of, death, to the widow and children ; Comp. Laws (1911) 468.
Damages may be recovered by the parents in an action for death of minor child; Balti more & 0. R. Co. v. State, 24 Md. 271; Ihl v. R. Co., 47 N. Y. 317, 7 Am. Rep. 450; Ewen v. R. Co., 38 Wis. 613; Pennsylvania R. Co. v. Bantom, 54 Pa. 495 ; but there must have been a prospect of some pecuniary benefit had the child lived ; 11 Q. B. D. 160 ; Rains v. R. Co., 71 Mo. 164, 36 Am. Rep. 459; 3 H. & N. 211. Where a father and daughter were injured by the same accident, and he died within an hour, held that the cause-of action in him for his daughter's death did not survive to the mother, no action having been brought by him ; King v. R. Co., 126 Ga. 794, 55 S. E. 965, 8 L. R. A. (N. S.) 544.
Actions against the executors or adminis trators of the wrong-doer. The common-law principle was that if an injury was done ei ther to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the per son by whom the wrong was committed; 1 Saund. 216 a, note (1); McLaughlin v. Dor sey, 1 H. & McH. (Md.) 224. And where the cause of action is founded upon any mal feasance or misfeasance, is a tort, or arises ex delicto, such as trespass for taking goods, etc., trover, false imprisonment, assault and battery, slander, deceit, diverting a water course, obstructing lights, and many other cases of the like kind, where the declaration imputes a tort done either to the person or the property of another, and the plea must be not guilty, the rule of the common law is etch() personalis moritur curt persona; and if the person by whom the injury was com mitted die, no action of that kind can be brought against his executor or administra tor. But now in England the stat. 3 & 4 W. IV. c. 42, § 2, authorizes an action of tres pass, or trespass on the case, for an injury committed by deceased in respect to prop erty real or personal of another. And sim ilar provisions are in force in most of the states of this country. Thus, in Alabama, by statute. trover may be maintained against an executor for a conversion by his testator; Nations v. Hawkins' Adm'rs, 11 Ala. 859.
So in New jersey, Terhune v. Bray's Ex'rs, 16 N. J. L. 54; Georgia, Woods v. Howell, 17 Ga. 495; and North Carolina; Weare v. Burge, 32 N. C. 169.
In Virginia, by .statute, detinue already commenced against the wrongdoer survives against his executor, if the chattel actually came into the executor's possession; other wise not ; Allen's Ex'r v. Harlan's Adm'r, 6 Leigh (Va.) 42, 29 Am. Dec. 205 ; Catlett's Ex'r v. Russell, 6 Leigh (Va.) 344. So in Kentucky, Gentry's Adm'r v. McKehen, 5 Dana (Ky.) 34. Replevin in Missouri does not abate on the death of defendant ; Kins bury's Ex'rs v. Lane's Ex'r, 21 Mo. 115 ; nor does an action on a replevin bond in Dela ware, Waples v. Adkins, 5 Harr. (Del.) 381. It has, indeed, been said that where the wrongdoer has secured no benefit to himself at the expense of the sufferer, the cause of action does not survive, but that where, by means of the offence, property is acquired which benefits the testator, then an action for the value of the property survives against the executor ; U. S. v. Daniel, 6 How. (U. S.) 11, 12 L. Ed. 323 ; Coburn v. Ansart, 3 Mass. 321; Troup v. Smith's Ex'r, 20 Johns. (N. Y.) 43; McEvers v. PitiKin, 1 Root (Conn.) 216 ; Cummins v. Cummins, 8 N. J. Eq. 173 ; Mid dleton's Ex'rs v. Robinson, 1 Bay (S. C.) 58, 1 Am. Dec. 596; and that where the wrong doer has acquired gain by his wrong, the in jured party may waive the tort and bring an action ew contractu against the representa tives to recover compensation ; Jones v. Hoar, 5 Pick. (Mass.) 285; Cummins v. Cummins, 8 N. J. Eq. 173.
But this rule, that the wrongdoer must have acquired a gain by his• act in order that the cause of action may survive against his representatives, is not universal. Thus, though formerly in New York an action would not lie for a fraud of deceased which did not benefit the assets, yet it was other wise for his fraudulent performance of a contract; Troup v. Smith's Ex'r, 20 Johns.
(N. Y.) 43 ; and now the statute of that state I gives an action against the executor for every injury done by the testator, whether by force or negligence, to the property of another ; El der v. Bogardus, Lalor's Supp. (N. Y.) 116; as for fraudulent representations by the de ceased in the sale of land ; Haight v. Hayt, 19 N. Y. 464 ; or wasting, destroying, taking, or carrying away personal property ; Snider v. Croy, 2 Johns. (N. Y.) 227. Cases in which the survival of actions is fully considered are: Right of action against a sheriff does survive ; Lynn's Adm'r v. Sisk, 9 B. Monr. 135; Paine v. Ulmer, 7 Mass. 317 ; Cravath v. Plympton, 13 Mass. 454 (but not one against a deputy sheriff ; id.); one for a false return of execution; Jewett v. Weaver, 10 Mo. 234 (but not one against a consta ble for unnecessary assault in an arrest ; Melvin v. Evans, 48 Mo. App. 421) ; case for injury to property ; Jones v. Vanzandt, 4 McLean, 599, Fed. Cas. No. '1,503 ; tres pass; Hamilton v. Jeffries, 15 Mo. 619 ; (both under statutes) ; suit against owner for criminal act of slave ; Phillips v. Towl er's Adm'rs, 23 Mo. 401; deceit in sale of chattels ; 1 Car. L. Rev. 529 ; the remedy by petition for damages by overflowing lands ; Raleigh & G. R. Co. v. Jones, 23 N. C. 24 ; against an attorney for neglect ; Miller v. Wilson, 24 Pa. 114 ; 3 Stark. 154 ; 1 D. & R. 30 ; damages by reason of false represen tations as to value of land ; Henderson v. Henshall, 54 Fed. 320, 4 C. C. A. 357. Cases in which the right of action was held not to survive the death of the wrongdoer or de fendant are: For torts unconnected with con tract ; Watson v. Loop, 12 Tex. 11; tres pass ; O'Conner v. Corbitt, 3 Cal. 370 ; ac tions for malicious prosecution ; Conly v. Conly, 121 Mass. 550; whether brought in the lifetime of the wrongdoer or not ; Jones v. Littlefield, 3 Yerg. (Tenn.) 133 ; McDer mott v. Doyle, 17 Mo. 362; trespass for mesne profits; Harker v. Whitaker, 5 Watts (Pa.) 474 ; Means v. Presbyterian Church, 3 Pa. 93 ; Burgess v. Gates, 20 -Vt. 326 ; In re Renwick's Estate, 2 Bradf. Sur. (N. Y.) 80 ; (but the representative may be sued on con tract ; id.); contra, Molton v. Munford's Adm'r, 10 N. C. 490 ; Burgess v. Gates, 20 Vt. 326 (by statute) ; case for false represen tation ; Henshaw v. Miller, 17 How. (U. S.) 212, 15 L. Ed. 222. Trespass for trim. con., where defendant dies pending the suit, does not survive against his personal representa tives ; Clarke v. McClelland, 9 Pa. 128. Where an action of trespass is brought by a widow for killing her husband, it abates with death of defendant ; Weiss v. Hunsicker, 14 Pa. Co. Ct. 398.
Where the intestate had falsely pretended that he was divorced from his wife, where by another was induced to marry him, the latter cannot maintain an action against his personal representatives ; Grim v. Carr's Adm'rs, 31 Pa. 533. for nuisance does not lie against executors of a wrongdoer ; Hawkins' Ex'rs v. Glass, 1 Bibb. (Ky.) 246 ; Knox v. Sterling, 73 Ill. 214 ; nor for fraud in the exchange of horses ; Coker v. Crozier, 5 Ala. 369; nor, under the statute of Vir ginia, for fraudulently recommending a per son as worthy of credit ; Henshaw v. Miller, 17 How. (U. S.) 212, 15 L. Ed. 222 ; nor for negligence of a constable, whereby be failed to make the money on an execution ; Logan v. Barclay, 3 Ala. 361; nor for misfeasance of constable ; Gent v. Gray, 29 Me. 462 ; nor against the personal representatives of a sheriff for an escape, or for taking insuffi cient bail bond ; Cunningham v. Jaques, 19 N. J. L. 42; nor against the administrators of the marshal for a false return of execution, or imperfect and insufficient entries thereon ; U. S. v. Daniel, 6 How. S.) 11, 12 L. Ed. 323 ; nor does debt for an' escape survive against the sheriff's executors ; Martin v.
Bradley, 1 Caines (N. Y.) 124; aliter in Georgia, by statute; Neal v. Haygood, 1 Ga. 514. An action against the sheriff to recover penalties for his failure to return process does not survive against his executors; Ma son v. Ballew, 35 N. C. 483; nor does an ac tion lie against the representatives of a de ceased postmaster for money feloniously tak en out of letters by his Clerk; Franklin v. Low, 1 Johns. (N. Y.) 396. See ABATEMENT.