Survival of Causes of Action

Publication Date01 Mar 1939
AuthorE. Wyndham White
DOIhttp://doi.org/10.1111/j.1468-2230.1938.tb00414.x
278
MODERN
LAW
REVIEW
March,
1939
SURVIVAL
OF
CAUSES
OF
ACTION
bwm
HE object of these notes
is
to consider the effect of the
wide general principle relating to survival of causes of
action where one of the parties is dead laid down in
s.
I
of the Law Reform (Miscellaneous Provisions) Act,
1934,
on cer-
tain specific causes of action. The object
of
this statute was to
free English law from the trammels of the archaic and inconvenient
principle that
actio
personalis
mmitzcr
cam
persona
which, apart
from most actions based on contract and subject to certain
statutory exceptions, caused the abatement of
all
personal
actions on the death before judgment of either plaintiff or defen-
dant. To effect this purpose the Act provided that on the death of
a
person on or after
25
July,
1934,
all
causes of action (other than
for defamation, seduction, inducing one spouse to leave or remain
apart from the other, and adultery) subsisting against or vested
in him, survive against or for the benefit of his estate.
It
will
be
seen that the Act
is
in the widest terms and
prima
facie
would
seem to operate to save causes of action which abate, not
as
a
result of the operation of the
maxim
actio
personalis
moritzcr
czcm
~ersma,
but for some other unconnected reason.
It
is
submitted,
however, that a narrower construction of the Act must be taken
in accordance with the rules laid down in
Heydon’s
Case.’
The
Act was passed to remedy
a
particular mischief and defect in the
Common Law and ought not to
be
given
a
wider construction
than
is
necessary for that limited purp~se.~
1.
Breach
of
promise
of
IyIarriage
T
Under the law in force prior to 25th July,
1934,
the action for
breach of promise of marriage gave rise to some difficulty. The
difficulty lay in the anomalous and hybrid character of the action.
The action
is
based on the hypothesis of
a
broken contract, yet
is
attended with some of the special consequences of
a
personal
wrong; damages may be given of
a
vindictive and uncertain
kind, not merely to repay the plaintiff for temporal loss but to
solace the injured feelings of the plaintiff and to punish the
defendant in an exemplary manner.* These peculiar characteris-
tics
became of prime importance in considering whether an action
was maintainable against the estate of the deceased promisor or by
*
3
Co.
Rep.
8
(a).
1
Cf.
In
R#
C.,
[I9371 53
T.L.R.
995,
where Luxmoore,
J.,
gave
a
limited
construction
to
the words “prohibited degrees
of
consanguinity” in
8.
2
(I),
of
the
Adoption
Act.
1926,
in
the light
of
the policy
of
the
Act.
8
Cf.
Bowen,
L.
J.,
in
Finlay
v.
Chirney,
20
Q.B.D.
at
p.
504.

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