2. A natural water-course called the Eelbeck flows through the plaintiff's said farm and then through the defendant's land.

3. In the alternative the plaintiff says that in and prior to the year 1850, one T. D. was owner in fee both of the plaintiff's farm and of the defendant's lands, and the water in and upon the lands now of the plaintiff had flowed for a long period of time before the year 1850 and was then flowing from the farm now of the plaintiff, by means of an open ditch or water-course through the land now of the defendant, and had been carried away from the plaintiff's said lands by means of the said ditch

or water-course.

4. In the year 1850, the said T. D. sold and conveyed the said farm to a predecessor in title of the plaintiff, and he subsequently sold and conveyed the said lands to the defendant.

5. The plaintiff says he is entitled to have the water on his said farm flow from his farm by means of the said ditch or water-course, and so to be carried away from the said farm under the following titles:

(1.) By reason of an implied grant, created on the sale and conveyance of the field, as mentioned in paragraph 4. (2.) By reason of the enjoyment thereof as of right and without interruption for 20 years before this action by the occupiers of the plaintiff's farm.

(3.) By reason of a lost grant.

6. On the 10th of June, 1880, the defendant obstructed the flow of the said water down and through the said water-course, and he has since filled it up with earth and stone, by reason of which the water flowing from the plaintiff's farm was backwatered upon his lands and has done him damage.

The plaintiff claims :

(1.) £500 damages;

(2.) An injunction commanding the defendant forthwith to remove the obstruction to the flow of the said water down and along the said water-course.

Defence.

1. The said alleged water-course is not a natural stream.

2. The defendant does not admit that while T. D. was owner

of the plaintiff's said farm and the defendant's said land the water from the plaintiff's farm flowed therefrom into the defendant's land as alleged, or at all.

3. The defendant says that the said T. D. sold and conveyed the said lands to the defendant prior to his sale and conveyance of the said farm to the predecessor in title of the plaintiff.

4. The defendant denies that the plaintiff is entitled to the right claimed by him by any one of the titles mentioned in the 5th paragraph, or at all.

7. Claim of a Right to send Water through a Neighbour's Drain (a).

1. On the 13th of January, 1875, one William Smith was the owner of 12, Clinton Street, Newcastle-on-Tyne, and also of the house adjoining, No. 13, Clinton Street.

2. At that time, and for some considerable time before, the tenants of No. 12, Clinton Street, had been accustomed to send the refuse water from the said premises down and along a drain which emptied itself into the drain belonging to No. 13, Clinton Street, and so into the main sewer.

3. On the 13th of January, 1875, the said William Smith sold and conveyed the said house, No. 12, Clinton Street, to the plaintiff, and a week later he sold and conveyed No. 13, Clinton Street, to the defendant.

(a) On a grant of part of a tenement or of one of two adjoining tene- Continuous ments belonging to the same grantor there passes to the grantee all con- and aptinuous and apparent easements over the lands retained by the grantor, parent that is to say, all such easements as are necessary to the reasonable enjoy- easements. ment of the property granted, and have in fact been enjoyed during the unity of ownership. In the above statement of claim and the preceding one, the plaintiff bases his title upon this principle of law; the extent of and limitations to the doctrine of which were exhaustively discussed in the recent case of Wheeldon v. Burrows, 12 Ch. D. 31; 48 L. J. Ch. 853 (C.A). In that case in which the general proposition that a grantor impliedly grants all continuous and apparent easements was affirmed, the distinction between an implied grant and an implied reservation was taken, and it was laid down in accordance with previous decisions (1) that if the grantor wishes to reserve to himself any easement over the house or lands granted he must do so expressly, except in the case of a way of necessity, and (2) that if a grantor fails expressly to reserve any easement and subsequently aliens the land he retained, a purchaser taking under him has no title to any continuous or apparent easement over the lands first granted. The case of Pyer v. Carter, 11 H. & N. 916; 26 L. J. Exch. 258, to the contrary is now discredited. See generally on this subject, White v. Bass, 7 H. & N. 722; 31 L. J. Ch. 283; Suffield v. Brown, 4 De Gex & S. 185; 33 L. J. Ch. 249; Swansborough v. Coventry, 9 Bing. 305; 2 L. J. C. P. 11; Watson v. Troughton, 48 Ľ. J. 508.

4. On the 20th of July, 1875, the defendant took up and removed the said drain belonging to No. 13, Clinton Street, and so obstructed and prevented the flow of the plaintiff's refuse water as it had been accustomed to flow, and caused the plaintiff damage.

8. Claim by Owner of a House to an Easement of Support from the Soil of adjoining Owner.

1. The plaintiff is the owner and occupier of a dwellinghouse at A., and the defendant is the owner of a close of land immediately adjoining.

2. From time immemorial, or, in the alternative, for more than twenty years next before the commencement of this action, the plaintiff's said house has been supported by the soil of the defendant's said close.

3. On the 3rd of October, 1880, the defendant excavated and removed a considerable portion of the said soil, whereby the house fell, and the plaintiff has suffered damage.

Executors and Administrators (a),

Action by Executors on Promissory Notes, and for Money lent by the Testator.

1. The plaintiffs are the executors of A. B., deceased.

2. The plaintiffs' claim is against the defendant as maker of

(a) The following is a brief outline of the law affecting executors and administrators, so far as it comes within the scope of this work : Contracts.]-Contracts with a testator having reference to his real cutors, &c., estate pass with the reversion where the testator's interest was only of a

When exe

a promissory note for £350, dated November 27, 1883, payable four months after date, to A. B., or his order.

3. On November 30, 1883, A. B. lent £70 to the defendant. The plaintiff claims £360, and £70, and interest, until payment or judgment.

chattel nature to his executors or administrators; and those of a similar may sue kind having reference to the freehold, pass to the heir-at-law or devisee. on conCovenants running with the land always go to the heir or devisee. There tracts of is this important distinction between the two cases of freeholds and lease- testator, holds, that in the case of the testator's chattels real, if he has not himself &c. sued for breaches of covenant affecting them, the personal representatives cannot sue unless on account of some distinct injury to the testator's personal estate. But see Raymond v. Fitch, 2 C. M. & R. 558. The effect of Raymond v. Fitch would seem to be that unless the covenant be one on which the heir or devisee alone can sue for a breach of the covenant in the lifetime of the testator, the executor can sue unless it is a personal contract to which the axiom actio personalis moritur cum persona applies. (Ricketts v. Weaver, 12 M. & W. 718.) Williams on Executors, p. 814. In other cases the heir or devisee can sue only in respect of breaches after the testator's death. (Kingdon v. Nottle, 1 M. & §. 355; Jones v. King, 4 M. & S. 188.)

contracts, unless the estate has been depreciated.

Personal contract with testators may always be sued on by the personal representatives in respect of damages accruing to the personal estate by reason of the breach, whether such breach has occurred before or after the testator's death. With regard to contracts which affect the testator personally only, such as a contract to marry, the personal repre- Executors, sentatives, cannot sue unless there is some special damage to the estate. &c., can(Chamberlain v. Williamson, 2 M. & S. 408.) Where a passenger sus- not sue on tained personal injury through the breach by the defendants of their merely contract to carry him with due care, of which injury he ultimately died, personal it was held that his executors might sue for the injury to his estate in respect of medical expenses thereby incurred, and loss by reason of his being prevented before his death from attending to his business. (Bradshaw v. Lancashire & Yorkshire Rail. Co., L. R. 10 C. P. 189; 31 L. T. N. S. 847; 44 L. J. C. P. 148.) And it was held that the executor of a person may sue in respect of a similar contract made by such person with regard to his wife, whereby he sustained like damage. (Potter v. Metropolitan District Rail Co., 32 L. T. N. S. 36.) If, however, the contract were of such a nature as to be rescinded by the death, no subsequent breach would be possible, but the right of action for any breach which accrued before death is not thereby divested. (Stubbs v. Holywell Rail. Co., L. R. 2 Ex. 311.) But in similar cases where no contract intervenes the action cannot be maintained. (Pulling v. G. E. Rail. Co., 9 Q. B. Div. 110.) As to when a contract is rescinded by death, see Chitty on Contracts, 10th ed., p. 95; Addison on Contracts, 7th ed. p. 291.

If the cause of action arose in the testator's lifetime, the personal re- In what

capacity

the executor, &c.

must sue.

The evidence of their title.

Actions for personal

injuries generally die with

the person.

Action by Executor under Lord Campbell's Act for Negligence causing the Death of the Deceased.

1. The plaintiff, as executor of C. D., deceased, brings this action for the benefit of Eva, the wife, and William and Mar

presentative must sue in his character as such (2 Wms. Exors., 7th edit. 870); but if the cause of action arose altogether after the testator's death, the personal representative may sue personally or as executor. (lb. 876, 1870.) Thus, where an administrator after the death of an intestate enters into contracts in the course of carrying on the business of the intestate for the benefit of the estate, he may sue in his representative capacity, or semble in his individual capacity. (Mosely v. Rendell, L. R. 6 Q. B. 338; Abbot v. Parfitt, Ib. 346, explaining Bolingbroke v. Kerr, L. R. 1 Ex. 222, where it did not appear that the business was carried on for the benefit of the estate.)

If, however, the assets to be recovered would belong to the personal estate, he can only sue as executor, &c. (Aspinal v. Wake, 10 Bing. 51.) Administrators cannot sue until they have obtained letters of administration, as they are their only authority for instituting the suit. An executor, however, may sue before the grant of probate; but he must obtain probate in order to sustain his title on the trial, should it be disputed.

Actions in the case of torts.]-The rule actio personalis moritur cum persona, applies to torts to the person, viz., assault, battery, false imprisonment, libel and slander. With regard to actions for negligence causing death, Lord Campbell's Act (9 & 10 Vict. c. 93), ss. 1 and 2 provides that in such cases (if the act of negligence would have been actionable if death had not resulted), the person responsible for such act shall be liable to an action for the benefit of the wife, husband, parent, and child, to be brought by the executor or administrator of the deceased Exception. person, and the jury are to apportion the amount of their verdict among Lord Camp- the relatives above named. By s. 3, actions are to be commenced within twelve months from the death; and by s. 4, particulars of the persons on whose behalf the action is brought and of the nature of the claim are to be delivered to the defendant or his solicitor with the declaration (now statement of claim).

bell's Act.

Decisions on Lord

Act.

By 27 & 28 Vict. c. 95, if the executor or administrator does not bring the action under Lord Campbell's Act within six months after the death, the persons for whose benefit he might have brought the action may themselves bring it.

It has been held under this Act, that where a servant was killed in the employment of his master, the latter is not liable for negligence for which the servant could not, before the passing of the Act, have sued him. (Senior v. Ward, 28 L. J. Q. B. 139.)

A bastard child cannot sue under this Act. (Dickinson v. N. E. Rail. Co., 2 H. & C. 735.)

In estimating damages under the Act, the reasonable expectation of pecuniary advantage which the surviving relatives had from the deCampbell's ceased, and the probable loss in money sustained by his death, are to be taken into account; but funeral and testamentary expenses are not to be included. (Dalton v. South Eastern Rail. Co., 4 C. B. N. S. 296; 27 L. J. C. P. 227; Pym v. Great Northern Rail. Co., 4 B. & S. 496; 31 L. J. Q. B. 249.) There must be some actual pecuniary damage to the parties on behalf of whom the action is brought proved, and a verdict for even nominal damages is not allowable where no actual damage