same is to be converted, and refer to the law which authorizes the taking of the property, whereupon a writ for the assessment of the damages shall be issued. See sections 706, 707. That article further provides, that any person having an interest in any land, which has been, or may be, taken for any such public work, may have the benefit of this writ upon his own application, upon which like proceedings shall be had as in case of application made by the corporation, company, or person prosecuting the work. See section 710.

It is evident from these provisions that the application for a writ, required as above, must be in writing, and constitutes the complaint in the action, to which objection may be taken, as in ordinary adversary proceedings.

As has been seen, the complaint averred that in June, 1867, the defendant entered upon the lands, which it particularly described, and constructed its railroad over said lands, thereby appropriating and converting a portion of such lands to its own use, and that the plaintiff inherited these lands from his father, Ira Church, on the 1st day of March, 1874, when he found the defendant in the possession and use of the lands so appropriated and converted by it to its own use.

It was thus shown, as an inevitable inference from the facts alleged, that, at the time a right of action accrued against the defendant for whatever damages resulted from the construction of its railroad over the lands referred to, the plaintiff was not the owner of such lands and had no interest therein. Upon what, therefore, could the plaintiff base his claim to recover these damages? Not by assignment from the person to whom they accrued, for no assignment was alleged. Not by inheritance, for it was not averred that Ira Church was the owner of the lands when they were taken and converted by the defendant, or that he had otherwise become entitled to recover such damages at the time the descent was cast upon the plaintiff. Terms of years and other estates less than freehold pass to the executor or administrator, and are not subjects of descent.

Personal property, whether in possession or in action, does not descend to the heirs, but goes to the personal representatives of the deceased. 2 Bouvier Institutes, 368; 2 Hilliard on Real Property, 189; Toller on Executors, 139.

The general rule is that damages to land, remaining uncollected, do not pass to the vendee or descend to the heir. I Redfield on Railways, 5th ed., p. 392, and authorities above cited.

Under some circumstances, the heir may, in this State, sue upon and collect a chose in action which belonged to his ancestor, but in such a case it must be shown that there is no executor, administrator, creditor, widow or other person entitled to control or share in such chose in action. Schneider v. Piessner, 54 Ind. 524;

Bearss v. Montgomery, 46 Ind. 544; Walpole's Adm'r v. Bishop, 31 Ind. 156.

The damages alleged to have been inflicted in this case were such as enured to the benefit of the person who owned the lands when the railroad was constructed, and the simple averment that the plaintiff had afterward inherited these lands did not show him to be entitled to recover for such damages. The taking of the lands by inheritance did not necessarily carry with it any claim to damages to such lands, which had previously accrued, as has already been shown.

There was, also, no reference in the complaint to the law which authorized the defendant to take and appropriate the lands taken and used by it as alleged. Such an averment was held by this court to be necessary in a case similar to the one at bar. The Indianapolis, etc., R. R. Co. v. Newsom, 54 Ind. 121.

The complaint being insufficient, the court below did not err in arresting the judgment.

The judgment is affirmed, with costs.

(Advance Case, Supreme Court, District of Columbia. January Term, 1881.) The inquisition provided for by the act of Congress of May 21, 1872, granting the B. & P. R. R. Co. the right to lay its tracks along Sixth street in the city of Washington, was for a different purpose from that specified in the act of February 5, 1867, authorizing the extension of a lateral branch of that road into the District of Columbia. That of the act of 1867 applied to cases where the company desired to locate its road over any land within the district, and in the event of a failure to obtain the assent of the owner for any of the reasons set forth in the act, the company was to make application to a justice of the peace for the county of Washington, who thereupon was to issue his warrant to the marshal requiring him to summon a jury to meet on the land and proceed to value the damages which the owner would sustain by its use or occupation by the company. But the damages to be ascertained under the authority of the act of 1872, viz.: "the appreciation or depreciation of the value of the property situated along said street," was a matter not provided for by the act of 1867, and although the act of 1872 declared that the amount which the company should pay should be ascertained in the manner and form as provided by the act of 1867, this simply referred to the inquisition as a convenient method of ascertaining the damage and did not mean that the inauguration of the proceeding was to rest only with the pleasure of the company.

statute of limitations does not bar the plaintiff's remedy where the liability of the defendant is created not merely by the act of the parties,

but by the positive requisitions of a statute, nor will it be held to embrace any proceeding at law not therein enumerated. Hence as the Maryland act of 1715, chap. 23, sec. 2, which is the statute of limitations in this district, in none of its provisions makes allusion to a proceeding by inquisition, such a proceeding cannot be regarded as an action within the meaning of the statute.

In an action at law to recover damages to the plaintiff's property by reason of the laying of a railroad track, the only recovery which can be had would be in respect of temporary or transitory damages accrued up to the time of the inception of the suit, whereas, a statutory inquisition, which is not a suit in the sense of the law, is instituted to ascertain for all time the amount of permanent damages sustained. But a proper subject for consideration by the jury on the inquisition would be the recovery which might be had in a pending action at law, by way of reducing the amount of their award.

At such an inquisition if the marshal submits the names of the jurors to the respective attorneys that they may strike from the list until the number is reduced to twelve, and the attorney for the defendant refuses to do so, the marshal may perform that duty in his stead, as otherwise it would be possible in any case for a party defendant to prevent the rendition of a verdict by refusing to strike from the panel.

There is no force in an objection that in four separate inquisitions, the same twenty jurors were presented as a panel in each case.

Nor will the court consider the objections whether a sufficient number of witnesses were sworn and examined as to the amount of the alleged damages.

A party is not entitled to recover damages for the depreciation of his property in consequence of the laying of a railroad track, if the property was not owned by him at the time the track was laid. The owner of the land at the time of the injury can alone take advantage of a claim for damages, and if he does not claim his subsequent vendee cannot.

THE CASE is stated in the opinion.

J. G. Payne for Plaintiffs.

Enoch Totten for Defendants.

HAGNER, J.-On the 27th of February, 1879, on application of the several plaintiffs, a justice of the peace issued warrants, directed to the marshal of the District of Columbia, requiring him to summon in each case a jury of twenty citizens to assemble on the premises at a specified time, and assess the damages sustained by the plaintiffs, respectively, in consequence of the laying of the defendant's railroad track along Sixth street. The marshal summoned the same twenty persons to appear in each case as a jury and assess damages. The jury appeared near the premises at the time named, and the list of names was submitted by the marshal to the respective attorneys that they might strike from the list. The attorney for the railroad company objected to the proceeding as entirely illegal and unauthorized, and refused in behalf of the company to strike any names from the list submitted. Thereupon, the counsel for the plaintiff in the respective cases, struck off four

names, and the marshal proceeded to strike a sufficient number of additional names to reduce the number to twelve. The same proceeding was adopted in each of the four cases in turn, and the jury rendered verdicts in each case in favor of the plaintiff, assessing the damages in different amounts.

On the 17th of March, 1879, the marshal made a return in each case to the court. The defendant thereupon filed exceptions in each case, and these exceptions have been certified to this court for determination in the first instance.

First. It is insisted upon the part of the railroad company that the magistrate was without jurisdiction or authority to issue a warrant in either case upon the application of the plaintiff, as the statute under which he professed to act provided only for the issuing of such warrant upon the application and request of the railroad company.

The second section of the act of Congress of the 5th of February, 1867, authorizing the extension, etc., of a lateral branch of the Baltimore and Potomac R. R. into and within the District of Columbia, provided that, before the railroad company should proceed to construct any railroad which they may lay out or locate over any land, etc., within the District, they shall first obtain the assent of the owner of such land, etc., or if such owner shall be absent from said District, or shall refuse to give such assent on such terms as said company shall approve, or because of infancy, coverture, etc., shall be legally incapable of giving such assent, then it shall be lawful for the said company to apply to a justice of the peace for the County of Washington who shall thereupon issue his warrant directed to the marshal requiring him to summon a jury which should meet on the land and "proceed to value the damages which the owner of such land will sustain by the use or occupation of the same required by the said company.'

The act of the 21st of May, 1872, entitled "An act to confirm the action of the board of aldermen and common council of the city of Washington, designating a depot site for the Baltimore and Potomac R. R. Co. and for other purposes," declared that "the Baltimore and Potomac R. R. Co. shall have the right to extend its track from Virginia avenue along Sixth street to the open grounds between Sixth street and B streets north, and the canal, described as follows:" . . . "The said company shall lay no more than two tracks along said Sixth street, and as near as practicable in the centre of said street; provided, that the said company shall pay the owners of private property along the line of Sixth street, north of Virginia avenue by which the said railroad passes, any damage which the said property may sustain by reason of the laying of its track along the said Sixth street, and the said damages, if any, shall be ascertained in manner and form as provided by the act of Congress approved February 5, 1867, entitled an act,

etc., it being understood that the question of damages herein referred to shall be confined to the question of appreciation and depreciation of the value of the property situated along said street."

The condemnation provided for in the act of 1867 applied to cases where the railroad desired to obtain permission to lay out or locate its road over any land within the District, and in the event of their failure to obtain the assent of the owner of such land for any of the reasons therein set forth, then the company was to make the application to a justice of the peace. But that proceeding was not to be resorted to where the owner had already given his consent.

By the act of 1872, the United States, the owner of Sixth street, expressly gave its consent to the location by the railroad company of its track along that street from Virginia avenue to B street. No inquisition, therefore, was necessary at the instance of the company, or any one else, to obtain the assent already given for the laying of the track. But the act of 1872 declared that the amount which the company should pay to the owners of private property for any damage which said property might sustain by reason of the laying of the track along Sixth street, should be ascertained in the manner and form as provided by the act of Congress of February 5, 1867.

The inquisition thus authorized was for a different purpose from that specified in the original law, but the form of an inquisition was to be adopted as a convenient mode of ascertaining the amount of damages for a matter not provided for in the original law, viz.: for "the appreciation or depreciation of the value of the property situated along said street."

It was certain that the party complaining in respect to these damages would be the owner of the property and not the railroad company, and the statute simply referred to the inquisition as a convenient method of ascertaining the damage; but nowhere, by fair construction, can it be said that the inauguration of the proceedings by inquisition was to rest only with the pleasure of the company. Such a construction would practically nullify all benefit that the owners of property could claim under the law.

But we conceive that the Supreme Court of the United States in Baltimore and Potomac R. R. Co. v. The Trustees of the Sixth Presbyterian Church, 1 Otto, 127, have recognized the right of an owner of private property to inaugurate proceedings by inquisition under the act of 1872. In that case compensation was claimed by the trustees of the Church against this company for the damage from the laying of the tracks, and the magistrate, upon the application of the trustees, issued the warrant under which judgment was given in favor of the church. After full argument, in which a number of objections were interposed