The facts as set forth in the petition for mandamus were as follows:

a — That the husband of the relator brought suit in his life time against the village of Carson City to recover damages for the destruction by fire of his saw-mill and other property, originating, as claimed, from sparks escaping from the smoke stack of the water works engine house of the defendant on account of its failure to equip the smoke stack-with a suitable hood or spark arrester.

6 — That after the joining of issue the plaintiff died, and the ease was regularly, revived in the name of relator as executrix.

c — That thereupon the defendant moved the court for an order dismissing the ease for the reason that the cause of action did not survive to the relator as executrix, but to the heirs at law of the testator, which motion was granted.