Said suit was brought against the receiver without the permission of this honorable court. (b) Because the said receiver, in the suit in the state court, by demurrer, excepted to the jurisdiction of the state court to proceed against them: and, if the foregoing should be overruled, the defendant further excepts that, even if said judgment of the state court against the receivers was in law conclusive, or had the effect given to it in the master's report, which is denied, yet claimants and intervenors herein, on the trial of the interventions before the master, after introducing the judgment of the state court, offered Mrs. Sullivan as a witness before the master, and voluntarily took testimony in regard to the claim, which amounted to a waiver of all rights under the judgment, and opened the whole case so that it could be passed upon and decided by the master and by this honorable court in the same manner as though there had been no judgment rendered. (2) Said defendants further except to the said report on the ground that, even if the said receiver were guilty of negligence in the premises, which is expressly denied, yet, even in such case, that intervenors cannot recover, because said Mrs. Sullivan was also negligent, and by her fault and negligence contributed to the accident complained of.” In the case of Barton v. Barbour, 104 U S. 126, 4 Am. & Eng. R. Cas., 1, the supreme court of the United States held"That when the court of one state has a railroad or other to sue re- Property in its possession for administration as Leave of court trust assets, and has appointed a receiver to aid it in the performance of its duty by carrying on the it can be sold with due regard to the rights of all persons inbusiness to which the property is adapted until such time as terested therein, the court of another state has not jurisdiction, without leave of the court by which the receiver was appointed, to entertain a suit against him for a cause of action arising in the state in which he was appointed, and in which the property in his possession is situated, based on his negligence, or that of his servants, in the performance of their duty in respect of such property." That this was the law prior to the judiciary act of 1887, is not disputed. In this case, however, jurisdiction is claimed for the district court of Harrison county, state of Texas, over the receiver appointed in this court in the main suit, which was instituted in this court on the 15th day of December, 1885, by virtue of the third section of the judiciary act, approved March 3, 1887. correctly enrolled by act approved August 13, 1888, (25 St. at Large, 436,) which provides: "That every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in car rying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. The repealing clause of the said judiciary act contains this proviso: "That this act shall not affect the jurisdiction over, or disposition of, any suit removed from the court of any state, or suit commenced in any court of the United States, before the passage hereof, except as otherwise expressly provided in this act. The question then presented is whether the permission. given by said third section to institute suit against receivers in the United States courts without previous leave obtained of the court appointing the receiver, affects the jurisdiction of this court over the main suit. The case of Barton v. Barbour, supra, is authority for holding that the necessity of obtaining leave to prosecute a suit against a receiver appointed by another court is jurisdictional. This court has exclusive original jurisdiction over its receiver as to actions based on negligence in the operation of the trust property when the act of 1887 was passed. If the third section of that act went into immediate operation quoad this cause, then it seems clear that said act affects the jurisdiction over a suit then pending; and this the repealing clause prohibits. It also seems clear that whatever jurisdiction the district court of Harrison county acquired by said act was so much jurisdiction taken away from this court. It would seem to follow that, as to the receiver of the Texas & Pacific Railway, the act of 1887 did not take effect, and that therefore the district court of Harrison county, Tex., was without jurisdiction to entertain a suit against such receiver. If said court was without jurisdiction, then it follows that on the pending intervention this court was not concluded by reason of the verdict and judgment rendered upon the question of negligence, nor upon the quantum of damages. The third section of the act of 1887, quoted above, in terms provides that the suit so instituted in another court shall be subject to the general equity jurisdiction of the court in which the receiver is appointed, so far as the same shall be necessary to the ends of justice. The better opinion of the effect of said section is that it merely dispenses with leave of the court appointing the receiver, as a prerequisite to instituting a suit against him in another court, and that a suit brought thereunder has the same status, and a judgment rendered therein has the same effect, as if permission to sue had been regularly granted by the court appointing the receiver. However this may be, it is clear that when a judgment is so obtained, and is brought to the court of original jurisdiction to be ranked as a lien upon the trust funds, such judgment is subject to the general equity jurisdiction, and the duty of determining the rightfulness of the judgment, including whether the amount is just, is still imposed upon this court, as it would be if it had ordered an issue tried at law; for this court must still, in the language of the statute, exercise a "general equity jurisdiction, so far as the same shall be necessary to the ends of justice. In the present case, the proceedings before the master show that intervenor offered evidence, in addition to that contained in the record from the state court, tending to show the fact of injury, and the extent of damages; there- Submission of by waiving any right intervenor may have had to Waiver. claim that his judgment was conclusive upon the evidence question of negligence and damages. For these reasons I am of the opinion that in the present intervention the court may inquire as to whether or not the intervenor has a lien, and, if so, the rank and amount thereof, and that in such inquiry the court is not concluded in any way by the verdict and judgment produced from the district court of Harrison county, Tex. 2. The evidence submitted in this case on the intervention is practically the same evidence that was submitted on the hearing of the cause in the state court. It is only damages- supplemented by the testimony of the injured party Excessive she had not recovered from the injuries complained verdict. that at the time of the hearing before the master of. This evidence makes a case of negligence upon the part of the receiver's employes, through which the wife of the intervenor received the injuries complained of. It does not establish that by her negligence she contributed to such injuries. It is therefore a case in which the intervenor is is more difficult to determine. It appears that Mrs. Sullivan, the wife of intervenor, was employed in keeping a boardingcar for the receiver, in connection with the construction train, in which, according to her testimony, she did a large part of the work; that by the accident her leg was broken, her arm dislocated, her back, shoulder, and side injured. At the end of two years she had not recovered from such injuries, and was able to do little work. The injury occurred in May; and, according to her testimony, she was unable to walk until September. Previous to the injury she was a stout, healthy hardly Woman. At the time of the trial in Harrison county, she was gave a verdict of $10,000 damages. This amount is claimed able to dress herself. The jury that heard her case to be, and I think is, excessive. The supreme court of Texas, 1 in this very case, said: "The verdict is large, and the court below, in the exercise of a sound discretion, might properly have set it aside; but the damages are not so great as to manifest that the jury were actuated by passion or prejudice, and therefore we cannot disturb the verdict because it may seem to us too large." Brown v. Sullivan, 10 S. W. Rep. 288. This court in determining the extent of intervenor's lien, as has been shown above, is not concluded by the verdict and judgment in the Texas court; and under all the circumstances, as developed by the evidence, it appears that the sum of $5,000 will be ample pecuniary remuneration to the intervenor for all such damages and injuries as can be compensated in money. The following order will be entered in the case: This cause came on to be further heard upon the intervention of Owen Sullivan, and the master's report thereon, and exceptions thereto, and was argued, whereupon it is ordered, adjudged, and decreed, that the exceptions to the master's report be, and the same are hereby, sustained. It is further ordered that the intervenor do have and recover from the receiver, in this cause, the sum of $5,000, with 8 per cent. interest per annum thereon from the 4th day of May, 1887, and the costs of this intervention, and that the Texas & Pacific Railroad be condemned to pay the said judgment under the order of this court rendered on October 26, 1888, under which the said companv retook possession of its railway property. LOUISVILLE, NEW ALBANY & CHICAGO R. Co. ข. GOODYKOONTZ. (119 Ind. 111.) Wrongful Death-Right of Guardian to Maintain Action.-Under Ind. Rev. St. 1881, § 266, which provides that the father, or, in certain contingencies, the mother, "may maintain an action for the injury or death of the child, and the guardian for the injury or death of his ward; but when the action is brought by the guardian for injury to his ward, the damages shall inure to the benefit of his ward," the right of action is primarily in the father, and contingently in the mother, for damages for loss of services from the date of the injury until majority; and where the ward is survived by his mother, the guardian cannot maintain an action for damages for his death when he has not been required to make expenditures out of his ward's property, for care and medical attendance, or for funeral expenses. APPEAL from Superior Court, Marion County. Action to recover damages for negligently causing the death of the plaintiff's ward. G. W. Easley, T. L. Sullivan, A. Q. Jones, G. W. Friedley, and G. R. Eldridge, for the appellant. L. Ritter and E. F. Ritter, for the appellee. Case stated. MITCHELL, J.-Goodykoontz, as guardian, complains of the appellant railroad company, and charges that the death of his ward, George Lowery, a minor under the age of twenty-one years, was instantaneously caused by the negligence and wrongful conduct of the company. The only averment upon the subject of damages is, that the ward left surviving him "a mother and sister and next of kin competent to share in the distribution of the personal estate of said deceased, to whom damages inure," and that by reason of the injury and death the ward's estate had been damaged in the sum of $10,000. There was a special verdict, and a judgment for $2,500. Indiana statute. It is conceded that the action was brought under section 266, Revised Statutes of 1881, which reads as follows: "A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward." It was a settled rule of the common law that no one could maintain a civil action for damages on account of the death of a human being. All claims for injuries to the son action for of statute. person were extinguished by the death of the per- Abatement of injured. Actio personalis moritur cum persona. If a child was wrongfully injured, the father, or death Effect person lawfully entitled to the child's services, might recover for the loss of services during the period of disability up to the time of death, if death resulted. Incidental damages for nursing, surgical and medical attendance, including appropriate funeral expenses in case of death, were also recoverable by a parent. The statute above set out has added to the common-law remedy of a parent the right to recover all the probable pecuniary loss resulting from the death of a child. The right of action is primarily in the father, but contingently in the mother; and whether there be guardian or not, the father, or under certain contingencies the mother, may maintain an action under the above section. In estimating the damages, the value of the child's services from the date of the injury until he would have attained his majority, including the cost of nursing, medical and surgical |