lish statute, known as "Lord Campbell's Act," whereby injuries resulting in death are made actionable. At common law the maxim, "personal actions die with the person," applied to such cases. These statutes vary greatly in detail, but the general policy of most of them is the same. That policy is not simply to permit the right of action to survive for the benefit of the dead man's estate, but to give the benefit of the damages obtained to his family, free from the claims of creditors; or in other words, to create a new cause of action, rather than merely to allow the old one to survive. Some of these acts name the personal representative of the deceased as the proper party to sue in this behalf, but the proceeds to go to his family or those named by the statute; others provide that the suit shall be brought directly by the beneficiaries named in the statute; others, that the suit shall be in the name of the State. Some of the statutes specify that only a limited amount may be recovered by way of damages; others designate no limit. Some provide that the suit shall be brought within one year, others within two or more years, from the time of death. Some limit the damages to a certain amount, others to another, others not at all. Many of these acts prescribe other conditions and regulations also, but those mentioned suffice to illustrate the variances and discrepancies existing between them, and which have proved a fruitful source of conflicts of laws.

§ 200. Death by Wrongful Act Increasing Liberality of the Courts. In the cases on this subject two main questions were first presented. If a tortious death is actionable by the lex fori only, will that statute govern? If actionable by the lex delicti, will that statute control?

The first question was at once decided in the negative, and the correctness of the ruling cannot be questioned.1

It is with regard to the second question that the greatest conflict of opinion has occurred. The view first advanced was that although the lex delicti made the tortious death actionable, it would be of no avail upon an action brought in another State,

1 Crowley v. R. R. Co., 30 Barb. (N. Y.) 99; Beach v. R. R. Co., 30 Barb. 433; Whitford v. Panama R. R. Co., 23 N. Y. 468; O'Reilly v. R. R. Co., 16 R. I. 388, 17 Atl. 906. See Debevoise v. R. R. Co., 98 N. Y. 377.

even though the death was made actionable by the lex fori also, because such statutes were to be regarded as penal, or at least as having no exterritorial force.2

As more liberal ideas advanced, the next step taken by the courts was to recognize these statutes as remedial, not penal, and to permit actions to be brought in one State for a tortious death resulting in another State and actionable there, provided there was a statute substantially similar in the State of the forum. But if there were any very marked dissimilarities between the statutes of the two States, this was still taken to indicate that the enforcement of the lex delicti was contrary to the policy of the forum, and the right to sue there would be denied.*

The present tendency of the more recent decisions is to advance still further towards liberality and to throw open the courts to litigants whose cause of action has arisen in other States and under the laws thereof, even though not actionable at common law or not actionable if it had arisen in the forum, provided the enforcement of the lex delicti would not seriously contravene the established policy of the forum. The presumption is in favor of the right to sue, and the burden rests upon the party objecting to show that the enforcement of the "proper law" would be inconsistent with the domestic policy.5

2 Richardson v. R. R. Co., 98 Mass. 85; McCarthy v. R. R. Co., 18 Kan. 46; Woodard v. R. R. Co., 10 Ohio St. 121; Anderson v. R. R. Co., 37 Wis. 321; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57. This doctrine is indefensible, and has long since been discarded.

3 Leonard v. Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491; Wooden v. R. R. Co., 126 N. Y. 10, 15; St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 60; Cin. H. & D. R. R. Co. v McMullen, 117 Ind. 439, 20 N. E. 287; Burns v. R. R. Co., 113 Ind. 169, 15 N. E. 230; O'Reilly v. R. R. Co., 16 R. I. 388, 19 Atl. 245; Morris v. R. R. Co., 65 Ia. 727, 23 N. W. 143.

St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540; Belt v. R. R. Co, 4 Tex. Civ. App. 231, 22 S. W. 1062, 1063; Ash v. R. R. Co., 72 Md. 144, 19 Atl. 643; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 60; Vawter v. R. R. Co., 84 Mo. 679, 54 Am. Rep. 105; Taylor v. Pennsylvania Co., 78 Ky. 348, 39 Am. Rep. 244.

5 Stewart v. R. R. Co., 168 U. S. 445; Texas, etc. R. R. Co. v. Cox, 145 U. S. 593; Huntington v. Attrill, 146 U. S. 657, 670; Dennick v. R. R Co.,

But even under this modern doctrine the right of the plaintiff to sue and the liability of the defendant depend in all substantial matters upon the lex loci delicti, not upon general principles of law and justice as administered in the forum." Hence, both with respect to the party who is to sue for the tort, the time within which suit is to be brought, the measure of damages, and all other conditions named in the statute, affecting the substantive rights of the parties, the lex loci delicti is strictly followed, after it is once determined that its enforcement will not contravene the policy of the forum. § 201. Same-Proper Plaintiff. -The lex loci delicti is the proper law by which to ascertain the person who is to sue for a death caused by wrongful act. The right to sue accrues, if at all, by reason of the statute of the locus delicti, and in general no one can take advantage of the right conferred by that law save the person to whom that law gives it.

1

Thus where the lex delicti designates the personal representative as the proper complainant, while the lex fori names the widow, the latter, in her individual capacity at least, will not be permitted to sue in the forum, even though by the lex delicti the representative is to sue for her benefit. On the other hand, if the lex delicti prescribes that the representative is to sue for the benefit of others than the party designated by the lex fori as the complainant, this does not, under the modern view, prevent the suit from being brought as directed by the lex delicti.2

در

If the lex delicti prescribes the widow, heirs, etc., as the proper parties to sue, while the lex fori prescribes the personal representative of the deceased, the same principle controls, and 103 U. S. 11; Law v. R. R. Co., 91 Fed. 817, 819; Higgins v. R. R. Co., 155 Mass. 176, 29 N. E. 535, 536; Nelson v. R. R. Co., 88 Va. 971, 14 S. E. 839; Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771, 773.

In Stewart v. R. R. Co., 168 U. S. 445, there seems to be the hint of a tendency to rely upon general principles, rather than upon the strict lex loci delicti. See also Machado v. Fontes, 2 L. R. Q. B. D. 231, where a similar tendency is exhibited.

1 Usher v. R. R. Co., 126 Penn. St. 206, 17 Atl. 598; St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540.

2 See Stewart v. R. R. Co., 168 U. S. 445.

the party designated by the lex delicti is the proper plaintiff, without regard to the provisions of the lex fori.

In cases where the "proper law" names the personal representative as the plaintiff, a question arises as to whether this requires the representative to be appointed in the locus delicti, or whether his appointment in the forum will suffice. This question has once before been discussed, and it was shown that the weight of authority favors the doctrine that the latter is sufficient.1

But to the general principle that only the party designated by the lex loci delicti may sue, one exception has been made by the Supreme Court of the United States in Stewart v. R. R. Co. In that case the death took place in Maryland, and suit was brought in the District of Columbia by the administrator of the deceased. By the law of Maryland, suit was to be brought in such cases in the name of the State of Maryland, for the benefit of the wife, husband, parent, or child of the deceased. By the law of the District of Columbia, suit was to be instituted by the representative of the deceased for the benefit of the general distributees. The court upheld the action by the administrator on the ground that the plaintiff designated in the Maryland statute (that is, the State of Maryland) was merely a nominal plaintiff. So was the plaintiff named by the law of the District (the personal representative). The result would hardly have been the same if the party named as plaintiff by the law of the District had been himself the recipient of the damages. The beneficiaries, though not exactly the same under bo statutes, seem to have been regarded by the court as practically so."

8 Wooden v. R. R. Co., 126 N. Y. 10; Limekiller v. R. R. Co., 33 Kan. 83, 52 Am. Rep. 523; Lower v. Segal, 59 N. J. L. 66, 34 Atl. 945; Davidow v. R. R. Co., 85 Fed. 943, 944.

4 Ante, § 108. See Dennick v. R. R. Co., 103 U. S. 11.

5 168 U. S. 445. But see Wilson v. Tootle, 55 Fed. 211.

6 But for this decision of a most eminent tribunal construing the Maryland statute, it might have been thought that that act was intended to have no exterritorial force, since it prescribed that the action should be brought in the name of the State of Maryland, which could not well be applicable to actions brought in any other than a Maryland court.

§ 202. Same Other Conditions of Suit. Not only does the lex delicti determine who is the proper plaintiff in actions for death by wrongful act, but the same law controls also all the other substantive conditions attached to the right to sue.

Thus, in Hamilton v. R. R. Co.,' the death was caused in Missouri, and action therefor was brought by the widow in Kansas. By the law of Missouri, the widow was authorized to sue in such cases; but should she omit to sue for six months, the minor children of the decedent were to sue. The plaintiff's petition alleged that the deceased left minor children surviving him, but did not show that the action was instituted within six months after the decedent's death. Upon demurrer, the petition was adjudged insufficient, in that it did not state all the requirements essential to make a cause of action under the law of Missouri (lex loci delicti). The court said: "The provision designating where and by whom the suit may be brought is more than a mere limitation: it is a condition imposed by the legislature, which qualifies the right of recovery, and upon which its exercise depends."

So also, if the statute of the locus delicti which creates the liability prescribes a period within which the action must be brought, this is not a mere statute of limitation (and as such to be controlled by the lex fori2), but it is "a condition imposed by the legislature, which qualifies the right of recovery, and 998 which its exercise depends." But if the statute of the locus delicti designates no special period within which the action shall be brought, leaving the matter to be controlled by the general statutes of limitation, the question is to be decided in accordance with the lex fori.

upon

So also, it is believed, the lex loci delicti should regulate the

1 39 Kan. 687, 18 Pac. 57, 61.

2 Post, § 210.

Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 61; The Harrisburg, 119 U. S. 199, 214; Cavanagh v. Nav. Co., 13 N. Y. Supp. 540. But in actions for common law torts, the lex fori in general controls in respect to the period within which the suit may be brought. See Nonce v. R. R. Co., 33 Fed. 429, 436; Johnston v. R. R. Co., 50 Fed. 886.

Munos v. R. R. Co., 2 C. C. A. 163, 51 Fed. 188.