of the suit.16 But in the case of a widow, husband, child or parent no question of dependency is involved.17

§ 82. Who are dependent on deceased. In the previous section it is said that a partial dependency on the deceased was all that was necessary. Who is dependent is, of course, a question of fact. An invalid sister who has received each month thirty or thirty-five dollars, is unable to pay her doctor bills or to work, and is, in fact, dependent upon her deceased brother, comes within the statute.18 An indigent mother living with her unmarried son and depending upon him for support, is dependent upon him within the meaning of a statute similar to the one under discussion.19 Where an aged father lived in a foreign country, was feeble, destitute, unable to work, and the deceased had many times sent him money, it was held that he was dependent on the deceased son.20 But where it appeared that the alleged beneficiary was a half sister with two children, that the deceased came to see her at times and then usually gave her money, and sent her money every other week or so for her rent, and she had no other means of support, and since his death had supported herself, it was held that she was not dependent upon him, there being nothing to show the amount of her earnings or that she was, in fact, dependent upon him.21 The question of dependency does not depend upon a strict legal right to it, as where a person because of some disability, and without property, was dependent on the deceased for support, and because of past support he had reasonable expectancy of the continuation if the deceased had lived.22 And the fact that

the deceased had paid attentions to a young lady with a view to marriage does not even tend to show his parents were not dependent on him for support.23 Where two brothers and a nephew, with whom deceased lived and did housework they were held entitled to recover, though there was no legal obligation on her part to support them.24 The fact that the beneficiary is a married woman will not defeat her right of action where she does not live with her husband, is not supported by him but was, in fact, dependent on the deceased.25 And the fact that the beneficiary is supported by others after the death of the deceased does not prevent a recovery. The fact of dependency must be established by the plaintiff 27 for there can be no recovery unless that be shown.28

26

§ 83. Bastard.-A suit for the benefit of a bastard where its reputed father has been killed cannot be maintained; for he is not of "kin" to the reputed father.29 And it has been held that the mother of an illegitimate child cannot recover for its death,30 though it is believed that this is an incorrect decision, and the contrary has been held.31

29 McDonald v. Pittsburg, etc., R. Co. 144 Ind. 459; 43 N. E. Rep. 447; Thornburgh V. American, etc., Co. 141 Ind. 443; 40 N. E. Rep. 1062; Dickinson v. Northeastern R. Co. 2 H. & C. 735; 33 L. J. Exch. 91; 9 L. T. (N. S.) 299; 12 W. R. 52; Good v. Towns, 56 Vt. 410.

30 Harkins v. Philadelphia, 15 Phila. 286. See Marshall v. Wabash R. Co. 46 Fed. Rep. 269; Robinson v. Georgia R., etc., Co. 117 Ga. 168; 43 S. E. Rep. 452; Runt v. illinois, etc., R Co. 88 Miss. 575; 41 So. Rep. 1; McDonald v. Southern R. Co. 71 S. C. 352; 51 S. E. Rep. 138.

31 Muhl v. Southern M. R. Co. 10 Ohio St. 272.

$ 84. Emancipated child. The fact that the child of the deceased father has been emancipated is no defense.32 Nor is it a bar to the action that the child was not living with the father at his death,33 or its custody awarded to the divorced wife.34

§ 85. Adopted child.-It has been held that an adopting father could sue for the death of his adopted child,35 and it would seem that suit could be brought for the death of the adopting father where such adopted child was the sole beneficiary. Yet it has been held that such a child is not "next of kin." 36 But a child that had been merely given to the deceased cannot be treated as a beneficiary, not being of kin.3

37

§ 86. Posthumous child.-The action may be brought for the benefit of a child en ventre sa mere at the time of its father's death.38 Such a child is a "surviving child." 39

§ 87. Beneficiaries must survive deceased-Complaint.If there be no person alive designated as a beneficiary by the statute, then no action can be maintained. The survival of

38 State v. Soale, 36 Ind. App. 73; 74 N. E. Rep. 1111 (sale of intoxicating liquors to the father, resulting in his death); Quinlen v. Welch, 69 Hun, 584; 23 N. Y. Supp. 963; Thelluson v. Woodford, 4 Ves. 227; 11 Ves. 112.

Nelson v. Galveston, etc., Ry. Co. 78 Tex. 621; 14 S. W. Rep. 1021; Texas, etc., Ry. Co. v. Robertson (Tex.), 17 S. W. Rep. 1041; The George and Richard, L. R. Ad. & Ecc. 466; 24 L. T. (N. S.) 717; 20 Weekly Rep. 245; Galveston, etc., R. Co. v. Contreras, 31 Tex. Civ. App. 489; 73 S. W. Rep. 1051.

a beneficiary is essential to the maintenance of the cause of action. It is, therefore, essential for the administrator to show that a person survived the deceased employe who was then a beneficiary; and if he do not, his complaint or declaration will be insufficient; and if it do not contain an allegation of that fact, the judgment will be subject to a motion to arrest it.42

§ 88. Statute of limitations.-The action must he brought within two years after the death of the injured person,*

44

and the time is not extended by the pendency and dismissal of a former action as allowed by some codes in the ordinary cases. The statute requiring the action to be brought within two years is not, strictly speaking, a statute of limitations, which must be specially pleaded, but is an absolute bar, not removable by any of the ordinary exceptions of that statute. "This is not strictly a statute of limitations," said the Supreme Court of North Carolina. "It gives a right of action that would not otherwise exist.

946

It must be accepted in all respects as the statute gives it. Why the action was not brought within the time. does not appear, but any explanation in that respect would be unavailing, as there is no saving clause as to the time within which the action must be begun." "The time within which the suit must be brought," said Chief Justice Waite, "operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." "The liability and the remedy [in admiralty] are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right." 47 It follows from those statements that if the complaint shows the action was not brought within the two years, it is demurrable.*7* No exception can be alleged to excuse the delay.48 The statute provides that the action must be " commenced within two years from the

Rodman v. Missouri Pac. Ry. Co. 65 Kan. 645; 70 Pac. Rep. 642; 59 L. R. A. 704; Cavanagh v. Ocean, etc., Co. 13 N. Y. Supp. 540; 9 N. Y. Supp. 198; 11 N. Y. Supp. 547; 12 N. Y. Supp. 609; Boyd v. Clerk, 8 Fed. Rep. 849.

45 Hill v. New Haven, 37 Vt. 501; Landigan v. New York, etc., R. Co. 5 Civ. Proc. Rep. (N. Y.) 76; Bonnell v. Jowett, 24 Hun, 524.