necessary nor proper parties to the suit; Dallas Rapid Transit Ry. Co. v. Elliott, 7 Tex. Civ. App. 216. Where a widow sues for the death of her husband, there is no misjoinder of parties plaintiff if she sues individually and as guardian of a minor child, the issue of her marriage with deceased: Helm v. O'Rourke, 46 La. Ann. 178. Dependency and Expectation of Benefits.— In Georgia, a mother or father cannot recover under the statute for the death of a child, unless it be shown that such mother or father was dependent upon such child for support, and that such deceased child contributed to the support or maintenance of the mother or father: Clay v. Central R. R. etc. Co., 84 Ga. 345. It is sufficient that a mother was partially dependent upon a deceased son, though her husband also contributed to her support: Daniels v. Savannah etc. Ry. Co., 86 Ga. 236; Richmond etc. R. R. Co. v. Johnston, 89 Ga. 560; as where all of a family reside together and labor for their mutual support, the proceeds of the labor of the minor child going into the common stock: Augusta Ry. Co. v. Glover, 92 Ga. 132; Atlanta etc. Ry. Co. v. Gravitt, 93 Ga. 369, 44 Am. St. Rep. 145. Where, however, a son, while serving a term in the penitentiary, was unlawfully killed, but at the time of his death was not actually contributing to his father's support, the latter could not recover for the homicide: Smith v. Hatcher, 102 Ga. 158. Where the deceased for years prior to his death had voluntarily cared for and supported his aged mother, a minor sister, and a minor niece, all of whom were without property or means of support, such support in the past gave them a reasonable expectancy of its continuance in the future; and, when coupled with the disabling advanced age of the mother, and the disabling minority of the others, and their want of property means, conferred upon them the right to recover under the statute as "dependents for support": Duval v. Hunt, 34 Fla. 85. It is not necessary that deceased should have been legally bound to support the plaintiff, provided there was a reasonable expectation of support or benefit: Chicago etc. R. R. Co. v. Branyan, 10 Ind. App. 570; Daly v. New Jersey Steel etc. Co., 155 Mass. 1; Winnt v. International etc. R. R. Co., 74 Tex. 32; Railroad Co. v. Barron, 5 Wall. 90; Boyden v. Fitchburg R. R. Co., 70 Vt. 125. Under the Colorado statute, it need not appear that plaintiff was dependent upon the person killed for support: Brennan v. Molly Gibson etc. Milling Co., 44 Fed. Rep. 795. See, also, Howard v. Delaware etc. Canal Co., 40 Fed. Rep. 195. Where an action is given next of kin for pecuniary damages resulting from the death of their relative, a reasonable expectation of benefit from deceased had he lived will support an action: Grotenkemper v. Harris, 25 Ohio St. 510; Pennsylvania R. R. Co. v. Adams, 55 Pa. St. 499. The mere receiving of occasional assistance does not show dependency for support upon the wages of deceased, under the Massachusetts statute: Hodnett v. Boston etc. R. R. Co., 156 Mass. 86 Compare Houlihan v. Connecticut River R. R. Co., 164 Mass. 555; Schnatz v. Philadelphia etc. R. R., 160 Pa. St. 602. Under a statute

allowing an action by a child for the death of its parent, the word "child" includes only those occupying the position of child to a parent and dependent upon the parent for support. It does not include a minor who is the head of a family: Pittsburgh etc. Ry. Co. v. Vining, 27 Ind. 513, 92 Am. Dec. 269. Nor can parents sue for the death of a child, free by age or emancipation, who contributed in no way to their support: Lehigh Iron Co. v. Rupp, 100 Pa. St. 95.

Nature of Injury.—An injury to a person resulting in his death cannot give to beneficiaries under a statute allowing an action for such injury any better basis for a recovery than deceased himself would have had had he survived. It is generally held under statutes modeled from Lord Campbell's act that no actions may be had thereunder for injuries resulting in death, unless the injury be of such a nature that deceased himself, had he lived, might have sued therefor: Spiva v. Osage Coal etc. Co., 88 Mo. 68; Quincy Coal etc. Co. v. Hood, 77 Ill. 68; Texas etc. R. R. Co. v. Berry, 67 Tex. 238. The applications of this rule are various. Thus, it may be stated that, in such an action brought by a beneficiary under the statute, all the defenses which would have availed had the action been brought by deceased are available to the defendant: Ohio etc. R. R. Co. v. Tindall, 13 Ind. 366, 74 Am. Dec. 259. These defenses include matters going to the cause of the injury, the nature of defendant's negligence, contributory negligence on the part of deceased, and matters of defense peculiar to the law of master and servant, all of which matters fall outside the scope of this note. In Sheffer v. Railroad Co., 105 U. S. 249, it appeared that deceased had been injured in a railway collision, and, becoming thereby disordered in mind and body, after an interval of eight months committed suicide. His representatives sued for his death, but were denied a recovery, the court relying upon the doctrine of proximate cause. In Rhode Island, it was held that a statute giving a cause of action for death "inflicted by the wrongful act of another" does not embrace the case of mere passive neglect or omission of duty: Bradbury v. Furlong, 13 R. I. 15, 43 Am. Rep. 1; and, under the same statute, that no action would lie for the death of a wife brought about by detaining her from her husband and slandering him: Neilson v. Brown, 13 R. I. 651, 43 Am. Rep. 58. In the last case cited, the court concluded thus: "We understand that statute to give a right of action in those cases in which, at common law, an action might have been maintained for the injury from which death resulted; but death could result from no injury, unless an injury to the deceased person, and for such injury only the deceased person could have maintained an action. It follows, therefore, that no action can be maintained under this statute, except in cases where the deceased person, had he lived, would have had an action. In this case, the count alleges that the wife was by persuasion detained from her husband, and landerous and false statements regarding him and her marriage were made to her. It seems clear that for these acts no action could have been maintained by the

wife or for her use, and therefore the present action must fall." See, also, Vawter v. Hultz, 112 Mo. 633.

State Statutes in Federal Courts-Marine Torts.-Actions for death based upon state statutes, are often brought in federal courts, generally where death resulted from a marine tort. It was formerly doubted that admiralty courts were obliged to adhere to the common-law rule denying actions for death, and held that such an action might be brought in admiralty in the absence of statute, but this doubt has been removed by the federal supreme court, and statutory authority is now necessary to the maintenance of such an action in admiralty, as in other courts. A statute of a seaboard state giving an action for wrongful death will support an action for wrongful death on the high seas within three miles of the state shore, brought in an admiralty court: In re Humboldt etc. Assn., 60 Fed. Rep. 428, where, by the state's constitution and laws, her boundaries extend three miles beyond the seashore: Humboldt Lumber etc. Assn. v. Christopherson, 73 Fed. Rep. 239. Such a statute will support an action in rem in a federal court of admiralty for death resulting from negligence on the part of a steamboat navigating a river of the state: The St. Nicholas, 49 Fed. Rep. 671. It was held in that case that it was unnecessary for the state statute to create a lien upon a vessel for the liability sought to be enforced: Compare The Willamette, 59 Fed. Rep. 797; Holmes v. O. & C. Ry. Co., 5 Fed. Rep. 75. Where there is no such lien created, an admiralty court may enforce the liability in personam: The City of Norwalk, 55 Fed. Rep. 98; but the liability is not enforceable by a libel in rem, except where such lien is created: The Corsair, 145 U. S. 335; Welsh v. The North Cambria, 40 Fed. Rep. 655; The Wydale, 37 Fed. Rep. 716; The Glendale, 81 Fed. Rep. 633. While a state statute may cover the case of death occurring through negligence upon navigable waters within the state's jurisdiction (Sherlock v. Alling, 93 U. S. 99), it cannot embrace the case of death on the high seas beyond the territorial limits of the state: Armstrong v. Beadle, 5 Saw. 484. Compare McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664, where it was held that the laws of the state to which a vessel belongs may be regarded as following her upon the high seas until she comes within the jurisdiction of some other government, and that a state statute giving an action for wrongful death covers the case of a death from negligence, upon the high seas, on a vessel hailing from, and registered within, the state. The right to recover the penal sum of five thousand dollars provided by the Missouri statute for occasioning death by negligence, unskillfulness or criminal intent, cannot be enforced in a federal court in another state, the rule applying that penal statutes are only enforceable in the sovereignty of their creation: Marshall v. Wabash R. R. Co., 46 Fed. Rep. 269.

Bar or Abatement of Action-Matters Relating Thereto.-The right of action which one spouse is given for the death of the other is not affected by his or her remarriage subsequent to such death: Georgia R. R. etc. Co. v. Garr, 57 Ga. 277, 24 Am. Rep. 492; International

etc. R. R. Co. v. Kuehn, 70 Tex. 582; Gulf etc. Ry. Co. v. Younger, 90 Tex. 387; Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548. This is upon the ground that "a right of action arises at the time of death to recover just what was lost by it; and that the loss thus occasioned is none the less, even though the injured party thereafter acquire, through his own skill or industry or the charity or affection of others. more than he lost": Railway Co. v. Maddry, 57 Ark. 306. Where two persons married while slaves, and continued to live together until after the enactment of a statute confirming slave marriages for all civil purposes, then separated, each marrying another, it was held that the woman still remained the lawful wife of the first husband and could recover for his wrongful death: Thomas v. East Tennessee etc. Ry. Co., 63 Fed. Rep. 420. Nor is a widow's action for her husband's death barred by the fact that she married him after he had received the injury which resulted in his death: Gross v. Electric Traction Co., 180 Pa. St. 99. In Texas, it is held that a wife under a common-law marriage, and the issue thereunder, are entitled to recover for the death of the husband and father: Galveston etc. Ry. Co. v. Cody, Tex. Civ. App., Feb., 1899. The remarriage of a woman, and the assumption by the husband of the duties of stepfather toward her child, do not affect her right to sue for the wrongful death of such child: Hennessey v. Bavarian Brewing Co., 145 Mo. 104, 58 Am. St. Rep. 554. A wife, though living in separation from her husband, is not prevented from maintaining an action for his death: Dallas etc. Ry. Co. v. Spieker, 61 Tex. 427, 48 Am. Rep. 297. This is true although the separation was for the twelve years preceding his death, during which time he contributed nothing to the support of his family: Baltimore etc. R. R. Co. v. Chambers, 81 Md. 371.

Bar or Abatement of Action-Former Recovery.-The usual aim of statutes creating a right of recovery for wrongful death is to allow only one action for an injury resulting in death. This, however, is not always true, as we shall see, but when it is plain from the language and intendment of the statute that only one action is allowed, a suit by one of the beneficiaries named in the statute is a bar to any subsequent action by other beneficiaries: Munro v. Pacific Coast Dredging Co., 84 Cal. 515, 18 Am. St. Rep. 248; Lubrano v. Atlantic Mills, 19 R. I. 129; Hartigan v. Southern Pac. Co., 86 Cal. 142; Beard v. Skeldon, 113 Ill. 584; Galveston etc. R. R. Co. v. Le Gierse, 51 Tex. 189; Paschal v. Owen, 77 Tex. 583; St. Louis etc. Ry. Co. v. Needham, 10 U. S. App. 339, 52 Fed. Rep. 371; Ewell v. Chicago etc. Ry. Co., 29 Fed. Rep. 57; Louisville etc. R. R. Co. v. McElwain, 98 Ky. 700, 56 Am. St. Rep. 385; Legg v. Britton, 64 Vt. 652. In placing such construction upon the Arkansas statute, Sanborn, C. J., in St. Louis etc. Ry. Co. v. Needham, 10 U. S. App. 339, 52 Fed. Rep. 371, said: "It gives 'an action,' a single action, not several actions for the wrongful killing. It provides that every such action must be brought in the name of the personal representatives, if there are such; otherwise, by the heirs-at-law. It will not be gravely insisted that the personal representatives

could maintain more than a single action, or that, where there are several administrators, one of them could maintain the action without joining all; and it is equally clear that when the action is brought by the heirs there must be but a single action, and all the heirs must be made parties to it, so that the entire controversy may be determined and the entire amount recovered and distributed in the single action given by the statute. The simplicity and effectiveness of such an action, the inconvenience and injustice to the plaintiffs and defendants alike resulting from any other practice; the rule of distribution of the amount recovered, based, not upon the injury to each person entitled to receive a share, but upon the statute of descents; the settled rule of law as to parties jointly interested in a cause of action, and the plain reading of the statute, compel the conclusion that such was the intention of the legislature." Where, under such a statute, two actions are begun, one by the personal representative, the other by the widow, the defendant may elect which he will defend, and plead the pendency of either in bar of the other: Henderson v. Kentucky Cent. R. R. Co., 86 Ky. 389. Under these statutes, a common-law recovery for suffering of the deceased intervening between his injury and his death bars the statutory action by beneficiaries: Conner v. Paul, 12 Bush, 144. For contrary holdings, see Clare v. New York etc. R. R. Co., 172 Mass. 211; Nelson v. Galveston etc. R. R. Co., 78 Tex. 621, 22 Am. St. Rep. 81; Bowes v. Boston, 155 Mass. 344; Hedrick v. Ilwaco R. R. etc. Co., 4 Wash. 400. Where plaintiff's intestate was killed, and his horses and wagon destroyed, in a collision with defendant's train, a suit by the administrator to recover for the death of his intestate is not barred by a former recovery by the same plaintiff of the value of the horses and wagon: Peake v. Baltimore etc. R. R. Co., 26 Fed. Rep. 495. But a widow's right of action is barred by a recovery of judgment had by her husband for his injuries: Legg v. Britton, 64 Vt. 652. See, also, Hecht v. Ohio etc. Ry. Co., 132 Ind. 507.

Bar or Abatement of Action-Compromise or Release.-Under purely survival statutes, or those preserving for the benefit of designated beneficiaries only the right of action which deceased would have had had he lived, a release or compromise for value executed by the deceased before his death is a good defense to an action brought by the beneficiaries under the statute after his death: Hill v. Pennsylvania R. R. Co., 178 Pa. St. 223, 56 Am. St. Rep. 754; Price v. Railroad Co., 33 S. C. 556, 26 Am. St. Rep. 700; Brown v. Electric Ry. Co., 101 Tenn. 252; ante, p. 666. Only a minority of our various statutes, however, belong to the class known as survival statutes. Where a statute creates a new cause of action, distinct from that which deceased might have had, a cause of action, not alone for injuries, but for death, and vests it in designated beneficiaries, aiming to compensate them for loss through the fact of deceased's death, a release or compromise by deceased before his death cannot logically bar an action by the beneficiaries for the death of the deceased: Hurst v. Detroit City Ry., 84 Mich. 539; Illinois Cent. etc. R. R. Co. v. Cozby, 69 Ill. App. 256; Maney v. Chicago etc. R. R.