As to the death of one of the parties in a divorce suit, see Divoscu.
The death of a defendant will discharge the special bail ; Tidd, Pr. 243 ; but when he dies after the return of the ca. sa. and be fore it is filed, the bail are fixed ; 6 Term 284 ; Boggs v. Teackle, 5 Binn. (Pa.) 332 ; Champion v. Noyes, 2 Mass. 485; Davidson v. Taylor, 12 Wheat. (U. S.) 604, 6 L. Ed. 743 ; Olcott v. Lilly, 4 Johns. (N. Y.) 407 ; Goodwin v. Smith, 4 N. H. 29.
At common law there was no right of ac tion for death by wrongful act ; Green v. R. Co., 28 Barb. (N. Y.) 9; Major v. Ry. Co., 115 Ia. 309, 88 N. W. 815 ; Duncan v. St. Luke's Hospital, 113 App. Div. 68, 98 N. Y. Supp. 867.
Lord Ellenborough, in Baker v. Bolton, 1 Campb. 493, held that "in a civil court the death of a human being cannot be complained of as an injury." Homicide Is always a purely criminal matter. In the early English law it was regarded more as a civil than a criminal offence, and damages were paid to the family of the de cedent known as wergilds. As, during the continuance of this custom, a process for the recovery of the wergilds was certainly given, it seems that when these offences grew no longer redeemable, the private pro cess was still continued, in order to secure the infliction of punishment upon the of fender, though the party injured was al lowed no pecuniary compensation; Jac. L. Diet. tit. Appeal. This process was known as an appeal of murder, and was permitted by statute to co-exist with the criminal ac tion. The defendant, if found guilty did not pay any damages to the plaintiff, but was punished as in a criminal case. The real ad vantage to the plaintiff lay in the fact that he could release his rights, and that such re leases were frequently of great pecuniary val ue; 7 Harv. L. Rev. 170. This appeal for mur der existed as late as 1818 in the case of Ashford v. Thornton, 1 B. & Ald. 405, where the court held that the appellor had a right to bring the case by writ of appeal, but that the appellee had an equal right to his plea of wager of battel. The appellor de clined to accept the decision of the court giving the appellee trial by battel and the latter was discharged. This led to the en actment of a statute the next year abolish ing appeal of murder, treason, etc., as well as wager of battel (59 Geo. III. ch. 46). Un til 1846 there was no civil remedy. In that year Lord Campbell's Act was passed (9 & 10 Viet. ch. 93), known as the Fatal Ac cidents Act, allowing a recovery for death caused by negligence or wrongful act. See APPEAL.
In the United States, like statutes have been passed modelled on this act. They dif fer principally in respect of the person who may bring the action. Their purpose is to provide the means for recovering damages caused by that which is essentially and in its nature a tort. Such statutes are not penal but remedial—for the benefit of the persons injured by the death.
An action to recover damages for a tort is not local, but transitory, and can, as a general rule, be maintained wherever the wrongdoer can be found ; Stewart v. R. Co., 168 U. S. 448, 18 Sup. Ct. 105, 42 L. Ed. 537. It may well be that, where a purely statutory right is created, the special rem edy provided by the statute for the enforce ment of that right must be pursued, but where the statute simply takes away a com mon-law obstacle to a recovery for what is admitted to be a tort, it would seem not un reasonable to hold that an action for that tort can be maintained where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be en forced ; Stewart v. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537, citing Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup.
Ct. 905, 36 L. Ed. 829 ; Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958.
Where the negligence which causes the accident occurs in one state or country, and the accident itself in another, it is the law of the latter place that governs; Rundell v. La Compagnie Gen. Trans., 100 Fed. 655, 40 C. C. A. 625, 49 L. B. A. 92 (in admiraity)• It is held that a new action is created for the benefit of the persons named in the stat ute, and not a continuation of a right of action belonging to decedent before his death ; In re Mayo's Estate, 60 S. C. 401, 3$ S. E. 634, 54 L. R. A. 660. So a cause of action for personal injuries which sur vives is held distinct from a cause of ae tion in favor of surviving relatives; Brown v. R. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579 ; Lubrano v. Mills, 19 R. I. 129, 32 Atl. 205, 34 L. R. A. 797; the two actions, though prosecuted by the same personal representative, are not in the same right, and a recovery in one is not a bar to a recovery in the other; Mahoning Valley R. Co. v. Van Alstine, 77 Ohio St. 395, 83 N. E. 601, 14 L. R. A. (N. S.) 893. That there is but one ground of liability, the wrongful act, and as all claims for dam ages grow out of the one wrong, it is un reasonable to say that the legislature in tended there should be two causes of ac tion based upon it, was held in Holton v. Daly, 106 Ill. 131. In Brown v. R. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579, it is said of that case: "True, in the circumstances named, there is but one wrongful act, but that is not the sole ground of action in the right of the deceased or the survivor. It takes the wrongful act and the loss to make the complete cause of action, and as the loss to the person upon whom the injury is inflicted must be recovered•by or in his right, and the loss to the surviving relatives by or in their right, the causes of action are clearly distinct." "If several per sons are made to suffer pecuniary loss by one wrongful act, each may very properly have his independent cause of action and remedy for the loss resulting to him, and, generally, in order to do complete jus tice, in the absence of some provision for a recovery for the benefit of all and a dis tribution of the proceeds, separate causes of action must necessarily exist." The principles on which the decedent's cause of action rested at common Iaw are the same irrespective of the cause of his death. It died with him, but is revived by the statute in favor of his administrator. It includes nothing more than the intes tate's cause of action. That act simply re vives but does not enlarge the common-law right of the decedent. The provision for surviving relatives introduced principles wholly unknown to the common law, name ly, that the value of a man's.life to his wife and next of kin constitute part of his es tate; Needham v. R. Co., 38 Vt. 294, where it is said that the damages to the widow and next of kin begin where the damage to the intestate ended-with his death. In Clare v. IL Co., 172 Mass. 211, 51 N. E. 1083, it was held that a judgment in an action by an administrator for personal injuries suf fered by plaintiff's intestate, and not for his death, is not a bar to the prosecution of an action for damages for his death. But it was further held that where one has both a common-law and a statutory right of ac tion for injuries, and has elected to pursue the atatutory remedy, an action on the other is barred; and while the right to maintain the statutory action for death is recognized, yet where damages have already been re covered under the common-law remedy, the statutory right is barred.