In an action against a railway company for, extend to a case where the person in respect of damages caused to the plaintiff by the negli-whose death damages are sought to be recovered gence of the defendants, the statement of claim was an alien, and was at the time of the wrongalleged that at the date of the injuries com- ful act, neglect, or default which caused his death plained of the plaintiff's mother A. W. was quick on the high seas. The Explorer, 40 L. J., Adm. with child, namely, with the plaintiff, to whom | 41; L. R. 3 Adm. 289; 23 L. T. 604; 19 W. R. she afterwards gave birth; that the said A. W., 166. being so quick with child, was received by the defendants as a passenger to be safely and Bar to Subsequent Action.]-A judgment resecurely carried for reward to the defendants. covered by a widow, as an administratrix of her Averment that the defendants so negligently husband, for damages for his death, through the and unskilfully conducted themselves in carry- negligence or breach of duty of the defendant, is ing the said A. W., and the plaintiff, being then no bar to a subsequent action by her as adminisen ventre sa mère, that the plaintiff was thereby tratrix of her husband, to recover damages for wounded, permanently injured and crippled :-injuries arising from the same cause to his Held, on demurrer, that the statement of claim personal property. Barnett v. Lucas, Ir. R. 6 disclosed no cause of action. Walker v. G. N. | C. L. 247—Ex. Ch. S. P., Daly v. Deblin, WickRy, 28 L. R. Ir. 69. low and Wexford Ry., 30 L. R. Ir. 51 —C. A.

Illegitimate Child.] - An illegitimate child is not within the contemplation of the statute. Dickinson v. N. E. Ry., 2 H. & C. 735 ; | 33 L. J., Ex. 91; 9 L. T. 299; 12 W. R. 52. The parent of an illegitimate child has, by the law of Scotland, no right of action against a person whose negligence has caused its death. Clarke v. Carfin Coal Co. [1891] A. C. 412 H. L. (Sc.)

Mother.]-When a mother sought reparation from a master of works for the loss of her son, he having been killed by an accident occasioned through the master's default :-Held, that (as the mother had a legal claim on her son for support, and as he actually was supporting her at the time of his death) the mother's claim was valid. Weems v. Mathieson, 4 Macq. H. L.

215.

Even if there was no legal obligation on a child to maintain the parent, the imperfect moral obligation would have been sufficient to sustain an action, the son being her only support at the time of his death. Ib.

The widow and administratrix of a man who was alleged to have died in consequence of a railway accident, brought an action against the railway company for the benefit of herself and |his children, and recovered damages. She afterwards brought another action, suing again as administratrix, for the benefit of the estate, to recover costs of medical attendance during his lifetime The company having raised again certain issues which had been determined against them in the former action, she replied that they were estopped from so doing :-Held, that they were not estopped, as the two actio7; were not brought by her in the same right, the action under Lord Campbell's Act being a statutory action in which she sued as trustee for a specific class of persons, and therefore not brought in the same right as an ordinary, action by an administratrix. Leggott v. G. N. Ry., 45 L. J., Q. B. 557; 1 Q. B. D. 599; 35 L. T. 334; 24 W. R. 784.

Action must have been Maintainable by Deceased.]-The 9 & 10 Vict. c. 93, gives an action to the representative of a person killed by negligence only where, had he survived, he himself at common law could have maintained an action against the person guilty of the negligence. Senior v. Ward, 1 El. & El. 385; 28 L. J., Q. B. 139; 5 Jur. (N.S.) 172; 7 W. R. 261.

Therefore, where a miner was killed by the neglect of a rule made under 18 & 19 Vict. c. 108, for testing the sufficiency of the rope by which the miners were let down the shaft into the mine, which neglect, being known by the owner of the mine, would have rendered him liable, though the death was chiefly caused by the negligence of a fellow-servant :-Held, that the deceased having known of the rule for testing the rope, and of the violation of it, and having been warned to examine the rope, an action could not be maintained against the owner of the mine for com

Widow guilty of Adultery during Husband's Lifetime.]-At the trial of an action brought by the plaintiff, as the widow of the deceased, under the provisions of Lord Campbell's Act (9 & 10 Vict. c. 93), s. 2, against the defendants for negligence which caused the deceased's death, it appeared that the plaintiff was at the time of her husband's death, and had for many years previously been, living apart from him in adultery with another man. During the time they were so living apart the deceased did not support the plaintiff, though he occasionally gave her small sums of money-Held, that the action was not maintainable, inasmuch as the plaintiff had lost her legal right to support by reason of her adultery, and had no reasonable expectation of pecuniary advantage by the deceased remain-pensation. Ib. ing alive which could be taken into account by a jury. Stimpson v. Wood, 57 L. J., Q. B. 484; 59 L. T. 218; 36 W. R. 734; 52 J. P. 822.

Relative Within Six Months.]-An action under the 27 & 28 Vict. c. 95 (the act amending Lord Campbell's Act) can be sustained by a relative of the deceased, though brought within six calendar months from the death, unless there be at the time an executor or administrator of the deceased. Holleran v. Bagnell, 4 L. R. Ir. 740.

The 9 & 10 Vict. c. 93, gives to the personal representative of the person killed by the wrongful act, neglect, or default of another, not an independent cause of action, but a right of action, when there was a subsisting cause of action at the time of the death. Read v. G. E. Ry, 9 B. & S. 714; 37 L. J., Q. B. 278; L. R. 3 Q. B. 555; 18 L. T. 82; 16 W. R. 1040.

To a declaration on that statute, accord and satisfaction with the deceased in his lifetime is a good plea. Ib.

An action on the above statute can only be maintained where the deceased could have mainOn Death of Alien.]—The provision of the act tained the action if alive; therefore, if in an

action where the death is alleged to have been caused by the negligence of the defendant's servants, it is shown that the deceased, by his own negligence and carelessness, contributed to the accident, the defendant will be entitled to a verdict. Tucker v. Chaplin, 2 Car. & K. 730. S. P., Coyle v. G. N. Ry., 20 L. R. Ir. 409; Wright v. Midland Ry., 51 L. T. 539.

A person, being possessed of an income of 4,000l. a year, while travelling on a railway, met his death by the negligence of the servants of the company. The bulk of his property was settled upon his eldest son, a smaller portion being reserved for the benefit of his wife and younger children :-Held, that his representatives might maintain an action for the benefit of the wife and younger children, in respect of the injury arising to them from a pecuniary loss occasioned by the death, although that pecuniary loss would not have resulted from the accident to the deceased had he lived. Pym v. G. N. Ry., 4 B. & S. 396; 32 L. J., Q. B. 377; 10 Jur. (N.S.) 199; 8 L. T. 734; 11 W. R. 922—Ex. Ch. The personal representatives of a deceased person cannot maintain an action under Lord Campbell's Act (9 & 10 Vict. c. 93), where the deceased if he had survived would not have been entitled to recover. Haigh v. Royal Mail Steam Packet Co., 52 L. J., Q. B. 640 49 L. T. 802; 5 Asp. M. C. 189; 48 J. P. 230—C. A.

Death on Spot.]-To a declaration alleging that by reason of the negligence of the defendant's servant the plaintiff's daughter and servant was killed, and claiming damages for loss of services, and for the burial expenses paid by the plaintiff, the defendant pleaded, first, that the daughter and servant were killed on the spot by the act complained of, so that the plaintiff did not, and could not, sustain damage entitling him to sue; and, secondly, that the act complained of was a felonious act on the part of the defendant's servant, and that this servant had not, before the action, been tried, committed or prosecuted in any way in respect of the same-Held, that the second plea afforded no answer to the declaration; and held by Kelly. C.B., and Pigott, B., that the first plea afforded a good answer, on the ground that, apart from 9 & 10 Vict. c. 93, no civil action is maintainable against a person who has by negligence caused the death of another. But by Bramwell, B.. that the first plea afforded no answer, and that the action was maintainable. Osborn v. Gillett, 42 L. J., Ex. 53; L. R. 8 Ex. 88; 28 L. T. 197; 21 W. R. 409.

2. DAMAGES.

him independent of any earnings which his son might have been afterwards competent to gain : -Held, that there was no evidence to enable a jury to say it was reasonably probable that pecuniary benefit would have resulted to the father from the continuance of the life of the child, and that the defendants were entitled to judg ment. Bourke v. Cork and Macroom Ry., 4 L. R., Ir. 682.

Per Palles, C.B. :-Though the pecuniary loss required to sustain such an action may be evidenced by proof of a reasonable expectation of pecuniary benefit, yet there must be evidence from which a jury shall be able to arrive, otherwise than by guess or speculation, at the conclusion that there was such reasonable expectation; and this involves (1) a reasonable expectation that profit would be m de by the continuance of the life; (2) a reasonable expectation that some part of the profit so made would become the property of the person on whose behalf damages are claimed, either as of bounty or of right. Ib.

Semble, per Dowse, B.:-That, in a case of this description, the plaintiff could not succeed without proof of a state of facts in connection with the deceased at the time of the death, out of which pecuniary advantage arose or had formerly arisen, and was likely to again arise, to the father, and the continuance or renewal of which pecuniary advantage the father might have reasonably expected if the son's life had continued. Ib.

Damage of a pecuniary nature must be shown; but the damages are not to be given merely in reference to the loss of a legal right; they should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life of the deceased. Franklin v. S. E. Ry., 3 H. & N. 211; 4 Jur. (N.S.) 565; 6 W. R. 573. S. P., Weems v. Mathieson, 4 Macq. H. L. 215.

In an action by a father for the death of his son, the father was an old man, getting infirm, who lived in the lodge of a hospital, and was employed to carry coal round the wards, for which he was paid 38. 6d. a week-whether under a contract or by way of gratuity did not appear. The son was a young man, earning good wages, who did not live with his father, but was in the habit of gratuitously assisting him by carrying the coals round the wards for him; but the father, not being in need, was not supported by him in any other way :-Held, that the father had such reasonable expectation of pecuniary benefit from the continuance of his son's life as would enable him to maintain the action. But the jury having found a verdict for him with 757. damages :-Held excessive. Ib.

Proof of Loss-Must be Pecuniary.]-In an action under Lord Campbell's Act (♬ & 10 Legal liability alone is not the test of injury in Vict. c. 93; 27 & 28 Vict. c. 95), by a father for respect of which damages may be recovered; the death of his son (who was about fourteen but the reasonable expectation of pecuniary years of age at the time of the occurrence), it did advantage by the relation remaining alive may not appear that the plaintiff had ever received be taken into account by the jury; and damages from the deceased benefits or services which may be given in respect of that expectation could in any sense be regarded as of pecuniary being disappointed, and the probable pecuniary value. It was, however, proved that the child loss thereby occasioned. Dalton v. S. E. Ry. was, up to the time of his death, a strong, intel-4 C. B (N.S.) 296; 27 L. J., C. P. 227; 4 Jur. ligent, and well disposed boy; that he had been (N.S.) 711; 6 W. R. 574. receiving at school education for mercantile pur- In an action by a widow for damages upon suits; and that in a few years, if he had lived, the death of her son, aged fourteen, who his services would have been worth a substantial had never earned any wages, but whose capasalary in the plaintiff's own shop or a similar bilities were valued at 6d. per day, the proestablishment. The plaintiff himself was a re-bability that he would have enabled his spectable tradesman, and his position rendered mother to earn more or would have devoted

part of his earnings to her support, is evidence | the plaintiff, a laundress, for the death of her to go to the jury upon a question of damages. mother, it was proved that the deceased resided The probability is increased by the past filial with the plaintiff, by whom she was lodged and conduct of the deceased. Condon v. Great maintained, and that the deceased assisted in the Southern and Western Ry., 16 Ir. C. L. R. 415.

There was no evidence of the cost of boarding and clothing the boy. The judge having left it to the jury, to say whether the father had sustained any pecuniary loss by the death of his son, and the jury found a verdict with 50%. damages -Held, that as there was evidence for the jury, the father was entitled to retain the verdict for the amount. Duckworth v. Johnson, infra.

Trifling.]-In an action under Lord Campbell's Act (9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95), by a father for the death of his daughter who was about the age of seven at the period of the accident, the only evidence given to show that the plaintiff sustained a pecuniary loss by the child's death was, that she had been in the habit of rendering trifling household services such as her tender years permitted, but which were incapable of being estimated at any pecuniary value :-Held, that this evidence was insufficient to sustain the action. Holleran v. Bagnell, 6 L. R., Ir. 333.

Nominal.] The action cannot be supported to recover merely nominal damages. Boulter v. Webster, 11 L. T. 598; 13 W. R. 298.

Actual damage must have accrued from the death of the deceased. Proof of the death and of relationship of the parties does not give a right to nominal damages. Duckworth v. Johnson, 4 H. & N. 653; 29 L. J., Ex. 25; 5 Jur. (N.S.) 630; 7 W. R. 655.

thing about costs, on the ground that the jury had shrunk from their duty of deciding the issue. Springett v. Balls, 6 B. & S. 477.

Calculation of Loss - Deducting Insurance Policy.]-In estimating the damages for the death of a relative killed by the wrongful act, neglect, or default of another person, the amount of the life insurances left by the deceased should be deducted from the amount of damages. Hicks v. Newport, Abergavenny and Hereford Ry., 4 B. & S. 403, n.

The right conferred by Lord Campbell's Act, to recover damages in respect of death occasioned by a wrongful act, neglect, or default, is restricted to the actual pecuniary loss sustained by the plaintiff. Where the widow of deceased is plaintiff, and her husband had made provision for her by a policy on his own life in her favour, the amount of such policy is not to be deducted from the amount of damages previously assessed irrespective of such consideration. She is benefitted only by the accelerated receipt of the amount of the policy, and that benefit being represented by the interest of the money during the period of acceleration, may be compensated by deducting future premiums from the estimated future earnings of the deceased. Hicks v. Newport, &c., Ry. (4 B. & S. 403, n.) approved. Grand Trunk Ry. of Canada v. Jennings, 58 L. J., P. C. 1; 13 App. Cas. 800; 59 L. T. 679; 37 W. R. 403-P. C. But held otherwise in Yates v. White, 4 Bing. (N.C.) 272; 5 Scott, 640; 7 L. J., C. P. 116; and Bradburn v. G. W. Ry., 44 L. J., Ex. 9; L. R. 10 Ex. 1; 31 L. T. 464; 23 W. R. 48.

Mental Sufferings, &c., not.]-In an action founded on the 9 & 10 Vict. c. 93, by the wife, husband, parent, or child of a person killed by misfeasance, the jury, in estimating the damages, Directions of Judge-Annuitant.] — In cannot take into consideration mental sufferings actions under Lord Campbell's Act (9 & 10 Vict. or loss of society, but must give compensation c. 93), to recover damages for the benefit of a for pecuniary loss only. Blake v. Midland Ry., relative to whom the deceased had covenanted to 18 Q. B. 93; 21 L. J.. Q. B. 233; 16 Jur. 562. pay an annuity during their joint lives, it is unIn England the injury sustained by the acci-objectionable to direct the jury that they may dental death of a relative must, in order to be estimate the damages to the annuitant by calcucompensated by a jury, be of a pecuniary lating what sum would buy him an equally good character, and the jury cannot give damages for annuity. That sum must depend, in addition to affliction. In Scotland the jury administers a other contingencies, on the probable duration of solatium for injured feelings. Paterson v. Wal- the lives, and to ascertain that it is material to lace, 1 Macq. H. L. 748. know the average duration of the lives of persons of the same age as the lives in question. Such average and probable duration cannot be better shown than by proving the practice of life assurance companies, who learn it by experience; evidence may therefore be given of such practice, and tables-which purport to show the average duration of the lives of persons of all ages and the value of annuities on government or other very good security for such lives, and to which those companies refer for information-may be consulted to show what is the average and probable duration of the lives in question, and what is the present value of the annuity, provided the attention of the jury is called to the difference in value between an annuity on government security, and one secured by a personal covenant. Rowley v. L. & N. W. Ry., 42 L. J., Ex. 153; L. R. 8 Ex. 221; 29 L. T. 180; 21 W. R. 869-Ex. Ch.

Funeral Expenses, &c., not.]-Compensation for the funeral expenses or for family mourning is not recoverable. Dalton v. S. E. Ry., supra.

Death of Child after Verdict.]-In an action by a child to recover damages for injuries purely personal, where the jury assessed the damages, presumably on the ground that the child would never be capable of earning his own living, the court refused to grant a new trial on account of the death of the child after verdict given and before judgment signed. Kramer v. Waymark, 4 H. & C. 427; 35 L. J., Ex. 148; L. R. 1 Ex. 241; 12 Jur. (N.S.) 395; 14 L. T. 368; 14 W. R. 659.

Where Damages given absurd.]-In an action by an administratrix for compensation for loss sustained in consequence of the death of the intestate, the question being whether there was negligence in the defendant or contributory negligence in the deceased, the jury found a verdict for the plaintiff, damages 408., 17. for the widow, and 10s. for each of the children; the court granted a new trial without saying any

In such cases the only legal direction to the jury is that they must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider, under all the circumstances, a fair compensation. A direction, therefore,

which leaves it open to the jury to give the | all other persons (if any) to be determined purpresent value of an annuity equal in annual suant to the statute. The father of the deceased amount to the income lost, for a period sup-applied to have his name added as a party to posed to be equal to that which would have continued if there had been no accident, is a misdirection, and any evidence (such as that instanced above) given solely to enable a jury to calculate such present value is inadmissible, because necessarily misleading and legally irrelevant. Ib.