(2) Other actions for injury to a child. If the child, when thus injured, is of sufficient age to render acts of service, the action is maintainable. If, however, the injury is temporary, and the child is too young at the time the injury is inflicted. to render service, substantial damages cannot be recovered by the parent. If, on the other hand, the injury be permanent, prospective damages are recoverable by the parent up to the time when the child would have reached twenty-one years of age. Such damages are necessarily, to a considerable extent, conjectural, since the child might not have attained his majority, even had the injury not occurred, or have been able to render service, and the parent might not live till that time; still, the whole matter must, at a trial, be submitted to the jury. (a) Expenses attributable to the injury, actually incurred, or immediately necessary, (b) are also recoverable by the parent, but not such as are prospective. These can only be recovered, if at all, by an action in the child's own name."

It has been held in one case to be a rule of law that if a young child be wrongfully killed by another, the parent can recover damages for loss of service up to the time when the child would have attained twenty-one had he lived.3

This decision has met with much criticism in later decisions.4 The importance of the decision is seriously diminished by modern statutes, allowing actions by persons standing in various

of an American vessel during a voyage to seduce and have illicit connection with any female passenger. Conviction cannot be had on the testimony of the female alone. The subsequent intermarriage of the parties may be pleaded in bar of the conviction. In New York, the woman must be unmarried, and seduced by means of a promise of marriage, and must be of previous chaste character. N. Y. Penal Code, §§ 284-286. Under this act it is not material that the promise was made some time prior to the illicit intercourse. Armstrong v. The People, 70 N. Y. 38. The crime may be committed, even though the accused effected his object by means of a conditional promise that if the girl would permit the illicit connection he would marry her. Boyce v. The People, 55 N. Y. 644; Kenyon v. The People, 26 N. Y. 203. It is no defence that after the alleged act

(a) Dollard v. Roberts, 130 N. Y. 269.

of seduction the female has had unlawful connection with another (Boyce v. The People, supra), nor that pregnancy did not follow. The Penal Code, § 282, also makes the abduction of females in certain instances criminal.

1 Castanos v. Ritter, 3 Duer, 370.

2 Cuming v. B. C. R. R. Co., 109 N. Y. 95. The action in this case was brought by the mother. See also Hussey v. Ryan, 64 Md. 426; Dennis v. Clark, 2 Cush. 347. The English cases do not seem to allow recovery for such expenses unless the child is at the time old enough to render acts of service. Grinnell v. Wells, 7 Man. & G. 1033; Hall v. Hollander, 4 B. & C. 660.

8 Ford v. Monroe, 20 Wend. 210.

4 Green v. Hudson River R. R. Co., 2 Abb. Ct. App. Dec. 277; Carey v. Berk. shire R. R. Co., 1 Cush. 475.

(b) Dollard v. Roberts, supra; Barnes v. Keene, 132 N. Y. 13.

relative positions to recover compensation in case of injuries to those with whom they are connected, causing death. As this right is a statutory one, the statutes must be consulted for details. Some general principles governing this legislation may properly be stated here, although it is not confined to the case of a parent seeking to recover for the loss of a child.

At the common law no action would lie for an injury causing death. None could possibly be maintained by the person killed. The better opinion is that none could be brought for loss of service, unless for such as should be suffered in an interval between the injury and death. Where the death was instantaneous, no action would lie on behalf of any one.1

This defect in the law was remedied in England by a statute known as Lord Campbell's Act.2 The substance of this act has been enacted in many of the States. The leading points in it are these:

(1) When a party injured would have had an action against a wrong-doer if death had not ensued, the latter is liable to an action notwithstanding the death of the party injured.

(2) The action is to be brought by the executor or administrator of the person deceased, for the benefit of the wife, husband, parent, and child of such person.

(3) The jury may give damages proportioned to the injury, and may divide them, after deduction of costs, among the beneficiaries above named by their verdict.

(4) There cannot be more than one action for the same subject matter of complaint. (a)

(5) The action must be commenced within twelve calendar months after the death. (b)

The second statute permits the parties in interest, or one or more of them, to sue where there is no action brought by the executor or administrator within six months, and also allows the person causing the injury to pay the money into court under certain regulations.

1 Per LORD BLACKBURN in Seward v. "Vera Cruz,” L. R. 10 App. Cases (H. L.) 59, 70.

2 So called from the name of its princi

(a) A recovery, in an action under Lord Campbell's Act, is not a bar to a subsequent action on contract by the personal representative, for damages to the estate of the deceased during his lifetime, caused by the breach of contract which resulted in death. Daly v. D. W. & W. Ry. Co., 30 L. R. Ir. 514; Bradshaw v. Lancashire

pal promoter, 9 & 10 Vict. c. 93, amended 27 & 28 Id. c. 95. See also N. Y. Code of Civ. Pro. §§ 1902-1905.

Ry. Co., L. R. 10 C. P. 189; Cf. Pulling v. Great Eastern Ry. Co., L. R. 9 Q. B. D. 110; Cregin v. Brooklyn Crosstown Ry. Co., 75 N. Y. 192.

(b) The limitation in New York is two years from the date of death. Code of Civ. Pro. § 1902.

The following leading rules prevail in the construction of this and similar statutes.

Rule I. If the injured party, had he lived, could not successfully have maintained an action, the executor or administrator cannot. One prominent result is, that if the person killed was guilty of negligence contributing to the injury, no recovery is allowed.1 The expression "contributory negligence" means that neglect on the part of the person injured, without which the death would not have happened. He is thus in a sense the author of the injury and consequent death. This rule is not applied in the case of young children injured or killed, with the same severity as in the case of adults. Thus, it has been held not to be negligence in itself for the parents of an intelligent child four and a half years old to permit it to play in the crowded streets of a city without an attendant, the child having no other place for amusement.2 Special circumstances might exist which would make the question one of fact, to be decided by a jury.

Rule II. The amount of damages to be recovered in the action is to be determined by the jury under all the circumstances subject to such review as is allowed by the practice of the court in the case of excessive damages. In the case of a

child, it would seem that the damages are not necessarily limited to its minority. In some States there is a positive limitation beyond which the verdict may not go, as, for example, $5,000. It is clear that the father may recover the whole value of the child's services up to majority, within the statutory limit, if any.1

Rule III. The statute has but a local effect, and the injury must occur within the State where the action is brought, or if not, within a State having a statute of the same kind.

Rule IV. The object of this legislation was to give a personal action for damages for a personal injury. It cannot be properly extended to an action in a court of admiralty against a ship for injuries done, without clearer words in this or some other statute.5 (a)

1 This rule is not applied under the Massachusetts statutes to a passenger. Merrill v. Eastern R. R. Co.,139 Mass. 252.

2 Birkett v. Knickerbocker Ice Co., 110 N. Y. 504. See as to contributory negli gence in this class of cases, Batcheler v. Fortescue, L. R. 11 Q. B. D. 474.

(a) An action in personam against the owners of the vessel will lie in the Admi

8 Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.

↑ McGovern v. N. Y. Central R. R. Co., 67 N. Y. 417.

5 Seward v. Vera Cruz R. R., L. R. 10 App. Cas. 59. There were words in another act giving the court of admiralty jurisdic

ralty Division. The Bernina, L. R. 12 P. D. 58; aff'd, 13 App. Cas. 1.

Rule V. Mere mental suffering from the death of a child is not an element of damage under these statutes.1 There must be true damages, and if none are shown, only nominal damages can be recovered.2 Conjectural damages are not recoverable,—such as that the party killed was in the line of promotion, and would have received higher wages.3

Independent of Lord Campbell's Act and others resembling it, the right of a parent to recover damages is so far affected by the act of the child, that if the latter, by an act of negligence contributing to the injury, could not himself recover, the father cannot. As has been seen, this doctrine of negligence is not to be applied to a very young child, where the parent or other person having it in charge is not negligent. Where there is doubt as to the capacity of the child to exercise care, and so avoid the effect of the negligent acts of another, the whole question will be submitted to the jury. As a general rule, persons doing acts which may, when they are negligent, result in injury to young children, are bound, if they are aware of their presence, to exercise more care to avoid injuring them than in the case of mature persons.

The cause of action in this class of cases is founded in tort.

Where the injury causing death was committed on the high seas, obscure questions are presented, involving the power of the States to legislate upon matters occurring upon the high seas, if the ship belongs to one who is domiciled within the State. The following propositions have been decided: (1) The court of admiralty has no jurisdiction in such a case independent of statute. (a) This result was reached by holding, in the first instance, that by the common law no action lies in a common-law court for any injury which results in death;7 and next, by an adjudication that there is no distinction between the admiralty law and the strict common law on this point. (2) The law of the State will be applition over claims "for damage done by any 4 Mangam v. Brooklyn R. R. Co., 38 ship." These words were not sufficient to N. Y. 455. include a case under Lord Campbell's Act.

1 Galveston v. Barbona, 62 Tex. 172. 2 Atchison, &c. R. R. v. Weber, 33 Kan. 543.

3 Brown v. Chicago, R. I. & P. R. R. Co.. 64 Iowa, 652.

(a) The Wydale, 37 Fed. R. 716; Welsh v. The North Cambria, 39 Fed. R. 615; The Alaska, 130 U. S. 201; The Oregon, 45 Fed. R. 62. A libel in rem for damages incurred by loss of life will not be entertained by the District Court of

O'Mara v. Hudson River R. R. Co., 38 N. Y. 445; Ihl v. R. R. Co., 47 N. Y. 317. 6 Robinson v. Oceanic S. N. Co., 112 N. Y. 315.

7 Insurance Co. v. Brame, 95 U. S. 754. 8 The Harrisburg, 119 U. S. 199 and many cases cited in the opinion.

the United States, sitting as a court of admiralty, where the local law which gives a right of action to the personal represen tatives of the deceased does not expressly create a lien. The Corsair, 145 U. S. 335.

cable where a citizen of such State is wrongfully killed on board of a vessel on the high seas, where the vessel was registered at a port within the State. This decision involves the further propositions that the law of the State extends even to acts done on the high seas, if not in conflict with the maritime jurisdiction of the United States, and that there is no such conflict of jurisdiction.2 (a)

A parent may proceed under the Civil Damage Act for injuries caused by the sale of intoxicating drinks to his child. The principles governing this subject have already been considered in the fifth section of the chapter on the law of husband and wife.3

The father, however, as such, has no right to the estate of the child derived by inheritance, bequest, or from other sources. If there be money belonging to him in the hands of an executor or administrator, he cannot, as father, demand it. He must claim it, if at all, in the character of guardian, after giving the usual bonds. Should he reside out of the State, he must be appointed guardian here. Should he, as father, assume to sell his child's goods, he would convey no title to the purchaser.

SECTION III. The Relation of the Child towards the Parent.This topic may be considered under three subdivisions.

I. Status or domicile. II. Rights of child as such. III. Duties of children towards parents.

1 McDonald v. Mallory, 77 N. Y. 546. 2 This point is by no means acquiesced in by all students of maritime law. The New York court at first decided differently in the case of Kelly v. Crapo, 45 N. Y. 86. This decision was reversed in Crapo v. Kelly, 16 Wallace (U. S.) 610, apparently on the ground that the ship, though on the high seas, might be a part of the territory of a State, and, for some purposes, as completely so as if she had been physically within the bounds of that State. This may be conceded to be the general rule of maritime law, and yet it may not be applicable to this country, by reason of the maritime jurisdiction conferred by the Constitution upon the United States. The whole matter thus depends upon the true construction of the Constitution. This is singularly vague and indefinite as to the legislative power of Congress over maritime subjects, though the judicial power is conferred in very broad and comprehensive terms. It extends "to all cases of admi

ralty and maritime jurisdiction." Art. III, § 2. It would seem reasonable to hold that the legislative power was by implica tion exclusively vested in Congress, without reference to the clause concerning foreign or interstate commerce, as being legislation necessarily of a national character or for national purposes. The opposite view leads to the almost whimsical conclusion that each State, no matter how far from the ocean, has for certain purposes its own maritime law. The difficulties attending this view are forcibly stated in a pamphlet written by R. C. McMurtrie, published April 4, 1889.

8 Ante, pp. 226 et seq.

4 Genet v. Tallmadge, 1 Johns. Ch. 3; s. c. Id. 561.

5 Williams v. Storrs, 6 Johns. Ch. 353. In New York a legacy under $50 may be paid to a father for the use of a minor child. Code of Civ. Pro. § 2746.

• Fonda v. Van Horne, 15 Wend. 631.

(a) Cf. Welsh v. The North Cambria, 40 Fed. R. 655.