Opinion of the Court. by an appropriate common law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.” To like effect was cited Fourth National Bank v. Francklyn, 120 U. S. 747. The Court of Appeals was of opinion that the statute in Maryland not only created a statutory liability but prescribed a particular remedy, and that no action could be maintained, either in Maryland or elsewhere, unless that special remedy was pursued. Notwithstanding the ability with which the arguments in support of this conclusion are presented in the opinion of the Court of Appeals, we are unable to concur therein. A negligent act causing death is in itself a tort, and, were it not for the rule founded on the maxim actio personalis moritur cum persona, damages therefor could have been recovered in an action at common law. The case differs in this important feature from those in which a penalty is imposed for an act in itself not wrongful, in which a purely statutory delict is created. The purpose of the several statutes passed in the States, in more or less conformity to what is known as Lord Campbell's act, is to provide the means for recovering the 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. Dennick v. Railroad Company, 103 U. S. 11. It may well be that where a purely statutory right is created the special remedy provided by the statute for the enforcement of that right must be pursued, but where the statute simply takes away a common law obstacle to a recovery for an admitted tort, it would seem not unreasonable to hold that an action for that tort can be maintained in any State in which that common law obstacle has been removed. At least it has been held by this court in repeated cases that an action for such a 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 Opinion of the Court. the right of action is sought to be enforced." Texas & Pa cific Railway v. Cox, 145 U. S. 593, 605; see also Dennick v. Railroad Company, 103 U. S. 11; Huntington v. Attrill, 146 U. S. 657; Northern Pacific Railroad v. Babcock, 154 U. S. 190. What are the differences between the two statutes? As heretofore noticed, the substantial purpose of these various statutes is to do away with the obstacle to a recovery caused by the death of the party injured. Both statutes in the case at bar disclose that purpose. By each the death of the party injured ceases to relieve the wrongdoer from liability for damages caused by the death, and this is its main purpose and effect. The two statutes differ as to the party in whose name the suit is to be brought. In Maryland the plaintiff is the State; in this District the personal representative of the deceased. But neither the State in the one case nor the personal representative in the other has any pecuniary interest in the recovery. Each is simply a nominal plaintiff. While in the District the nominal plaintiff is the personal representative of the deceased, the damages recovered do not become part of the assets of the estate, or liable for the debts of the deceased, but are distributed among certain of his heirs. By neither statute is there any thought of increasing the volume of the deceased's estate, but in each it is the award to certain prescribed heirs of the damages resulting to them from the taking away of their relative. For purposes of jurisdiction in the Federal courts regard is had to the real rather than to the nominal party. Browne v. Strode, 5 Cranch, 303; M'Nutt v. Bland, 2 How. 9; State of Maryland, for use of Markley, v. Baldwin, 112 U. S. 490. See, also, Gaither v. Farmers' && Mechanics' Bank of Georgetown, 1 Pet. 37, 42, in which the issue submitted to the jury was, as stated, one between the bank to the use of Thomas Corcoran, plaintiff, and Gaither, the defendant, upon which the court said: "This practice is familiar with the Maryland courts, and when the action originates in that form, the cestui que use is regarded as the real party to the suit." It is true those were actions on contract, and this is an action for a tort, VOL. CLXVIII-29 Opinion of the Court. but still in such an action it is evident that the real party in interest is not the nominal plaintiff but the party for whose benefit the recovery is sought; and the courts of either jurisdiction will see that the damages awarded pass to such party. Another difference is that by the Maryland statute the jury trying the cause apportion the damages awarded between the parties for whose benefit the action is brought, while by the statute of the District the distribution is made according to the ordinary laws of distribution of a decedent's estate. But by each the important matter is the award of damages, and the manner of distribution is a minor consideration. Besides, in determining the amount of the recovery the jury must necessarily consider the damages which each beneficiary has sustained by reason of the death. By neither statute is a fixed sum to be given as a penalty for the wrong, but in each the question is the amount of damages. It is true that the beneficiaries of such an action may not in every case be exactly the same under each statute, but the principal beneficiaries under each are the near relatives, those most likely to be dependent on the party killed, and the remote relatives can seldom, if ever, be regarded as suffering loss from the death. We cannot think that these differences are sufficient to render the statute of Maryland in substance inconsistent with the statute or public policy of the District of Columbia, and so, within the rule heretofore announced in this court, it must be held that the plaintiff was entitled to maintain this action in the courts of the District for the benefit of the persons desig nated in the statute of Maryland. The judgment will be Reversed, and the case remanded for a trial upon the merits. Statement of the Case. THOMPSON v. MAXWELL LAND GRANT AND RAILWAY COMPANY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 91. Argued November 2, 3, 1897. - Decided December 6, 1897. That which has been decided on one appeal or writ of error, cannot be reëxamined on a second appeal or writ of error, brought in the same suit. Whenever a case comes from the highest court of a State for review, and, by statute or settled practice in that State, the opinion of the court is a part of the record, this court may examine such opinion for the purpose of ascertaining the grounds of the judgment. Although the judgment and the mandate in a given case in this court express its decision, it may examine the opinion for the purpose of determining what matters were considered, upon what grounds the judgment was entered, and what has become settled, for the future disposition of the case. In the former decision of this case, 95 U. S. 391, the decree was reversed on the ground that the bill, as it stood, was technically a bill of review; but it was further decided that certain matters then in issue were sufficiently and effectually determined by the proofs already in, and the reversal did not throw open the case for additional proofs upon such matters. An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit, to the same extent as a person of full age; and a decree made in a suit in which an infant is a party, by consent of counsel, without fraud or collusion, is binding upon the infant and cannot be set aside by rehearing, appeal or review. A compromise made in a pending suit which appears to the court to be for the benefit of an infant, party to the suit, will be confirmed without reference to a master; and, if sanctioned by the court, cannot be afterwards set aside except for fraud. THE facts in this case are as follows: In 1841 the Republic of Mexico made a grant to Charles Beaubien and Guadalupe Miranda of a large tract of land, generally known of late as the Maxwell Land Grant; so known because Lucien B. Maxwell, having acquired title from Beaubien and Miranda or their heirs, was, or at least claimed to be, for many years the sole owner. In September, 1859, the heirs of Charles Bent, namely, Alfred Bent and his two sisters, Teresina Scheurick Statement of the Case. and Estefana Hicklin, brought a suit in the District Court for the county of Taos in the Territory of New Mexico, against Beaubien, Miranda and Maxwell, claiming that under a parol contract their father, Charles Bent, was interested with Beaubien and Miranda in the ownership of the grant, and praying that such interest be established and decreed, and that it be also set off to them by partition. In June, 1865, upon the pleadings and proofs the court decreed to them an undivided fourth part of the grant, and appointed commissioners to make partition, giving specific directions for their guidance. Nothing was done under this decree. Soon thereafter negotiations were entered into between plaintiffs and Maxwell for a compromise of the litigation on the basis of Maxwell paying them a money consideration to relinquish their claim. It was agreed by the three plaintiffs that Alfred Bent and Aloys Scheurick, the husband of one of the sisters, should act in the matter as their agents to sell to Maxwell for the best price they could obtain, but never less than $21,000, or what Beaubien's heirs received. This compromise was advised and approved by their counsel. A conference was had in September or October, 1865, at Maxwell's residence, at which Alfred Bent demanded $21,000 and Maxwell offered $18,000. Alfred Bent returned from that conference to Taos, where the family resided, without having effected a definite agreement as to the price. The plaintiffs, however, considered the sale as good as made, but Alfred Bent advised his co-plaintiffs that they could get a few thousands more by being quiet a few days, insisting, however, on having as much as the Beaubien heirs should receive. The plaintiffs expected to close the bargain in a few days, were ready to make the deeds as soon as the matter was settled, and the deeds were in fact written out by Scheurick, the husband of one of the plaintiffs. Before the compromise was consummated and on December 15, 1865, Alfred Bent died, leaving surviving him his widow, Guadalupe Bent, and three infant children, Charles, Julian and Alberto Silas, aged respectively six, four and one years. On April 12 his widow was appointed administratrix of his estate and qualified. Just before his death Alfred Bent made a will, by |