court below it was held that as the cause of action is based on a special statute of New Jersey, the plaintiff could not recover in this action.

Opinion by MR. JUSTICE MILLER.

It is understood that the decision of the court below rested solely upon the proposition that the liability in a civil action for damages which, under the statute of New Jersey, is imposed upon a party, by whose wrongful act, neglect or default death ensues, can be enforced by no one but an administrator or other personal representative of the deceased, appointed by the authority of that state. And the soundness or unsoundness of this proposition is what we are called upon to decide. It must be taken as established by the record that the accident by which the plaintiff's husband came to his death occurred in New Jersey, under circumstances which brought the defendant within the provisions of the first section of the act making the company liable for damages, notwithstanding the death.

§ 581. A liability arising under the statutes of one state may be enforced by the courts of another.

It can scarcely be contended that the act belongs to the class of criminal laws which can only be enforced by the courts of the state where the offense was committed, for it is, though a statutory remedy, a civil action to recover damages for a civil injury. It is indeed a right dependent solely on the statute of the state; but when the act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we cannot see why the defendant may not be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here.

It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common law right. Wherever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.

The action in the present case is in the nature of trespass to the person, always held to be transitory, and the venue immaterial. The local court in New York and the circuit court of the United States for the northern district were competent to try such a case when the parties were properly before it. Mostyn v. Fabrigas, 1 Cowp., 161; Rafael v. Verelst, 2 W. Bl., 983, 1055; McKenna v. Fisk, 1 How., 241. We do not see how the fact that it was a statutory right can vary the principle. A party legally liable in New Jersey cannot escape that liability by going to New York. If the liability to pay money was fixed by the law of the state where the transaction occurred, is it to be said it can be enforced nowhere else because it depended upon statute law and not upon common law? It would be a very dangerous doctrine to establish, that in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and remedies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in no other state of the Union? The contrary has been held in many cases. See Ex parte Van Riper, 20 Wend. (N. Y.), 614;

Lowry v. Inman, 46 N. Y., 119; Pickering v. Fisk, 6 Vt., 102; Railroad v. Sprayberry, 8 Bax. (Tenn.), 341; Great Western Railway Co. v. Miller, 19 Mich., 305.

$582. Construction of a statute of New Jersey.

But it is said that, conceding that the statute of the state of New Jersey established the liability of the defendant and gave a remedy, the right of action is limited to a personal representative appointed in that state and amenable to its jurisdiction. The statute does not say this in terms. "Every such action shall be brought by and in the names of the personal representatives of such deceased person." It may be admitted that for the purpose of this case the words "personal representatives" mean the administrator.

The plaintiff is, then, the only personal representative of the deceased in existence, and the construction thus given the statute is, that such a suit shall not be brought by her. This is in direct contradiction of the words of the statute. The advocates of this view interpolate into the statute what is not there, by holding that the personal representative must be one residing in the state or appointed by its authority. The statute says the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, "if they reside in the state of New Jersey?" It is obvious that nothing in the language of the statute requires such a construction. Indeed, by inference, it is opposed to it. The first section makes the liability of the corporation or person absolute where the death arises from their negligence. Who shall say that it depends on the appointment of an administrator within the state?

The second section relates to the remedy, and declares who shall receive the damages when recovered. These are the widow and next of kin. Thus far the statute declares under what circumstances a defendant shall be liable for damages, and to whom they shall be paid. In this there is no ambiguity. But fearing that there might be a question as to the proper person to sue, the act removes any doubt by designating the personal representative. The plaintiff here is that representative. Why can she not sustain the action? Let it be remembered that this is not a case of an administrator, appointed in one state, suing in that character in the courts of another state, without any authority from the latter. It is the general rule that this cannot be done. The suit here was brought by the administratrix in a court of the state which had appointed her, and of course no such objection could be made.

§ 583. A suit may be brought in the United States circuit court by a New York administratrix upon a cause of action arising under a New Jersey statute. If, then, the defendant was liable to be sued in the courts of the state of New York on this cause of action, and the suit could only be brought by such personal representative of the deceased, and if the plaintiff is the personal representative, whom the courts of that state are bound to recognize, on what principle can her right to maintain the action be denied?

So far as any reason has been given for such a proposition, it seems to be this: that the foreign administrator is not responsible to the courts of New Jersey, and cannot be compelled to distribute the amount received in accordance with the New Jersey statute. But the courts of New York are as capable of enforcing the rights of the widow and next of kin as the courts of New Jersey. And as the court which renders the judgment for damages in favor of the administratrix can only do so by virtue of the New Jersey statute, so any court having

control of her can compel distribution of the amount received in the manner prescribed by that statute.

Again, it is said that, by virtue of her appointment in New York, the administratrix can only act upon or administer that which was of the estate of the deceased in his life-time. There can be no doubt that much that comes to the hands of administrators or executors must go directly to heirs or devisees, and is not subject to sale or distribution in any other mode, such as specific property devised to individuals, or the amount which by the legislation of most of the states is set apart to the family of the deceased, all of which can be enforced in the courts; and no reason is perceived why the specific direction of the law on this subject may not invest the administrator with the right to receive or recover by suit, and impose on him the duty of distributing under that law. There can be no doubt that an administrator, clothed with the apparent right to receive or recover by suit property or money, may be compelled to deliver or pay it over to some one who establishes a better right thereto, or that what he so recovers is held in trust for some one not claiming under him or under the will. And so here. The statute of New Jersey says the personal representative shall recover, and the recovery shall be for the benefit of the widow and next of kin. It would be a reproach to the laws of New York to say that when the money recovered in such an action as this came to the hands of the administratrix, her courts could not compel distribution as the law directs.

It is to be said, however, that a statute of New York, just like the New Jersey law, provides for bringing the action by the personal representative, and for distribution to the same parties, and that an administrator appointed under the law of that state would be held to have recovered to the same uses, and subject to the remedies in his fiduciary character which both statutes prescribe. § 584. contrary authorities.

We are aware that Woodward v. Michigan Southern & Northern Indiana Railroad Co., 10 Ohio St., 121, asserts a different doctrine, and that it has been followed by Richardson v. New York Central Railroad Co., 98 Mass., 85, and McCarthy v. Chicago, Rock Island & Pacific Railroad Co., 18 Kan., 46. The reasons which support that view we have endeavored to show are not sound. These cases are opposed by the latest decision on the subject in the court of appeals of New York, in the case of Leonard, Administrator, v. The Columbia Steam Navigation Co., not yet reported, but of which we have been furnished with a certified copy. The right to recover for an injury to the person, resulting in death, is of very recent origin, and depends wholly upon statutes of the different states. The questions growing out of these statutes are new, and many of them unsettled. Each state court will construe its own statute on the subject, and differences are to be expected. In the absence of any controlling authority or general concurrence of decision, this court must decide for itself the question now for the first time presented to it, and with every respect for the courts which have held otherwise, we think that sound principle clearly authorizes the administrator in cases like this to maintain the action. Judgment reversed, with directions to award a new trial.

220

RAILWAY COMPANY v. WHITTON.

(13 Wallace, 270-291. 1871.)

ERROR to U. S. Circuit Court, Eastern District of Wisconsin.

STATEMENT OF FACTS.- Mrs. Whitton was run over by a railway train in Wisconsin, and killed. Her husband, as her administrator in Wisconsin, sued the company in a state court under a statute of that state allowing damages limited to $5,000 to the surviving relatives of persons killed by negligence, etc. After the suit was brought the act of congress of March 2, 1867, was passed, and under it Whitton removed the cause into the court for the eastern district of Wisconsin, in which he recovered a judgment. The railroad company brought up the case by writ of error.

Opinion by MR. JUSTICE FIELD.

The jurisdiction of the action by the federal court is denied on three grounds: The character of the parties as supposed citizens of the same state; the limitation to the state court of the remedy given by the statute of Wisconsin; and the alleged invalidity of the act of congress of March 2, 1867, under which the removal from the state court was made.

§ 585. For the purposes of an action at law a corporation is a citizen of the state which created it.

First, as to the character of the parties. The plaintiff is a citizen of the state of Illinois, and the defendant is a corporation created under the laws of Wisconsin. Although a corporation, being an artificial body created by legislative power, is not a citizen within several provisions of the constitution, yet it has been held, and that must now be regarded as settled law, that, where rights of action are to be enforced, it will be considered as a citizen of the state where it was created, within the clause extending the judicial power of the United States to controversies between citizens of different states. Paul v. Virginia, 8 Wall., 177. The defendant, therefore, must be regarded for the purposes of this action as a citizen of Wisconsin. But it is said, and here the objection to the jurisdiction arises, that the defendant is also a corporation under the laws of Illinois, and, therefore, is also a citizen of the same state with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such, a citizen of Wisconsin by the laws of that state. It is not there a corporation or a citizen of any other state. Being there sued it can only be brought into court as a citizen of that state, whatever its status or citizenship may be elsewhere. Nor is there anything against this view, but, on the contrary, much to support it, in the case of The Ohio & Mississippi Railroad Company v. Wheeler, 1 Black, 286 (§§ 1351-52, infra). In that case the declaration averred that the plaintiffs were a corporation created by the laws of the states of Indiana and Ohio, and that the defendant was a citizen of Indiana, and the court, after referring to previous decisions, said that it must be regarded as settled that a suit by or against a corporation in its corporate name is a suit by or against citizens of the state which created it, and therefore that case must be treated as a suit in which citizens of Ohio and Indiana were joined as plaintiffs against a citizen of the latter state, and of course could not be maintained in a court of the United States where jurisdiction of the case depended upon the citizenship of the parties. The court also observed that though a corporation by the name and style of the plaintiffs in that case appeared to have been chartered by the states of Ohio and Indiana, clothed with the same capacities and powers, and

intended to accomplish the same objects, and was spoken of in the laws of the states as one corporate body, exercising the same powers and fulfilling the same duties in both states, yet it had no legal existence in either state except by the law of that state; that neither state could confer on it a corporate existence in the other nor add to or diminish the powers to be there exercised, and that though composed of and representing under the corporate name the same natural persons, its legal entity, which existed by force of law, could have no existence beyond the territory of the state or sovereignty which brought it into life and endowed it with its faculties and powers.

The correctness of this view is also confirmed by the recent decision of this court in the case of The Railroad Company v. Harris, 12 Wall., 65. In that case a Maryland railroad corporation was empowered by the legislature of Virginia to construct its road through that state, and by an act of congress to extend a lateral road into the District of Columbia. By the act of Virginia the company was granted the same rights and privileges in that state which it possessed in Maryland, and it was made subject to similar pains, penalties and obligations. By the act of congress the company was authorized to exercise in the District of Columbia the same powers, rights and privileges in the extension and construction of the road, as in the construction and extension of any railroad in Maryland, and was granted the same rights, benefits and immunities in the use of the road which were provided in its charter, except the right to construct from its road another lateral road. And this court held that these acts did not create a new corporation either in Virginia or the District of Columbia, but only enabled the Maryland corporation to exercise its faculties in that state and District. They did not alter the citizenship of the corporation in Maryland, but only enlarged the sphere of its operations and made it subject to suit in Virginia and in the District. The corporation, said the court, "cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly. For the purposes of federal jurisdiction it is regarded as if it were a citizen of the state where it was created, and no averment or proof as to the citizenship of its members elsewhere will be permitted."

§ 586. The federal courts have power to enforce a general right given by the statutes of a state, and their jurisdiction in such case is not subject to state limitations.

Second, as to the limitation to the state court of the remedy given by the statute of Wisconsin. That statute, after declaring a liability by a person or a corporation to an action for damages when death ensues from a wrongful act, neglect or default of such person or corporation, contains a proviso "that such action shall be brought for a death caused in this state, and in some court established by the constitution and laws of the same." This proviso is considered by the counsel of the defendant as in the nature of a condition, upon a compliance with which the remedy given by the statute can only be enforced. It is undoubtedly true that the right of action exists only in virtue of the statute, and only in cases where the death was caused within the state. The liability of the party, whether a natural or an artificial person, extends only to cases where, from certain causes, death ensues within the limits of the state. But when death does thus ensue from any of those causes the relatives of the deceased named in the statute can maintain an action for damages. The lia