
    BEACH a. THE BAY STATE COMPANY.
    
      Supreme Court, First District;
    
    
      General Term, Jan., 1860.
    Construction of Pleadings.—Statutory Cause of Action.— Act or Negligence in another State, causing Death.
    The provisions of the acts of 1847 and 1849 (Laws of 1847, 575; Laws of 1849, 388) —giving an action to the personal representatives of persons killed by the act or neglect of others—do not extend to the case of a death caused without this State.
    
    If place is material to be alleged, and the pleading is ambiguous as to the place, the presumption is against the pleader.
    Appeal from order overruling demurrer to complaint.
    This action was brought under the acts of 1847 and 1849, to recover damages resulting from the death of John C. Beach, caused by an explosion or escape of steam on board the defendants’ steamboat, the Empire State, while on her passage from Fall River to the city of New York, the deceased being a passenger on board of said boat.
    The complaint alleged that he was at the time a resident of the city of New York; that the defendant was a corporation of Massachusetts; that the deceased paid his fare and took passage at Fall Biver for New York; and that the explosion or escape of steam which caused the death, took place through the wrongful act, neglect, and default of the defendants and their agents and servants.
    The defendants demurred to the complaint, substantially upon the ground that it is not alleged in the complaint, nor does it appear therefrom, that the act or acts complained of occurred within the State of New York.
    
      The judge at special term, in deciding the demurrer, assumed that the death, and disaster occasioning it, did not take place within the State of ¡New York; he nevertheless held that the action was well brought, and overruled the demurrer. The case at special term is fully reported, 6 Ante, 415.
    From this judgment the defendants appealed.
    
      D. D. Lord and Daniel Lord, for the appellants.
    I. By the common law no right exists to recover for an injury causing death, in the name of the representatives. The right is the creature of statute, and to create it the Legislature must have had jurisdiction to create it, and also must have intended to exercise it in the case presented. The defendants deny both these propositions.
    II. The Legislature of ¡New York has no extra territorial jurisdiction to create, either rights or remedies from acts done abroad. 1. This is a very different question from that, whether a State court can try an injury, resting on common-law principles, committed extra territorially. 2. The Legislature cannot give to acts done without its territory any effect beyond what the common law gives them. 3. It could not give to an act done in Massachusetts, the character of a crime (see cases infra), nor a consequence by way of statutory damages, which the common law does not give. 4. ¡Nor damages for an act done there, when none are given by the common law; nor could it give the damages for such an act to other persons than to those to whom they are given by the common law. To do any of these things is to usurp a power of legislation, the ultimate act of sovereignty, with no sovereignty over the place or the party. (See on extra territorial inoperativeness of laws, Story on Conflict, &c., §§ 7, 8, 20, 21, 22, and its citations ; Sedgw. on Stat., 69, 70 ; Blanchard a. Russell, 13 Mass., 1; Commonwealth a. Clary, 8 Ib., 264; Scovile a. Canfield, 14 Johns., 338 ; Bank of Augusta a. Earle, 13 Pet., 519; the reasoning in People a. Adams, 3 Den., 190, and 1 Comst., 173 ; People a. Rathbun, 21 Wend., 509.)
    III. 1. The supposable exception of the operation of the statute of a State on the acts of its citizens transiently abroad, by reason of their allegiance, is inapplicable : for the defendants here were a Massachusetts person. (Covington Drawbridge Company a. Shipherd, 20 How. ( U. S.), 227, and cases there reviewed.) The vessel was a Massachusetts vessel. 2. The present is not the case of a right, under the general common law, occurred abroad and sought to be tried here, but is one where there was no right by the common law : and the whole question is on the effect of a statute to create a right without its jurisdiction.
    IV. To affirm that the Legislature of one State or country, in order to protect its citizens, could, if it meant so to do, legislate as to acts done without its limits, is without the precedent of any authority, and contrary to universally admitted first principles. 1. If such a right rests on the power to protect its citizens, it would warrant its exercise by giving criminal remedies as well as by enlarging civil remedies: but confessedly it does not. 2. Such a right might introduce new remedies into all the foreign navigation from abroad to this State. 3. Such a right would be, on the same principle, applicable to acts happening between Dover and Calais; for the action at common law, where a right of action subsists, is transitory. 4. It could give a civil remedy by act of parliament of England for libels published in New York, against subjects of England.
    V. It is erroneous to hold, because the action on a claim existing at the common law arising abroad is transitory, and the courts of all countries where the defendant may be found have a forensic jurisdiction to try it, that the legislative jurisdiction to create new rights is migratory and universal. Nor is the error remedied by holding that the statute, if remedial, could have extra territorial operation : its being remedial or penal is of no consequence unless there be legislative jurisdiction. The present judgment is without precedent. It is expressly contrary to Whitford a. The Panama Eailroad Company, in the Superior Court, 3 Bosw., 67.
    
    VI. But even supposing that the Legislature of New York could give a new right in respect of an extra territorial act—yet by a sound construction of the act of 1849, that act only applied to deaths within this State. 1. As statutes are to be presumed not retroactive unless made so by express terms, so they are to be presumed not to import extra territorial operation: but to import a reference to acts within its territory. Merely general terms do not import retroactive effect. (Sedgw. on Stat., 188 ; Moon a. Durdon, 2 Exch. R., 22 ; Tillman a. Lansing, 4 Johns., 45; Dash a. Van Kleeck, 7 Ib., 497; Johnson a. Burrill, 2 Hill, 238.) 2. The railways and rivers of this State afforded sufficient scope, motive, and operation for the statute, so that it is not necessary to suppose the intent of extra territorial legislation. 3. Although the act in question be remedial and penal both, yet as the new remedy against the owner, was accompanied by compensating penalties to protect him, the burden will not be extended by construction beyond the protection. 4. The neglects, &c., contemplated in the penal and remedial parts are the same neglects, &c. The two parts of the statute were not intended to apply to different subjects; and as the penal part is limited by the territorial jurisdiction, the remedial part is merely co-extensive. 5. The act of 1849 was in ease of the carrier, and a modification of the previous law in his favor. The intent should be carried out by the construction contended for by the defendants. 6. The principle of comity, by which the lex loci actus is applied, forbids the extra territorial effect of legislation : it rests on giving effect to the law of each country in other countries.
    
      A. Mann, Jr., for the respondents,
    in addition to the points made below (6 Ante, 415), argued the following:—XVI.' It cannot be that a foreign corporation can locate itself for the purpose of business in a State foreign to that of its creation, enjoying all the protection and advantages arising from that location, and owe no obedience to the laws of that State, and subject to no obligations in reciprocation of the advantages it enjoys. If the body of the corporation cannot be reached, its property within the territorial limits of the State, whose laws it has violated, can he reached by attachment or by an action at law, and to this extent, if to no other, it must be amenable to those laws, the same as a natural person, and in that way these corporations are subject to the laws and jurisdiction of the State.
    Although citizens or foreigners doing business in a State leave the State, their obligations to the laws of the State, as well as under their contracts made in the State still continue, and their property in the State is liable to their performance, or themselves to action, when returning to the jurisdiction. This is the principle which is involved in the jurisdiction, obtained by advertising absent debtors or contractors.
    XVII. If the Legislature can, according to the above principle, pass criminal laws necessary to the protection of its citizens and the preservation of the peace and prosperity of the State, which will reach parties, residents of the State going out of it, to commit an act which would contravene those laws, it may pass an act of a lesser character, like those on which this action is founded, for the recovery of damages for an injury in contravention of those laws, to be recovered of the defendant under the circumstances of this case. The Legislature of the State of New York has acted in pursuance of this principle, in the acts passed against duelling or sending of challenges, by residents of this State going out of the State for the purpose. (See 2 Rev. Stats., 4th ed., 843, 869.)
    XVIII. The defendant having a quasi residence within the State of New York, at the time of the disaster charged, it is liable to damages to the citizens of the State arising from the business which the defendant conducts within the State during that residence, although the immediate act causing the injury happened out of the State, but with which the defendant was legally connected. While doing business there, it acts in reference to those laws.
    XIX. The loss of maintenance and support on the part of the widow, the plaintiff, is certainly a pecuniary damage to the extent of losing the cost of that maintenance and support; and as to the other next of kin, the value of the talents, services, and support afforded them by deceased, is equally a pecuniary damage. (See Oldfield a. Harlem Railroad Company, 4 Kern., 310.)
    XX. The court having jurisdiction of the person, or of the defendant, could compel him or it to transfer land lying in another State. The defendant being bound by the quasi contract arising out of the acts of the Legislature, and doing business in the State under them, the court can compel it to respond in damages provided by the acts. (Baily a. Ryder, Ct. of Appeals, Dec., 1852.)
    XXI. It is undisputed, that the State may make laws binding the property within the State, of foreigners beyond it. This action is a means of obtaining that property of the defendant, which is within the State, if nothing more, for the purpose of answering the damages given by the statute. (Story's Confl. of Laws, 452, § 541, ed. 1834.)
    XXII. The necessities of the public general welfare, and the regards of civil commerce, have introduced exceptions to the rule, that laws made by a sovereign have no force or authority except within the limits of his dominions. (Story's Confl. of Laws, 8, §7; 1 Boullenoi’s Prin,. Gen., 4, 6.)
    XXV. Actions for torts, when arising out of matters of contract, as actions for negligence, are subject to all the incidents of actions ex-contractu,. In connection with the points as to personal actions, the following authorities may be consulted: Courts of common law have concurrent jurisdiction with Courts of Admiralty of marine torts, as in trespass for collision on the high seas. (Percival a. Hickey, 18 Johns., 257, per Spencer, Ch. J.) So for an assault and battery by and between British subjects. (Gardner a. Thomas, 14 Johns., 134.) The State courts have jurisdiction of personal wrongs committed by a superior upon an inferior while at sea and engaged in the public service. (Wilson a. McKenzie, 7 Hill, 95.)
    
      
       To the same effect is Vanderwerken a. N. Y. & New Haven E. E, Co. (6 Ante, 239). Compare Molony a. Dows (8 Ante, 316).
    
   By the Court.—Sutherland, J.

I. Ithink it is to be assumed, in deciding whether the demurrer is well taken, as was done by the judge at special term, that the explosion and death did not occur within the State of Hew York.

If the place is material, and the pleading is ambiguous as to the place, the presumption should be against the party whose pleading it is. (Cruger a. Hudson Riv. R. R. Co., 2 Kern., 201.)

It necessarily results from the independent sovereignty of different states or nations, that the laws of one state or nation can have no force or effect without its own territorial limits, and within the territory of another state or nation, without the consent of the latter. Sovereignty is exclusive and absolute, except so far as it may be qualified by treaty or consent. If the legislatures of two states or nations could pass laws for each other, to be enforced, proprio vigore, within the territorial limits of each other, both nations would instantly cease to be sovereign. The passage of laws is the highest act of sovereignty. Each independent nation or country has the same right to pass laws. It necessarily follows that the laws of a state or country “ can have no intrinsic force proprio vigore, except within the territorial limits and jurisdiction of that country.” (Story's Confl. of Laws, §§ 7, 8.)

In the United States, the sovereignty of the several States is modified by the constitution of the United States, adopted by them; but irrespective of the constitution of the United States, the several States are independent sovereignties with respect to each other and other countries, and the foregoing principle of the territorial limitation of legislative power or jurisdiction applies to them.

The well-known distinction between the lex loci contractus and the lex fori, and between transitory and local actions, taken and recognized in construing and enforcing laws, assumes and is founded on this state or national territorial legislative limitation. (4 Cow., 510, note)

Personal injuries or torts are transitory, et sequunter forum rei. (Rafael a. Develst, 2 W. Blackst., 1058; Mostyn a. Fabrigas, Cowp., 161-176.)

A party who has suffered a personal injury or tort in another country or state and comes here, brings with him his cause of action for the injury or tort, and if he finds the party who committed the injury or tort in such other country or state here, can sue him here ; but it is presumed that in ordinary cases he can do so only upon the ground that he brought his cause of action with him; that is, that the act or acts of the defendant, by which the injury or wrong was effected, were unlawful when and where committed; in other words, that the injury or tort complained of here, was an injury or tort by the law of the country or state when and where committed.

In such cases, the courts of one country or state give a remedy upon the principle of comity for personal injuries and wrongs suffered in another, but they must be injuries or wrongs by the law of the state or country in which they were suffered.

The common law gives a remedy for personal injuries or torts, whether direct or consequential. In actions brought here for injuries or torts committed in another country or state where the common law is presumed to prevail, the court here gives the common-law remedies for such injuries and torts, upon the preSumption that the common law does prevail in such other country or state, and, therefore, that the plaintiff had a right of action or remedy there, for the injury or tort committed there.

To apply this principle to this case: if the explosion took place in the State of Massachusetts, and John C. Beach, the deceased, had survived the injuries, and had brought his action here, against any of the defendants’ agents or servants, through whose default or neglect the explosion occurred, whom he could find here, he could have recovered here, upon the presumption that the common law does prevail in Massachusetts, and because the common law prevailing in Massachusetts he could have recovered there, had the action been brought there.

But John G. Beach did not survive the injuries, and this action is brought by his personal representative, under special acts of the Legislature of this State giving a right of action or remedy unknown to the common law, not for the injuries suffered by John C. Beach, but for the damages and pecuniary injuries resulting from his death suffered by his widow and next of kin— damages and injuries not the subject of judicial cognizance or of legal redress by the common law, and for which, therefore, it is to be presumed no action could be brought in Massachusetts.

It is quite immaterial whether those sections of the acts giving this right of action are penal or remedial.

The remedy, in fact, is an extraordinary one, unknown to the common law, created by the acts, for damages or injuries also created by the acts; for in a legal or judicial sense, damages or injuries for which there is no legal redress or remedy, are not damages or injuries. These acts which create the remedy for the benefit of the widow and next of kin, also create the wrong as to them.

Assuming that the wrongful act, neglect, or default, explosion and death, took place in Massachusetts, in the absence of any law of that State giving a remedy to the widow and next of kin or for their benefit, in a legal sense they cannot be said to have suffered any wrong or injury from the act, neglect, or default, &c., unless the acts of this State, under which this action is brought, extended into and were in force in Massachusetts—for act or acts complained of as tortious or wrongful must be tortious and wrongful when and where committed; at all events, neither the return of the agents or servants of the defendants through whose neglect or carelessness the explosion took place into this State, nor the voluntary appearance of the defendants in this action, would make the act or acts committed in Massachusetts originally tortious, or give the widow and next of kin of the deceased the benefit of the remedy provided for by the acts of 1847 and 1849.

The learned judge who decided this demurrer at special term commences his opinion by saying: “ It cannot* be denied that one state or nation has a right to give its citizens redress for any personal injury committed without as well as within its territorial limits, when it obtains jurisdiction over the wrong-doer. This has always been recognized in the common law. Many, if not most of the actions instituted in our courts of justice, are transitory, and not local; and if the cause upon which any one of them is founded arose in Japan, it would be just as tenable as if it arose in the State of Hew York.”

I think the question raised by the demurrer in this case is not a question of legislative power, but a question of interpretation.

It is not a question as to the power of the Legislature which passed the acts of 1847 and 1849, but as to the intent of the Legislature in passing them. The question is not, whether the court has jurisdiction of the parties and of the cause of action, assuming the action to be for an injury or tort committed in Massachusetts, or without the political jurisdiction of the State; but the question is, whether the act or acts complained of, which caused the death of John C. Beach, and thus consequentially the alleged damages for which the action is brought, were tortious by these acts of the Legislature of this State, and did or could, in a legal sense, cause any damage or injury to the widow and next of kin, for which an action can be brought under these acts of the Legislature of this State, assuming that the act or acts, negligence or default, complained of as causing the death of John C. Beach, were committed or occurred in Massachusetts, or out of this State, and within the jurisdiction of another State. In other words, I think the question raised by the demurrer is, whether it appears from the complaint that the plaintiff has a cause of action under the acts of 1847 and 1849 ; not whether the Legislature of this State could have given him one; or, if he has one, whether the court has jurisdiction of it.

Row it is very clear that the general proposition stated in the opinion of the learned judge at special term, that a state or nation has a right to give its citizens redress for injuries committed without as well as within its territorial jurisdiction, where it obtains jurisdiction over the wrong-doer, however true, has little or no bearing on the question in this case, viewing that question as one merely of the interpretation of the acts of 1847 andl849. Indeed, the learned judge, by stating that proposition, and the other immediately following it as to transitory actions, as bearing on the question in this case, would appear at the very commencement of his opinion to have assumed that the act or acts, negligence or default, complained of as causing consequentially the injury and damages to the widow and next of kin, for which the action is brought, were tortious and did cause such injury and damages, under and by force of these special acts of the Legislature of Rew York; the very question in the case being, as I have before stated, whether the act or acts, &c., having been committed out of this State and within another State, were or could be tortious under and by force of these statutes of Rew York, or did or could cause any injury or damage to the widow and next of kin, for which a remedy was intended to be given by these statutes.

“ Every nation has an exclusive right to regulate persons and things within its own territory.” (Story's Confl. of Laws, § 22.)

Irrespective of written constitutions, and of limitations which may be implied from the formation and frame of the government, the legislature of a state may be said to have sovereign power over persons and things within its territory. It would have the power of preventing foreigners who had committed certain acts in their own country from coming into the state. It would have power to prevent citizens of the state, who had committed certain prohibited acts in another country from returning to the state.

If the Legislature of this State should do so extraordinary a thing as to pass a law giving the personal representatives of an Englishman or of a Frenchman, who had been killed in a duel in his own country, a right of action here against the party killing him, for damages for the benefit of the widow and next of kin of the deceased, such law could of course only be enforced against the person or property of the person committing the act, if he should happen to come into the State or have property here; but if the party committing the act should choose to come into this State, and should be sued under the act, it would be difficult to say that the case would necessarily present a question of jurisdiction for the court.

Laws of this description, undertaking in a certain way to regulate the conduct of foreigners in their own country, under the penalty of being enforced on their coming into the country passing the laws, might present questions of war, but could not very well present questions of jurisdiction.

A nation may undertake to regulate by law the conduct of its citizens while abroad in another country, to be enforced on their return to their own country, but such laws are really consistent with the almost self-evident proposition, that the laws of one nation or state can have no force in the territory of another, without the consent of the latter. As a state or nation “has an exclusive right to regulate persons and things within its own territory” only, it is to be presumed, whatever power it may have to regulate the property and conduct of its citizens in the territory of another state or nation with the consent of the latter, or to be enforced only on persons and property within its own jurisdiction, that its laws are and were intended to be regulations for persons and things within its own territory only.

There is nothing in these acts of 1847 and 1849 which shows that they were intended to protect the lives of its citizens while out of the State—nothing to show that they were intended to extend to act or acts, neglects or defaults, committed or suffered in another State.

It must be presumed, I think, as the result of the general principles of the territorial limit of political jurisdiction, and of the force of laws before adverted to, that these statutes were intended to regulate the conduct of corporations, their agents, engineers, &c., and of other persons, while operating or being in this State only.

If a citizen of this State leaves it, and goes into another State, he is left to the protection of the law of the latter State.

One section of the law of 1849 is highly penal.

For the same wrongful act, neglect or default, for which the statutes give the civil remedy to the personal representatives of the deceased for the benefit of his widow and next of kin, the statute of 1859 renders the party who commits the act, &c., liable to indictment and imprisonment in a State prison.

Penal actions and proceeding are strictly local.

Can it be presumed, that the Legislature intended, for the purposes of the civil remedy, to include act or acts, neglects or defaults, not intended to be the subjects of the criminal proceeding. -

Upon the whole it is quite clear to me, that it was not intended by these statutes to make the act or acts, neglect or default, complained of in this case, which it must be assumed occurred out of this State and within the jurisdiction of another State, the subject of the civil remedy given by the statutes ; and that therefore the complaint in this case does not show any cause of action under these statutes; and that the judgment at special term should be reversed ; and that the defendant should have judgment on the demurrer. 
      
       Present, Roosevelt, Clerke, and Sutherland, JJ.
     