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for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows: First-If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then equally to each, the grandchild or children taking by right of representation; if there be no child or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and, provided further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named." (Comp. Laws, 3984.)

Trial was had by jury and a judgment rendered in favor of plaintiff for $10,000 damages. From the judgment and an order denying defendant's motion for a new trial, defendant appeals.

1. Counsel for respondent duly noticed a motion to dismiss the appeal upon the ground that it affirmatively appears from the record that no notice of appeal was ever given as required by law, and, further, that no undertaking on appeal has been executed by appellant. In this case the original papers were certified to this court pursuant to the provisions of section 3862 of the Compiled Laws, and it appears that at the time the clerk of the court below made such certificate the notice and undertaking on appeal had become misplaced, and were not certified with the other papers. Prior to the argument in this court the lost papers were found, certified to by the clerk, and filed in this court and cause. Also, prior to the argument, appellant's counsel moved that the record on appeal be amended or corrected by adding thereto the notice and undertaking on appeal. The motion was sub

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mitted, and in the meantime the entire record was returned to the clerk of the court below, that his certificate thereto might be amended so that the same might conform to the requirements of the statute and the same was so amended. Rule 7 of this court provides: "For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an order that the proper clerk certify to the whole or part of the record, as may be required, or may produce the same, duly certified, without such order. If the attorney of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion, except when a certified copy is produced at the time, must be accompanied by an affidavit showing the existence of the error or defect alleged." We think there was a substantial compliance with the provisions of this rule, and that it is a proper case for the permission of the amendment of the record as requested, and the same is allowed, and the motion to dismiss is denied.

2. It is very earnestly contended by appellant's counsel that the courts of this state have no jurisdiction of this cause, for the reason that the death of deceased was occasioned and occurred in the State of California, and that, "owing to the peculiar policy of the State of Nevada with reference to actions of this kind, its courts will not, through so-called comity, take jurisdiction of this cause." At common law an action for damages resultant from death by wrongful act could not be maintained. The first legislation in English-speaking countries permitting an action of this character was by the British Parliament in 1846, which passed what has since been known as "Lord Campbell's Act." Similar statutes have since been passed in most, if not all, of the states of this country. While these statutes differ somewhat in their terms, their general purpose was substantially the same.

A variety of decisions may be found upon the question whether the courts of one state will assume jurisdiction of an action brought therein for damages for a death occasioned in another state. A number of early decisions held

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that such jurisdiction did not exist or would not be assumed unless the statutes of both states were essentially the same. What is now regarded as the leading case on questions of this kind is Dennick v. Railroad Company, 103 U. S. 11, 26 L. Ed. 439. In that case action was brought in the state courts of New York for a death occasioned in New Jersey. The case was removed to the Circuit Court of the United States, which court held that the plaintiff could not under the special statute of New Jersey recover in the action. Upon appeal to the Supreme Court of the United States the decision was reversed, the court, by Justice Miller, saying: "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. Whenever, 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

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v. Fisk, 1 How. 241, 11 L. Ed. 117.) 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."

Both the early and the modern views of the courts generally are succinctly stated in the comparatively modern work of Minor on Conflict of Laws (1901). The author says: "Section 200. Death by Wrongful Act-Increasing Liberality of the Courts. In the cases on this subject two main questions were first presented. If a tortious death is actionable by the lex fori only, will that statute govern? If actionable by the lex delicti, will that statute control? The first question was at once decided in the negative, and the correctness of the ruling cannot be questioned. It is with regard to the second question that the greatest conflict of opinion has occurred. The view first advanced was that, although the lex delicti made the tortious death actionable, it would be of no avail upon an action brought in another state, even though the death was made actionable by the lex fori also, because such statutes were to be regarded as penal, or at least as having no exterritorial force. As more liberal ideas advanced, the next step taken by the courts was to recognize the statutes as remedial, not penal, and to permit actions to be brought in one state for a tortious death resulting in another state and actionable there, provided there was a statute substantially similar in the state of the forum. But if there were any very marked dissimilarities between the statutes of the two states, this was still taken to indicate that the enforcement of the lex delicti was contrary to the policy of the forum, and the right to sue there would be denied. The present tendency of the more recent decisions

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is to advance still further towards liberality and to throw open the courts to litigants whose cause of action has arisen in other states and under the laws thereof, even though not actionable at common law or not actionable if it had arisen in the forum, provided the enforcement of the lex delicti would not seriously contravene the established policy of the forum. The presumption is in favor of the right to sue, and the burden rests upon the party objecting to show that the enforcement of the 'proper law' would be inconsistent with the domestic policy."

In support of the last paragraph quoted the author cites the following authorities: Stewart v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Texas R. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Huntington v. Attrill, 146 U. S. 657, 670, 13 Sup. Ct. 224, 36 L. Ed. 1123; Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Law v. Railroad Co. (C. C.), 91 Fed. 817, 819; Higgins v. Railroad Co., 155 Mass. 176, 29 N. E. 535, 536, 31 Am. St. Rep. 544; Nelson v. Railroad Co., 88 Va. 971, 14 S. E. 839, 15 L. R. A. 583; Herrick v. Railroad Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, 773. To these we add the following: Wooden v. Western New York R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Weaver v. B. & 0. R. R. Co., 21 D. C. 499; McLeod v. Railroad Company, 58 Vt. 727, 6 Atl. 648; Johnson v. Railway Co., 91 Iowa, 248, 59 N. W. 66; St. Louis Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65; 13 Cyc. 313, et seq.

The right to bring such an action in a foreign jurisdiction does not rest, as some of the decisions seem to put it, upon principles of comity, but rather because "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." Because the cause of action is in its nature transitory, courts of other jurisdictions will enforce such rights growing out of the laws of a foreign state, unless it can be said that such laws are contrary to the public policy of the state of the forum. As the common law did not recognize this cause of action, it may be said that the public policy of a state in this regard only goes to the extent that it by