Lord Dunedin :—

The appellants are a company working the tramways in the streets of the city of Vancouver. This they do as assignees of the Consolidated Railway Company incorporated by Chapter 55 of the Acts of British Columbia, 1896. The respondent is the administratrix of Vernon Aldrich, deceased, who was struck and killed by one of the appellants' cars on 7th October, 1911.

The respondent raised action on behalf of the father and mother of the deceased on 10th June, 1912, in virtue of the provisions of the Families Compensation Act, Chapter 82 of the Revised Statutes of British Columbia. In the statement of claim the plaintiff averred that the death of Vernon Aldrich was caused by the negligence of the servants of the defendants.

The defendants denied negligence and joined issue on the fact. They also pleaded that the action was barred, not having been commenced within six months of the death of the deceased. This plea they rested on the terms of Section 60 of the Consolidated Railway Act, which is in the following terms :-

"All actions or suits for indemnity for any damage or injury sustained by reason of the tramway or railway, or the works or operations of the company shall be commenced within six months next after the time when such supposed damage is sustained, or, if there is continuance of damage, within six months next after the doing or committing of such damage ceases, and not afterwards, and the defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act."

The case came before a jury. The learned Judge repelled the plea founded upon Section 60 and the jury found a verdict for the plaintiff and assessed damages at $ 3,000, which sum the Judge then directed should be paid, $ 2,000 to the father and $ 1,000 to the mother of the deceased man.

The defendants appealed to the Court of Appeal, repeating their plea founded on Section 60, and further contending that the verdict was contrary to evidence. The Court of Appeal affirmed the judgment of the Court below, but granted leave to appeal to this Board. The question of the verdict being contrary to the evidence was not argued before, and would not have been entertained by their Lordships. The whole question is, therefore, whether the action was barred as being raised too late.

To get the benefit of the limitation expressed in Section 60, the appellants must shew that the present suit is one for "indemnity for damages sustained by reason of the railway or the operations of the company." Indemnity obviously means indemnity to the plaintiff in the suit, in respect of wrong done to the plaintiff and damages sustained by him owing to the railway or the operations of the company. Their Lordships assume without deciding that the words "operations of the company" include negligent driving of a car.

The question therefore comes to turn on whether a suit raised in virtue of the provisions of the Families Compensation Act answers to the description above set forth.

The Families Compensation Act is for all practical purposes textually the same as the Act known as Lord Campbell's Act in the United Kingdom, of which Act it is indeed a copy. Now the character of the right given by Lord Campbell's Act has been the subject of much judicial decision. As early as 1852, in the case of Blake v. Midland Railway Company 18 Q. B. 93, Coleridge, J., giving the judgment of the Court, said :

"But it will be evident that this Act does not transfer this right of action (of the deceased) to his representative, but gives to the representative a totally new right of action, on different principles."

Then in the case of Pym v. Great Northern Railway Company 4 B and S. 396. Erle, C. J., said :

"The statute as appears to me gives to the personal representative a cause of action beyond that which the deceased would have if he had survived, and based on a different princip