John Null was struck by a train of the defendant company at Delair, New Jersey, on December 4, 1923, and died as a result of his injuries. Suit was begun on March 3, 1924, by Ward Smith, administrator of the estate of John Null, deceased, and a statement of claim filed by said plaintiff April 8, 1924; in it the plaintiff averred that letters of administration had been granted to him by the Register of Wills of Philadelphia County, appointing him administrator of the estate of John Null, deceased, and that Null was killed as the result of the accident at Delair, New Jersey, and specifying the defendant’s acts of negligence complained of.
*127Of course, the plaintiff as administrator of the decedent’s estate had no cause of action under the laws either of New Jersey or of Pennsylvania, because even in the latter state the action should have been brought by the widow.
On December 2, 1925, counsel for the parties entered into a written stipulation, whereby it was agreed that the plaintiff, Ward Smith, administrator of the estate of John Null, deceased, should “withdraw” from the case, and that Ward Smith, administrator ad prosequendam, should be substituted in his place; and it was further agreed that Ward Smith, administrator ad prosequendam by certification of the Surrogate of the County of Camden, New Jersey, under date of April 20,1925, should be substituted for the plaintiff, Ward Smith, administrator of the estate of John Null, deceased, in the statement of claim theretofore filed in the case as above stated. By the recent ruling of the Supreme Court in the case of Rosenzweig v. Heller, 302 Pa. 279, the statute of limitations had expired at that time, since under that authority the Pennsylvania limitation of one year and not the New Jersey limitation of two years prevailed, but this is immaterial, since counsel for the defendant agreed to the substitution, and, therefore, the statement of claim became duly amended accordingly.
Nothing further apparently was done for a period of nearly five years. On March 20, 1930, the case came up for trial, and, it appearing that the statement of claim as it then stood did not set forth any of the New Jersey statutes showing a cause of action in the plaintiff, Ward Smith, administrator ad prosequendam, nor establishing a right of action in New Jersey for negligence resulting in death, a juror was withdrawn in order to enable the plaintiff to apply for leave to amend the statement of claim. A rule was thereupon taken to show cause why the plaintiff should not be allowed to amend by setting forth the New Jersey statutes allowing a recovery in case of death by negligence, providing that the action should be brought by an administrator ad prosequendam, and containing provisions in regard to what constituted negligence and contributory negligence in such cases. The court discharged the rule to amend. The case then came up again for trial by jury, and when an offer was made to give in evidence the New Jersey statutes the offer was overruled on the ground that they were not pleaded; as a result of which, of course, the plaintiff could not make out a case and a nonsuit was entered, which the court in bane refused to take off.
The question in the case is really as to whether the court was right in overruling the proposed amendments to the statement of claim, because the non-suit followed inevitably upon that ruling.
It is settled beyond the peradventure of a doubt that where an action is brought in a state where the injury did not occur, the plaintiff must allege and prove the existence of a statute of the state where the injury occurred permitting such an action, and the authority and qualification of the plaintiff to sue in the capacity declared upon must be shown in the statement of claim: 17 Corpus Juris, 1283, 1289, and numerous cases there cited. This was directly held in our own state in Hall v. West Jersey & Seashore R. R. Co., 241 Pa. 399. The reason is that at common law no right of action existed for an injury resulting in death, and in the absence of a statute pleaded in the statement of claim it would be presumed that the common law of the state where the accident occurred remained in force as governing the situation, and that that common law was the same as that of the forum where the case was being tried.
We understand that counsel for the plaintiff concedes that no recovery can be had if the statutes of New Jersey are not pleaded and proved. His con*128tention is, however, that, even though the statute of limitations had expired, the court should have allowed him to amend his statement of claim by setting forth the New Jersey statutes. In the opinion of the court, however, to have allowed such amendments would have been to permit a change in the cause of action after the expiration of the statute of limitations, because it is decisively settled that where recovery is sought under the common law an attempt to change the action to one founded on a statute amounts to a change in the cause of action: Allen v. Tuscarora Valley R. R. Co., 229 Pa. 97, 102. In the present case the statement of claim showed no right of action in the plaintiff at all, and, therefore, an amendment which results in showing such a right of action must, by the laws of logic, amount to a change in the cause of action.
Counsel for plaintiff argues that after the new plaintiff, the administrator ad prosequendum, was substituted for the original one, he should have been entitled to a reasonable time in which to file a statement of claim, and that even if several years elapsed, the case not having been nol. prossed, he could now file such a statement in proper form. In other words, he contends that his present attempt is really to file a new statement of claim and not to amend the existing statement of the original plaintiff. It seems sufficient to say, in answer to this ingenious argument, that the agreement of counsel of December 2, 1925, was not merely to substitute a new plaintiff, but, as already pointed out, to substitute the name of the new plaintiff for that of the original plaintiff in the statement of claim as filed. The new plaintiff thus adopted as his own the original statement of claim, with the substitution therein of his name as the new plaintiff. The present plaintiff, therefore, cannot contend that he has never filed any statement of claim; indeed, that he has recognized the contrary is shown by the fact that his motion was to amend the existing statement of claim and not to be allowed to file a new one.
Counsel for plaintiff contends that when counsel for the defendant agreed to allow him to change the name of the plaintiff, this permission carried with it an implied agreement on the part of the defendant to permit further amendments to be made, so as to show under what right the new plaintiff was claiming. The court, however, cannot see any ground for this contention. Counsel for the defendant agreed to the amendment which the plaintiff desired to make, and, if the plaintiff required still further amendments to make out a valid case in his pleadings, it was for him to secure the same either by further agreement between counsel or by application to the court (subject, of eoui’se, to the statute of limitations). We are at a loss to understand how an agreement on the part of the defendant to permit certain amendments impliedly carried with it an agreement to permit such further amendments not then specified as might subsequently be found to be necessary by the plaintiff in order properly to make out a case in his pleadings.
As far as such of the proposed amendments are concerned as relate to the question of negligence and contributory negligence, it is unnecessary definitely to determine whether such amendments should be permitted, although the court is of opinion that it would not be necessary to set forth in a statement of claim statutes which bear on the question of the plaintiff’s contributory negligence. The court is, however, clearly of opinion that this action caixnot be maintained under a statement of claim which does not set forth the New Jersey statutes giving a right of action in a case of death caused by negligence, and providing in whom such right of action exists and by whom the action must be brought; and the court is further of opinion that, since the statute of limitations has long since expired, to permit now an amend*129ment setting forth such statutes would be to permit a change in the cause of action; and, further, that there was nothing in the agreement between counsel of December 2, 1925, which would enable the plaintiff to escape from the existing situation.
For these reasons, the court discharges the rule to amend the statement of claim and overrules the motion to take off the nonsuit which followed from that ruling.