Page:Federal Reporter, 1st Series, Volume 7.djvu/714

 702 FEDEBAIi BBPOBTER. �and does not continue any old right whioh the injured person had. �The argument in support of the demurrer assumes that the action which the personal representative brings is the same — to be measured by the same rule of damages — as if the deceased had commenced an action and had died during its continuance. It also assumes that there is such a thing as instantaneous death resulting from an injury to the person. The only case cited to sustain the point is Kearney v. Rail- road Co. 9 Cush. 108. That case was decided upon a statute of Massachusetts passed in 1842, as folio ws: �"The action of trespasa on the case for damage to the person shall hereafter survive, so that, in the event of the ueath of any person enti- t!ed to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the sam* man- ner as if he were living." �And the construction placed upon this act was that "the case contemplated by the statute must be of such a nature that the party injured must himself have, at some time, had a cause of action;" and because the injuved person was said to be instantly kUled, the court said he never had a cause of action to survive. But under the Nevada statute it is not indispensable to show that the person killed lived long enough to have a right of action accrue, admitting the Massachu- setts case to be sound. AU that is necessary is that the wrongful act shall be such as would, if death had not ensued, have entitled the party injured to sue. �The statute acts on the wrong-doer, making him liable for damages, "notwithstanding the death of the person injured." The action is given to the personal representative for the pur- pose, in part, of compensating the kindred named in the act, which is a wholly new and distinct ground from that which the injured party would have had, and cannot be said in any sense to survive. Th© English statute, upon which the stat- ute now being construed is drawn, is 9 & 10 Vict. c. 93, p. 693, passed in 1846. four years after the Massachusetts stat- ute. �In Blaice v. Railway Co, supra, the court of queen's bench. ��� �