Page:Federal Reporter, 1st Series, Volume 7.djvu/715

 KOACH. V. IMPERIAL MINING CO. 703 �in fixmg a measure of damage?, ref used to allow anything beyond the peeuniary loss to the family of the deceased, say- ing, in answer to the argument that. the party injured, iiE he had recoyered, would have been entitled to a solatium, a,na therefore his representative shall be so on his death, "it wiil be evident that this act does nottransfer this right of action to his representative, but gives to the representative a totally new right of action on different principles." �80, in New York, construing a statute passed in 1847 and framed upon this Bnglish statute, in the case of Saffard V. Drew, supra, the court said "the statute, it is not to be contested, creates a new action." The title of the English act is "An act for compensating the families of persons killed by accidents," and that of New York, Illinois, California, Michigan, and Nevada is "An act requiring compensation for causing death by wrongful act, [in this state, acts,] neg- lect, or default." The first section of all is identical with the first section of the Bnglish act after the preamble, with one immaterial exception. And it has been uniformly held that these statutes created a new right, and introduced a new ele- ment of damages; the new right being the right to sue for dam- ages for an act whioh caused death, and the new principle of damage being the peeuniary loss to the kindred resulting therefrom. See the cases cited above. If the wrongful act is one for which the deceased, had he lived, would have had a right of action, then the person doing the act is liable to an action by the personal representative, in the language of the act, "notwithstanding the death of the person injured." If the intention had been to give the -right of action, with Bome limitation in respect to the time within which death must resuit, the legislature would have so expressed it. But the main qbject being to secure compensation to the kindred, it, as justly observed by cpunsel.wasas much requiredin the case of a sudden as of a lingering death; when the death is the immediate as when it is not the immediate resuit of the injuries. I cannot discover, in the language of the act, any intention to limit the recovery to the one case rather than the other. The right of action appears to me to be given in such ��� �