Imágenes de páginas

cated, so as to show on their face the official' this bad been the uniform practice. "as far character of the officer, as well as his authority back as living memory could trace it.". The to administer oaibs.

same practice seems to bave obtained in the Io eacb of the present cases the affidavit was American courts. United States v. Libby, 1 eword to in Pennsylvania before a notary pub Woodb. & M. 221; Denmend v. Maack, 2 Mc hic of ibat Siate, wbo authenticated it by sign- Arib. 472; Tucker v. Ludd, 4 Cow. 47; Conolly ing the jurat, and affixing bis notarial seal. If, v. Riley, 25 Md. 402. instead of being afliduvits, these bad been cer. This practice bas also long prevailed in this tificales of protest or autbentications of similar Stale, especially in the probate courts and in the con mercial documents, it is elementary law proof of cluims in insolvency proceedings. It that the potary's seal would prove itself, with. is true, as counsel suggests, that tbese are rules out any further proof of bis official cbaracier of practice as to which the counts are to some or of bis authority to do the act. A public extent a law unto themselves; but the fact is Dotary is considered, not merely an oflices of important, and in point, as a recognition, not the country where be is admitted or appointed, only of the regularity of alidavits sworn to but as a kind of international officer, whose outside the Siaie, but also of the general power officiul acts, performed in the State for wbich of potaries to adninister onths without proof be is appointed, are recognized as au boritative of statutory authority to do so. As a matter tt- woeld over. Defendant's counsel concedes of fact, in every Suate and Territory in the tbathis is true as to all bis acts in the way of Uniod notaries have power to adıninister oaths, the authentication of what he terms commer. and for tbe last forty years allidavits sworn to cial doruments, but insists that, ontside of such before a notary in any State of the Union, and maiters, a potary bas po power, in the absence autbenticated by bis notarial seal, bave been of stai utory authority, io administer oaths. admissible in all the federal courts, without Alt:cugb ibis ie sometimes stated in the books any proof of their authority to administer as being th» law, yet its correctness may well onths. It is true that perhaps in every Siate be doubted.

the powers of polaries, including that of ad. Tże powers of a notary, which is a very an- ministering oalbs, bave been regulated by ciedt ofte, are largely founded on customary statutes, which, however, are largely declaralaw. The English polaries bave always con- tory in ibeir nature. But whether this ausidered themselves authorized to administer thority be of statutory origin, or founded on oaths and wbatever chance for doubt about it customary law, tbe recognition of its existthere might have been was set at rest by the ence has become so general, if not universal, Act of 5 and 6 Wm. IV., chap. 62, § 15; Brooke, that tbere is now no good reason why it should Notaries, 20.

not be judicially recognized as one of tbe gen. Affidavils taken before notaries in foreign eral powers of notaries, and affidavits authen. countries bave uniformly been received by the ticated by seals of noturies of other States courts of England in judicial proceedings with placed ou precisely the same footing as their out any other proof of their otlicial character certificates of protest or authentications of soor their authority to administer oatbs tbad their called commercial documents. Some other notarial seals. Omtaly v. Nevell, 8 Fast, 364; objections are ruised 10 these aflidavits, but none Walrond v. Van Moses, 8 Mod. 322; llaggilt v. of them are, in our judgment, substantial. Inilf, 5 De G. M. & G. 910; Cole v. Sluerard, 11 The order appealed from is, in euch cuse, af. Exch, 482.

firmed. It was said in Omealy v. Newell, supra, that


Mary J. MOORE et al.

Jobo E SANFORD et al.

(.... Mass.....)

by such Act, estopped from instituting proceed. ings to dispute the validity of the taking and test the constitutionality of the Act, at least if they have not voluntarily proceeded to judgment upon

their petition. 2. Although the determination of the

Legislature is not conclusive that a pur. pose for which it directs property to be taken is a public use, yet it is conclusive, if the use is public, that a necessity exists which requires the property to be taken.

1. The owners of lands taken under the provisions o? chap. 290, Acts 1884, autborizin.. the taking of certain lands for the use of che Commonwealth, are not, by filing a petitios for damages for such taking as prescribed

NOTE--Eminent domain; exercise of right a political, , there is an attempt to procure property for a priruit a judicial, question.

vate use or to accomplish au end not public in its It is for the Legislature to determine wnat ob- character. Central R. Co. v. Pennsylvania R. Co. jects are of such public importance as to justify the 31 N.J. Eq. 475; Pittsburgh v. Scott, 1 Pa. 309; Baltiexercise of the right of eminent domain. Mims v. more & 0. R. Co. v. Pittsburgh, W. & K. R, Co. 17 Macon & W.R. Co. 3 Ga. 333.

W. Va. 812; Varner v. Martin, 21 W. Va. 534. The property or policy of the condemnation of So the public necessity which exists for the use private property for a public use is a legislative, of the property and the extent to which the power and not a judicial, question; and courts will not in- should be exercised is a legislative question. Sadler terfere to declare the Act void unless it is plain that'v. Langham, 34 Ala. 31; Parbam v. Decatur Co 8. The reclamation of flats situated upon Gray v. Bartlett, 20 Pick. 188; Pitkin v.

Boston Harbor and substantially useless in their Springfield, 112 Mass. 509. original condition, for the avowed purpose of im

The taking was for filling and improvement proving the harbor and of providing better and of these flats as a material benefit to the Harbor more complete accommodations for the railroad of Boston, and an increase of its capacity, and and commercial interests of the City of Boston, by filling such flats with solid earth, is a matter of an accommodation to its coinmercial and railBuch public benefit that the flats may be taken

road enterprises. These are public uses, and the Commonwealth for such purpose under the the question of necessity belongs exclusively power of eminent domain, notwithstanding a pos- to the Legislature, and is determined by its Bible pecuniary bevetit to the Commonwealth may Act. be contemplated by the sale of the flats wben Talhot v. Hudson, 16 Gray, 417; Bancroft v. filled. Hence chap. 200, Acts 1884, which provides Camiridge, 126 Mass. 438. for such taking, is not unconstitutional as au. The Commonwealth can appropriate land, thor.zing the taking of land for a use not public. wben compensation therefor is provided, in

order to improve the harbor of its most impor. (February 28, 1890.)

tant port, and to give better railroad facilities

to its capital city. ON reservation by the Supreme Judicial Boston & R. Mill-Dam. Corp. v. Neuman,

Court for Suffolk County (Kpowlton, J.) 12 Pick. 467. for the consideration of the full court, upon bill, answer, replication and agreed facts, of Devens, J., delivered the opinion of the a suit brought to test the validity of an attempt- court: ed taking of plaintiff's property under an al- The first question presented by be report is leged exercise of the rigbt of eminent domain. whether the plaintiffs, by filing their petition Bill dismissed.

under chap. 290 of the Act of 1884, for the The case sufficiently appears in the opinion. damages sustained by the taking of their lands

Messrs. Charles T. Gallagher and Hol. under the authority given by that Act, have lis R. Bailey, for plaintiffs:

admitted the validity of the taking, and thus The taking was unconstitutional, for the waived any right by a proceeding such as tbat reason that ibe purpose for which the land was adopted in the case at bar, to dispute the validtaken was not a public use.

ity of the taking and the constitutionality of Talbot v. Hudson, 16 Gray, 417; Re Eureka the Act assuming to autborize it. Basin W. & Mfg. Co. 96 N. Y. 42, 48. See This cause does not belong to that class of Lewis, Em. Dom. § 205.

cases where the selection of one remedy necesIf a private use is combined with a public use sarily implies that any other remedy or any in such a way that the two cannot be sepa- ground therefor is waived. It certainly would rated, the whole act of taking is invalid. be unjust if a party who reasonably deemed

Lewis, Em. Dom. $ 206; Atty-Gen. v. Eau that a statute by authority of which ibis propClaire, 37 Wis. 400; Bader v. Langham, 34 erty was taken, was unconstitutional, should Ala. 311; Harding v. Gooulett, 8 Yerg. (Tenn.) be compelled to elect whether be would seek 41.

for damages under the Act, and thus formally Plaintiffs have not lost their rigbt to dispute admit ibai bis property was lawfully taken, or the validity of this so-called taking of their abandon any claim therefor and rely solely on land. They gave seasonable potice of their in his remedy for an unlawful taking. As in Acts tention to test the validity of the taking, and of the nature of that which we are considering, brought this suit as soon after as they reasona- the time within which damages may be applied bly could, under all the circumstances. for is usually limited, it would be quite prob.

Warren v. Spencer Water Co. 3 New Eng. able, before a decision could finally be reached Rep. 111, 143 Mass. 14.

as to the validity of the taking, the time within Mr. Harvey N. Shepard, for defend- which he could apply for damages would have ants:

expired; and if such taking were beld valid, he Petitioners have stood by and allowed the would thus be deprived of any remedy for the board of harbor and land commissioners, on value of his property. His only safe course bebalf of the Commonwealth, to expend money would be to file a petition for bis damages unupon said lands, and otherwise improve the der the Act while he proceeded by other means same, without the least objection or protest on to test its constitutionality. If in the latter their part. Under these circumstances, the proceeding it was beld ibat tbe taking was petitioners bave waived any rigbt to question valid, be could then proceed under his petition the validity of the said taking, and this court for damages. The plaintiffs were entitled to is not now called upon to consider, upon this have the question of the constitutionaliiy of application by them, the constitutionality of the Act determined, and under their petition the Act.

for damages they were, by necessary inference,

Just ces, 9 Ga. 341; Sherman v. Buick, 32 Cal. 255; The question of necessity or propriety may, how-
Contra Costa C. M. R. Co. v. Moss, 23 Cal. 323; Napa ever, be delegated to boards of commissioners or to
Valley R. Co. v. Napa Co. 30 Cal. 4:35; Indianapolis the courts; but in the absence of such delegation
Water Works Co. v. Burkhart, 41 Ind. 364; Challiss the legislative determination is conclusive. Lecoul
V. Atchison, T. & S. F. R. Co. 16 Kan. 117; Tracy v. r. Police Jury, 20 La. Ann. 308; Powers' App. 29
Elizabethtown, L. & B. S. R. Co. 80 Ky. 259; North Mich. 504.
Missouri R. Co. v. Gott, 25 Mo, 510; Hingham & Q. See generally, as to the exercise of the power
Bridge & Turnp. Corp. v. Norfolk Co, 6 Allen, 353; of eminent domain, notes to Pittsburg, W. & K.
Bonaparte v. Camilen & A. R. Co. Buldw. 203; Con- R. Co. v. Benwood Iron Works (W. Va.) 2 L. R.
cord R. Co. v. Greeley, 17 N. H. 47: Re Union Ferry A. 680, and Barre R. CO. V. Montpelier & W.R. Co.
(0.99 N. Y. 139; Smith v. Gould, 59 Wis. 631.

(Vt.) 4 L. R. A, 786,

compelled, in that proceeding, to admit that it ity, and it must be so regarded, unless it is was constitutional. Pithin v. Springfield, 112 sbown to be otherwise by those who assail its Mass. 509.

constitutionality. Opinions of Justices, 8 Gray, But the mere fact that they filed a petition 21; Wellington, Petitioner, 16 Pick. 96; Talbot for the purpose of saving their rights to dam- v. Iludson, 16 Gray, 417. ages if their view of the constitutionality of the The purposes of the Act as declared therein, Act proved erroneous ought not to prevent its general structure, the nature of its provisthem from baving that question settled in an ions, its probable operation and effect, are all otber proceeding to which the inquiry was ap- to be considered in determining whether it is a propriate. Perbaps, if they bau voluntarily lawful exercise of legislative power. proceeded to judgment in their petition,--for If we examine the Act of 1884, we find that ibe plaintiffs ought not to be allowed to experi. while it was contemplated that the flats owned ment in order to ascertain wbat damages ihey by the Commonwealıb, when filled, would be might obtain before testing the constitusional. sold, and that a possible pecuniary benefit ity of the Act, --certainly if they bad collected would accrue to the Commonwealth thereby, the damages wbich bad been awarded under yet ibat the right of eminent domain wbich such a petition, it would be held that they had was to be exercised by taking certain flats tipally elected this as their remedy, and that owned by others without wbich the reclamathey could pot afterwards test the constitution. tion of flats could not be effected, was for the ality of the Act to which they bad thus given avowed purpose of improving the Harbor of full assent. But the same effect should not be Boston, and also of providing better and more given to a petition filed only as a prudent pre complete accommodations for the railroad and caution to guard their rigtits in a contingency commercial interests of the city by the slid that might ibereafter arise.

land which would take the place of the tiats In the case at bar it appears that the plain. over which the tide ebbed and Howed. tiffs, living at a distance from the Common. The Act of 1884 declares that "for the pur. wealth, knew of the taking only toward the poses of the reclamat on of the Commonweal. b's expiration of the year; that they filed their pe- flats at South Bosion, and the improvement of tition burriedly in order to proiect such rights Boston Harbor, contemplated and authorized as they might bave. While tbis took place in by chap. 239 of the Acts of the year 1875, ibe 1884, no answer to the petition was filed until board of barbor and land commissioners is 1886, nor was any movement made by either hereby authorized to take, in ibe name and beparty for a trial of the petition until 1887, there balf of the Commonwealth,” certain lands of having been negotiations between the parties which the previous Act referred to bad author. looking to a settlement. An auditor was ap-ized the purchase. The Act of 1889, chap. pointed to bear tbe petition in 1887 for tbe as- 446, authorized the board of harbor and land sessment of damages. Before this time, and commissioners to make certain purchases of before proceeding with the auditor, the counsel flats for the purpose of making more available ?f plaintiffs informed the defendants that they for sale the Hats of the Commonwealth, in idlended io dispute and test the validity of the the Harbor of Boston, and perfec ing and imtaking, and constitutionality of the Act, and proving the same." The Act of 1875, chap. the right of an auditor to proceed. It further 239, while in terms it does pot speak of the imappeared tbat during the year which followed, provement of the Harbor of Boston, authorizes the then counsel for the plaintiffs became in the improvement, filling and sale of the Com. capacitated by ill-bealth, and was compelled to monwealth's flats, requires a plan to be prego away for nearly a year, and that on bis repared to be approved by the governor and iuro other counsel was retained, who brougbt council, setting fortb wbat portions of these this bill forth with wben an auditor was ap- lands, when reclaimed, shall be devoted to rail. pointed. The case is still pending before him, road or commercial purposes, and what to gen. only a small part of the plaintiffs' evidence eral purposes. Apparently the Act we are having been heard. Under these circumstances, immediately considering was rendered peces. the plaintiffs bave not, by an election, deprived sary by the reluctance of other owners of fats themselves of the right to test the validity of to sell their property or join in the proposed tbe tak ng. The delays wbich bave occurred improvement. The message of bis excellency, appear, with the exception of that resulting the governor, in 1869, which bas been made a from the ill health of their counsel, to have oc- part of the agreed facts is relied on by the curred from causes for wbich they were mutu- plaintilfs to maintain their contention that the ally responsible.

project wbich the Commonwealth entered into, It is not contended by the plaintiffs that any and by reason of which their land was taken, requirement of tbe Statute was omitted in the was a mere land speculation. taking of their land, or that proper provision But wbile this message, as to the Acts rewas not made for compensation to them, but ferred to, contemplates that portions of tbe land they urge that the Statute is unconstitutional, reclaimed may be sold to advantage, it also as the taking of the land wbich is authorized urges ibat ibeir reclamation will benefit the was not for a public use. W bile the determi. Harbor of Boston, as well as provide important nation of tbe Legislature is not conclusive that public accommodation. Tbat the improvement & purpose for which it directs property to be of Boston Harbor is an object of a public taken is a public use, it is conclusive, if the Dature, and thus that lands taken for this pur. ose is public, ibat a necessity exists which re- pose are taken for a public use, can hardly be quires the property to be taken. In determin- controverted. It is not necessary that the en. ing wheiber a statule is within the legitimate tire community should directly enjoy or parsphere of legislative action, all reasonable pre- ticipute in an improvement or enterprise in sumptions are to be made in favor of ils valid- I order to constitute a public use, and a benefit to the principal harbor of the Commonwealth to recover damages on account of the death of is much more than a local advantage. Now,

his intestate from injuries caused by the emwhen we consider that Acts of Incorporation

ployer's negligence, in addition to his right as have been granted, and fully recognized as

legal representative to recover the damages

wbich accrued to the intestate in his lifetime. constitutional, wbich authorized the laking of private property for the purpose of carrying

(February 27, 1890.) forward enterprises sucb as the construction of railroads, or which tend to the prosperity and welfare of large portions of the community, A PRE AL by plaintiff from a judgment of should we be willing to say, even if no improve sustaining a demurrer to the complaint in an ment of Boston Harbor formed a part of the action to recover compensation for the death purpose, that the Legislature might not prop- of plaintiff's intestute wbich was alleged to erly provide for ihe reclamation of a large body bave resulted from the negligence of defendof lands, such as Nats, substantially useless in

ant's servants.

Affirmed. their original condition, for railroad and com

The declaration alleged that on January 3, mercial purposes, by taking, with proper com. 1889, plaintiff's iniestaie received personal inpensation, such of ibem as were necessary for juries while in defendant's employ in conseibe accomplishment of the object? Talbot v. Hudson, supra; Bancroft v. Cambridge, 126 quence of which he died in a few hours. Dass. 4: Boston & R. Mill-Dam Corp. v.' Nero the injuries resulted from a defect in some of

the appliances furnished to plain'.fl's iniestate man, 12 Pick. 467.

The plaintiffs offer no evidence that the de- with wbich to do bis work, which siect clared purposes of tbe Act, or those fairly in remedied owing to the negligence of defenc'ant

arose from, and bad not been disco»tzed od ferrible from it, were not its real purposes. or of some employé intrusted with the Juty of Even if it be true that the Commonwealth, as seeing that such appliances were in proper the result of the enterprise, expects 10 sell its condition. That plaintiff had duly given writlands to advantage, many enterprises of great ten notice to defendant of the time, luce and public utility are of advantage to individuals. Boston & R. Mill-Dam Corp. v. Newman and ibis action under the provisions o! cbop. 270,

cause of said injury. That plaintiff brings Talbot v. Hudson, supra. If lands are taken for a public use and for death of said in čestale, pud not for his suffer.

Laws of 1887, to recover ompensation for tho the benefit of tbe community, it is not of im

ing: portance that individuals, or, as in this case, the Commov wealih, may derive incideutal ad- sustained, thereupou plaintiff took this ap

Defendant demurred and the demurrer was van'age therefrom. The cases cited by the plaintiffs to this prop


Messrs. C. G. Fall and G. D. Burrage, osition that if i private use is combined with a

for appellant: public use in sucb a way that the two cannot be separated, the whole act of taking is invalid, staut death, the damages shall be the same as

Seciou 2 of the Act says that, in cases of indo not affect the case at bar. No lapd is here taken for a privale use, alıbough an incidental may be recovered for death not instantaneous; and private advantage may arise from such and what these are, section 3 tells us by say:

ing that, “in case of death,” compensation, taking for a public use. bill dismissed.

etc., "may be recovered in not less than $500 and not more than $5,000, to be assessed with

reference to the degree of culpability of the William E. RAMSDELL, Admr., etc., Appt., employer berein, or the person for wliose neg;

ligence le is made liable." Here is a rational NEW YORK & NEW ENGLAND R. co. measure of damages for both cases of death

instantaneous and not instanindevus. Upon the (....Mass.....)

defendant's contention, if there is any measure An administrator has no right, under the of damages at all for instantaneous death, it is

Employers' Liability Act, chap. 270, Laws of 1887, one which is self-contradictory and inappli


NOTE.- Action for damages for death caused by the" widow, heir or personal representative" of negligence.

one killed by another's negligence may sue for Ind. Rev. Stat. 1881, 8 266, providing that in cer- damages, the word “heir" means "child," and tain cases a guardian may sue for injury or death does not include parents or collateral relatives. of his ward, and that in a suit for injury the dam- Jordan v. Cincinnati, N. 0. & T. P. R. Co. (Ky.) 11 S. ages shall be for the benefit of the ward, gives a W. Rep. 1013. guardian no right of action for the death of a Children claiming title to land by a deed exa minor instantly killed, who has a mother living, cuted in 1856 to their father wbo has left the State where the guard an has puir no expenditures from and bas not been heard from for seven years, can the property of the ward as a result of the acci- sue as his heirs-at-law. Henderson v. Bonar (Ky.) dent. Louisville, N. A. & C. R. Co. v. Goodykoontz, 11 S. W. Rep. 809. 119 Ind. 111.

Damages for death caused by negligence. See Under the Texas constitutional provision for the note to Louisville, N. A. & C. R. Co. v. Buck (Ind.) bringing of an action for exemplary damages by 2 L. R. A. 520. “the surviving liusband, widow or the heirs of his Statutory action for, see notes to Cleveland Rollor her body," of one who has been killed by groes ing Mill Co. v. Corrigan (Ohio) 3 L. R. A. 25 pegligence, no one else can bring such action. Winnt v. International & G. N. R. Co. (Tex.) 5 Hence such an action by a parent cannot be main. L. R. A. 172. tained. Winnt v. International & G. N. R. Co. For injuries inflicted beyond state limits, see note (Tex.) 5 L. K. A. 172.

to Usher v. West Jersey R Co. (Pa.) 4 L. R. A. 261. Under Ky. Gen. Stat., chap. 57, 83, providing that

cable. In such a case, the court will so con other common carrier of passengers, or the strue the Statute as to save it from incov. neglect of oue whose duty it is to keep a way in sistency and absurdity.

repair. Pub. Stat. chap. 112, & 212 ; Stat. Com. v. Kumball, 24 Pick. 366, 370; Phila. 1883, chap. 243; Pub. Slat. chap. 73, 8 6, delphia v. Ridge Ave. Pass. R. Co. 102 Pa. 190, chap. 52, & 17. 197; Com. v. Conyngham, 66 Pa. 99; Henry v. These remedies are not general, but are

Tilan, 17 Vt. 479, 406; Jeffersonville v. Weems, strictly limited by statutes. Most of them are 5 Ind. 547; State v. Clark, 29 N. J. L. 96; Gil of a kind to which the Statule which we are key v. Cook, 60 Wis. 133.

considering could not apply. Moreover, when The court has already decided that it ought they exist they are given where death is instanto “construe the Statute liberally in favor of taneous, or witbout conscious sutfering, and em ployés.”

also where it is not. Com. v. Metropolitan R. Ryallsv. Mechanics Mills (Mass.)5 L.R.A.667. Co. 107 Mass. 236.

Messrs. H. E. Bolles and R. M. Salton. If ibis clause gave a right of action for the stall, for appellee:

death of an employé as an extersion to his The Statute makes no provision for recovery representatives of a right wbich under one or by an administrator for the death of an em- two statutes belongs to the representatives of ployé in any case, whether instantaneous or others, who are not employés, it would necesotherwise.

sarily include the right where death is instantanThe Statute creates two distinct causes of eous. But manifestly that was not intended. action,-the common-law action for damages The next section of the lattute deals exsustained in the lifetime, which is made to pressly with such cases in a different way. It survive by statute, and the statutory action is quite apparent that ibe tbird clause of the based on ibe death. The damages which the first section gives the legal representatives of a employé suffered in his lifetime may be re deceased employé merely a right to recover the covered by bis adminisırator under section 1, damages to wbicb the employé was entitled at clause 3, of the Act, and damages op account tbe time of his death. This is conceded by the of instant death may be recovered in an action plaintiff in his argument. brougbu by the widow under section 2of the Act. Section 2 relates to cases, “ where an emCom. v. Aletropolitan R. Co. 107 Mass. 236. ployé is instantly killed or dies without con

scious suffering,” and in such cases gives a Knowlton, J., delivered the opinion of the right of action to his widow, or, if there is no court :

widow, and there are next of kin dependent on The plaintiff sues as administrator, and ex his wages for support, then to such pext of kin. pressly states in bis declaration that he brings These two are the only sections of ibe Statute his action “under the provisions of chapter 270 which give to anybody a right to sue. Section of the Acts of 1887, to recover compensation 3 relates to the amount of compensation aod for the dealb of the said intestate, and not for to the notice to be given as a condition precebis suffering.” We are thus brought directly dent to the maintenance of a suit. to the question whether this Statute, common. The damages to be assessed under this secly called the Employers' Liability Act, gives an tion in case of death are those to be recovered administrator a right of action on account of by the widow or next of kin in a suit brought the death of his intestate, in addition to bis right under section 2. The expression compensaas legal representative to recover the damagestion in lieu thereof," does not very aptly charwbich accrued to ille intestate in his lifetime. acterize the recovery anthorized; for there is

Clause 3 of section 1 of the Statute provides no mole of estimating compensation ” for the thal, where an employé is injured from either death of a man, and the amount to be recovof the causes previously named, "the employé, ered is required to be as-essed with reference or, in case the injury results in death, the legal to the degree of culpabiliiy of the employer. representatives of such employé, shall have So, 100, the words in the second section, which the same right of compensation and remedies state that the recovery by ibe widow or next against the employer as if the employé ba l not of kin shall be “ in the same manner and to been an employé of, por in the service of, the the same extent as if the death of tbe deceased emplo er, nor engaged in its work" This bad not been instantaneous, or as if the deplainly gives an exerutor or administritor a ceaseul bad consciously suffered," can hardly right io proceed in the right of bis testailor or be used with liberal accuracy, for there was intestate and recover all damages which the no law under which a widow or next of kin deceased person suffered to the time of bis could recover at all for the death of the busdeath It does not purp rt to make the death band or relative until this Statute was passed. a substantial cause of action. It gives only The meaning obviously is that the rigbt of " the right of compens tion and remedies," action given in tbe first part of tbe section shall and it gives them to ilie employé, or to bis legal not be affected by the fact that the deceased representatives in case of his death. It implies died instantaneously or without conscious sufthat bis representatives are merely to succeed fering. The words last quoted cannot point to a to his rights and remedies. But the law recog. standard for the measurement of damages. No pizes no “right of compensation ” for the such standard exists under the circumstances death of a person, and gives to a deceased per- and conditions to which they profess to refer. son po remedies founded op his death. There The first section of the Siatute is to be conare a few cases in which remedies are given by strued as giving a right of action 10 the emindictment, or lo an executor or administrator ployé, or in case of bis death 10 bis legal for tbe benefit of relatives, where death has representatives suing in bis right; the second been caused by the fault of another, such as section as giving a right of action to the widow the negligence of a railroad corporation or or next of kin, without indicating anything as

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