in fixing a measure of damages, refused to allow anything beyond the pecuniary loss to the family of the deceased, saying, in answer to the argument that the party injured, if he had recovered, would have been entitled to a solatium, and therefore his representative shall be so on his death, "it will be evident that this act does not transfer this right of action to his representative, but gives to the representative a totally new right of action on different principles."

So, in New York, construing a statute passed in 1847 and framed upon this English statute, in the case of Safford 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,] neglect, or default." The first section of all is identical with the first section of the English 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 element of damages; the new right being the right to sue for damages for an act which caused death, and the new principle of damage being the pecuniary 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 some limitation in respect to the time within which death must result, the legislature would have so expressed it. But the main object being to secure compensation to the kindred, it, as justly observed by counsel, was as much required in the case of a sudden as of a lingering death; when the death is the immediate as when it is not the immediate result 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

language as renders it immaterial whether death was the immediate result of the injury, or whether time intervened. The case in 9 Cushing is not an authority here. The statute of Massachusetts, as construed by the court of that state, was passed to keep alive a cause of action which the party dying had at the time of his death; that of Nevada to give a new right of action, in which one measure of damages should be the pecuniary loss to the kindred.

Upon the language of the Code of Tennessee, which is not so clear as that of the statute of this state, it has been held that the fact that death was instantaneous was not material. Railroad Co. v. Price, 2 Heisk. 580. This case was made stronger by the holding afterwards that the action under the Code "was for the same cause as it would have been had the action been brought by the injured party in his lifetime." Fawlks v. Railroad, 5 Bax. 663. In this latter case it was again held that the Code made no distinction between cases of instantaneous death and others. The case of Brown v. Railroad Co. 22 N. Y. 191, is a decision upon a statute identical with the Nevada statute, so far as the first section, which confers the right of action, goes, and is precisely in point for the plaintiff. It was there held that it makes no difference, under the New York statute, whether the death is the immediate or instantaneous result, or whether it is consequential. So in Connecticut, under a statute providing that "actions for injury to the person, whether the same do or do not result in death, shall survive to the executor or administrator." vision of 1866, § 98. It has been held that the words "whether the injury do or do not result in death," have put an end to the common-law maxim in this class of cases that personal actions die with the person, and that it was immaterial whether death was instantaneous or consequential. The case in 9 Cushing is said to be somewhat "nice and technical," even as a construction of the statute of Massachusetts; but because the language of the statutes of the two states was not the same, it was not regarded by the supreme court of Connecticut as an authority which it was necessary to over

Gen. St. of Conn., Re

rule. Murphy v. Railroad Co. 29 Conn. 496; Same v. Same, 30 Conn. 184.

My attention has not been called to any decision, upon a statute at all like that of Nevada, holding a contrary doctrine. My conclusion is that the demurrer must be sustained upon the first point discussed, and overruled upon the last; and it must be overruled upon the second ground for reasons stated in this opinion, with leave to the plaintiff to amend by inserting the facts in regard to the kindred as named in the act, if so advised. Whether exemplary damages may be given in every case, or are to be confined to those cases in which they would have been allowed before the passage of the act, is a question upon which I intimate no opinion. See Myers v. San Francisco, 42 Cal. 215.

The demurrer is sustained, as stated, with leave to plaintiff to amend on or before the rule-day in July, and defendant to plead on or before the rule-day in August next.

In re PETITION OF WOODBURY.

(Circuit Court, S. D. New York.)

1. CLERK OF COURT-SEARCHING RECORDS-FEES.

A clerk of a federal court is entitled to a fee of 15 cents for filing a requisition for a search for judgments, etc.

2. SAME-SAME-SAME.

He is also entitled to a fee of 15 cents for each person against whom such search is made.

3. SAME-SAME-SAME.

He is also entitled to a fee of 15 cents per folio for the certificate of such search.

4. SAME-SAME-SAME.

He cannot make any charge for affixing the seal of the court to such certificate, unless required to so affix the seal.

5. SAME FILING REQUISITION.

He is authorized to file the requisition for his own protection, and cannot be required to return the same to the party delivering it, with the requested certificate thereto attached.-[ ED.

v.7,no.7-45

Charles H. Woodbury, in person.

Joseph M. Deuel, opposed.

BLATCHFORD, C. J. The petition in this case is presented to this court by an attorney and counsellor of this court. It sets forth that the clerk of this court demands, for searching the records of the court for judgments, decrees, or other instruments constituting a general lien on real estate, and certifying the result of such search, 15 cents for each person against whom such search is required to be made, and also 15 cents for each and every folio of such certificate, together with the sum of 20 cents for affixing the seal of the court to such certificate, when such seal is not required to be affixed; that said clerk is not authorized to demand any fee for the folios of his certificate, or for affixing the seal, unless he is required to do so; that the petitioner left with said clerk for search and certification a requisition, of which the following is a copy:

"The clerk of the circuit court of the United States for the southern district of New York will please search in his office for judgments and all other liens upon real estate against Eugene L. Bushe, for 10 years last past, and certify the result in writing for Charles H. Woodbury, 33 Pine street."

-That the said clerk proposes to give to the petitioner a certificate of which the following is a copy:

"Circuit court of the United States for the southern district of New York. I, John I. Davenport, clerk of the circuit court of the United States, in and for the southern district of New York, do hereby certify that I have searched the records of said court for judgments, decrees, and transcripts thereof, against the following-named persons, for the period designated herein, viz. Eugene L. Bushe, for ten years last past, and I do not find remaining or unsatisfied of record any judgment or decree against any of them, except as above set forth. In testimony whereof I have hereunto set my hand and affixed the seal of said court at New York this A. D. 1879. [Seal.]"

day of

--That said clerk will not give said certificate to the petitioner unless the petitioner will pay him 65 cents, as follows: 15 cents for the names searched against; 30 cents for the certificate, charging at the rate of 15 cents a folio, there being more than 100 words, including the attestation clause, but not 100 words excluding the attestation clause; and 20 cents

for the seal. That the practice of the former clerks of this court was to deliver the requisition to the party leaving it with the clerk, with the clerk's certificate thereon, which consisted of a brief reference to the liens, if any were found, and the words "none others found," or, in case no liens were found, the words "none found," with the name of the clerk or searcher affixed; but that said clerk has introduced the practice of keeping to himself the requisition, and delivering a certificate of the character above set forth. On this petition the petitioner has applied to the court for an order that the clerk deliver to him the certificate required by him by the said requisition, on the payment of the sum of 15 cents.

In reply to this petition the clerk makes oath that, for searching the records of his office for liens upon real estate, the following charges and no others are authorized by him to be made: Filing requisition, 10 cents; for each person searched against, 15 cents; drawing return to requisition, 15 cents per folio; affixing seal when required, 20 cents. That he believes the authority for charging those fees is contained in section 828 of the Revised Statutes; and that the payment of the fee of 20 cents for affixing the seal of the court was never exacted from the petitioner or from any one else, before the return to a requisition would be delivered, but the seal and the charge therefor have been omitted in the case of the petitioner, as well as all others who have stated that they did not wish the seal affixed.

The subject of the mode in which the clerk should certify the result of a search by him of the records of the court for judgments, decrees, or other instruments constituting a general lien on real estate, was brought to the attention of the circuit judge and the district judge some time ago, in view of the fact that the clerk of a United States court in another district had been sued for damages for making a false certifi cate in respect to a search for such liens, such certificate being made on the original requisition delivered to the clerk. It had turned out, in that case, that an additional name had been inserted in the requisition after the clerk had returned it with his certificate on it, so as to make it appear that the