¶1(dissenting):
¶2The action for damages for the wrongful act of causing the decease of the intestate, was provided by statute. Before the enactment of the statute it could not be maintained. This statute was first enacted in this State in 1847 (Laws 1847, chap. 450), and in neither of the acts subsequently enacted has the liability of the party in the wrong been extended. (Laws 1849, chap. 256; Laws 1870, chap. 78; Code of Civil Pro., § 1902). By the act of 1847 the person who, or the corporation which, would have been liable, if death had not ensued, is made liable to an action for damages, notwithstanding the death of the-person injured, and that is the full extent of the liability created. It is limited to the person himself, or the corporation itself, causing the injury. No right of action against his executor or administrator has been provided. But when the wrongful act has' been committed by a natural person, it is that person, and only that person, whom the statute has rendered liable. Both by the terms of this act and the general statute declaratory of the causes of action which will survive against the personal representatives of the wrong-doer (3 K. S. [6th ed.], 732, §§ 1, 2), they are exonerated from liability in this action.' A very general provision of the Code, first enacted in 1870, concerning actions for damages for personal injuries, is also to the same effect, for it only prevents the abatement of that class of actions after a verdict has been recovered. (Code of Civil Pro., § 764). It was framed in such language as to include all actions for personal *144injuries, and this action is not excluded from it. A different view of the act of 1847 was adopted in Yertore v. Wiswall (16 How. Pr., 9), but as it is not supported by the language of the act, and is opposed to this section of the Code, it ought not to be followed. But the judgment should be affirmed
¶3Judgment reversed, with costs to abide event, and with leave to defendant to answer over in twenty days on payment of costs of demurrer.