[The foregoing opinion was delivered at the October Term, 1872. A rehearing was granted, and the following opinion, modifying the first, was delivered at the January Term, 1873. ]
By the Court:We adhere to the views expressed in the opinion heretofore delivered in this cause, in respect to the mode in which the parties are entitled to exercise the right of peremptory challenge, in impaneling juries in civil actions, and we do not regard the denial of the right by the Court below as a harmless error, of which the defendants should not be heard to complain in this Court. But the argument on the rehearing has convinced us that the views expressed in the former opinion in respect to the second point therein discussed ought to be somewhat modified. It was intended by the statute to compel a person through whose negligence another was killed, to provide a fair and just compensation to the surviving widow arid children, if there were any, and if not, then to the next of kin, for the injury they suffered from the death of the deceased. If there were a large number of minor children who were entitled to be. maintained and educated by their deceased father, the recovery should be larger than if there was but one child. Children have a right to demand from the father a comfortable support and a reason*336ably good education until they shall arrive at a sufficient age to maintain themselves. If the father, whilst able to perform this duty towards his children, loses his life through the negligence of another, it was the intention of the statute to compel the offending party to make a fair and just compensation for the injury. To accomplish that end would require a larger sum for a numerous family than if it consisted of but one or two persons. In like manner, if there be a surviving widow, who, if her husband had lived, would have been entitled to a support from him, appropriate to his circumstances and condition in life, she would be entitled to be fairly and justly compensated for the loss in this respect which she suffered by his death. But on the death of the widow before the action is tried, the loss which she suffered ceases to be an element in the computation of damages. The defendant is exonerated from contributing towards her future support, for the obvious reason that she has ceased to exist. The amount of damages which the administrator might have been entitled to recover had she been living has nothing to do with the present controversy. The question of compensation to her no longer exists, and proof on that point would be wholly irrelevant to any issue in the cause. The only question to be determined, so far as the quantum of damages is concerned, is what sum will be a fair and just compensation to the children for the loss they have suffered by the death of their father. To attempt to reach this conclusion, by first ascertaining what would have been a just compensation to the widow and children jointly, had she been still living, and then subtracting from the gross sum the proportion to which the widow would have been entitled if she had lived, would tend only to confuse the jury and would require the introduction of proofs on a topic wholly foreign to the case. The instructions which the defendant asked on this point were therefore,properly refused.
Another point urged by the defendant is, that the Court *337erred in permitting the present plaintiff to be substituted by an ex parte order, as plaintiff in the action on the death of Mrs. Martin, the former administratrix. It has been the uniform practice in this State from its organization, so far as we are advised, to permit the substitution to be made, on a suggestion of the death of the former party and satisfactory proof on an ex parte motion, of the appointment and qualification of the administrator. We are not aware that any inconvenience or injustice has resulted from this practice, and we see no good reason for changing it. As was said by Chief Justice Marshall in Wilson v. Cadmon’s Exr., 3 Cranch, 193: “If the Court has unguardedly permitted a person to prosecute who has not given satisfactory evidence of his right to do so, it possesses the means of preventing any mischief from the inadvertence, and will undoubtedly employ those means.”
The opinion heretofore delivered will stand as the opinion of the Court, except as herein modified.
Judgment reversed, and cause remanded for a new trial.