Safford v. Drew.

by the personal representatives of a deceased person for loss or damage resulting from his death. This is fully stated in the case of Carey v. The Berkshire R. R. Co., 1 Cushing, 475. (See 1 Sanders R. 216, n. 1; Baron Parke in Blake v. The Midland County R. R. Co., hereafter cited; Barber v. Bolton, 1 Campbell, 493; 1 M. & Selwyn, 408; Miller v. Umbehoven, 10 Serg. & Rawle, 31.)

On the other side, while the English law admitted of no action after death in cases of this nature, the civil and the Scotch law permitted it, and damages were given to the relations upon the ground of a solatium.

The first case under the English statute was that of Ainsworth v. The S. E. R. W. Co. (11 Jurist, 758). An abstract of it may be found in a note to 1 Am. R. R., and Canal Cases, p. 446, n.

After this, some rulings, chiefly by single judges at nisi prius or chambers, took place, which are stated in the case of Blake hereafter noticed, but as they have little bearing upon the questions we are considering they are omitted.

The consideration of the true construction of the statute then came before the Queen's Bench (February, 1852) in the case of Blake v. The Midland Counties Railway Co., which is reported (21 L. Journal R. N. S. 233, and also 10 Law & Eq. R. 439). The suit was by the widow and administrator of a husband killed by an accident to the train in which he was travelling. It was admitted that there was negligence on the part of the defendants. For the purpose of damages, evidence was given of the average income of the deceased from the profits of mercantile business, and other circumstances of his situation.

The judge charged the jury, that upon the true construction of the act, the claim of the plaintiff must be limited to the pecuniary injury resulting to her from the death of her husband. Subsequently he stated, that at common law this action was not maintainable; that for his own part, he thought it very difficult to apply any other test but the pecuniary loss which the plaintiff had sustained by the death of her husband; but that it was their duty to assess the damages, and that it was competent to them to give such damages as they might think proportioned to the injury sustained. The jury gave

Safford v. Drew.

£4,000, which the judge reported, that he considered too large, if the damages were to be calculated upon the principle of pecuniary compensation. A motion for a new trial was made on the ground of misdirection and excessive damages.

Coleridge, J., delivered the opinion of the court; and said that the important question was, whether the jury, in giving damages, were confined to injuries of which a pecuniary estimate may be made, or might add a solatium to the parties, in respect of the mental sufferings occasioned by the death. He proceeds, "The title of the act may be some guide to its meaning, and it is, 'An act for compensating the families of persons killed by accident,' not for compensating their wounded feelings. Reliance was placed upon the first section, which states in what cases the newly given action may be maintained, although death has ensued; the argument being, 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. But 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. The second section enacts, that in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and whose benefit, such action shall be brought. The measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death to his family. The language seems more appropriate to a loss of which some estimate may be made by calculation, than to an indefinite sum, independent of all pecuniary estimate, to soothe the feelings." A new trial was ordered.

It is impossible to avoid the conclusion, that under this decision, the rule which governs the measure of damages is the exclusive ground of the action, viz. a pecuniary loss to the family of the deceased. The judicial construction of the English act sheds no little light upon our own.

The only other construction which our statute admits, and upon which we have bestowed much attention, is this-that the first section, and the two first clauses of the second section, give a right of action to the personal representative, precisely in the

Safford v. Drew.

cases and to the extent in which the deceased could have maintained a suit; and that the rule of damages then would be the amount which the jury would have given the deceased had he lived and brought the action. And in such a case, that pecuniary loss to the family was not to be considered. Next, that the action might proceed on the ground of such loss, and then the amount which the deceased might have recovered is to be laid out of view; so that, in cases in which the death of a party was really a benefit to his next of kin in a pecuniary view, still the action would lie on the basis of the right of the deceased-and where it was an injury, the action would proceed on that basis: that the two causes of action and rules of damages could not be united, but the party must proceed for one or the other.

Some expressions in the case of Baker v. Bailey, 16 Barb. 60, tend to support this view.

But after minutely considering the whole statute, we are of opinion that the cause or grounds of action cannot be thus separated and preserved distinct. The statute, it is not to be contested, creates a new action. It does not supply any new mode or form of continuing or transferring an existing right. The first section merely operates to vest this new right in the representative, wherever the deceased had any original right of action at his death, or, more properly, could have had, had he survived. It is such action which is spoken of in the first line of the second section, and also in a subsequent clause, when the parties for whose benefit it is to be brought are designated; and then the act proceeds, that in every such action, the jury may give such damages as they shall deem a fair and just compensation (not exceeding $5,000), with reference to the pecuniary injury resulting from such death.

We consider, upon the whole, that the only ground upon which the action can rest, is the ground upon which the damages are to be recovered-that the prescription of the one ground or rule of damage has excluded every other, and thus rendered it indispensable, in order to support a suit under the statute, that pecuniary loss has resulted to the widow and next of

kin.

We are also of opinion that the act may be interpreted so as

Safford v. Drew.

to allow an action where there is a widow only, or next of kin only, as well as where both are in existence.

In the present case the complaint, upon these principles, is liable to the objections raised by the demurrer. There is not an allegation in it tending to show that any pecuniary injury or loss has arisen, or can arise, to any one by reason of the death of the party. As this is the only cause of action, the settled rule of pleading under the Code, demands that the facts constituting it should be set forth. Without saying how far it is necessary to go in such allegations, it may be stated, that at least the persons who have suffered, or may suffer such injury, should be named, with an averment that they had sustained a pecuniary loss to a certain amount from his death.

The fourth section of the English statute provides, that the plaintiff may be required to deliver a particular of the nature of the claim in respect of which damages shall be sought to be recovered. In Blake's case before cited, the court say an argument had been drawn from that clause, as if it required so much to be claimed for pecuniary damages, and so much for solatium. But these words will be abundantly satisfied by a statement of the manner in which the pecuniary loss to the different persons, for whom the action is brought, is alleged to have arisen.

In Murphy v. Kipp and Brown (1 Duer's Reports, 659), this court refused to order a bill of particulars, stating by anticipation all the items, and the amount of each, which the court might hold would properly enter into the computation of damages. But this decision does not exclude the propriety of alleging a pecuniary loss, or some substantial facts on which it is asserted to arise.

The complaint should conform to the substance of the rule. It should show that there is living a widow, or next of kin, or both, and their names, with an averment that they had sustained a pecuniary loss or injury by the death of the party.

This complaint is defective in each of these points, and the order made at Special Term, allowing the demurrer, must be affirmed with costs.

Wright v. Jessup.

NICHOLLS V. NICHOLLS.

The court has no power to enforce a decree, that one of the parties to an action for a limited divorce deliver infant children of the marriage to the other, to whom their custody is awarded, by issuing process to the sheriff commanding him to take the bodies of the infants wherever they may be found, and deliver them to the party entitled to their custody. The remedy of the aggrieved party is by attachment against the other party, to enforce obedience to the decree, or by habeas corpus.

At CHAMBERS, March 25, 1854, before DUER, J.

THE application of the wife, the plaintiff, for a limited divorce had been denied, but the judge, in dismissing the complaint, had ordered her to deliver two infant children of the marriage to her husband, the defendant, to whom he awarded their care and custody. Upon this decree, and upon an affidavit of the defendant stating that he had been unable to discover where the children, or the plaintiff, were, and believed that she concealed them with the design of evading the order of the court, the counsel of the defendant moved that the process of the court might be issued to the sheriff, directing him to take the bodies of the infants wherever they might be found, and deliver them to the defendant. Held, that the court had no power to issue the process prayed for, and that the defendant must seek his remedy by an attachment against the plaintiff, or by a habeas corpus. There was no precedent for such a general search-warrant as was asked for, and it would be contrary to settled principles to grant it. Motion denied.

WRIGHT V. JESSUP et al.

The rule, that witnesses to be examined under a commission must be named in it, is never departed from, except under very special circumstances, and never when by reasonable diligence the names might have been ascertained.

At CHAMBERS, March 25, 1854, before DUER, J.