Page:Federal Reporter, 1st Series, Volume 7.djvu/712

 700 FEDERAL REPORTER. �named in the act. In the first case the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just; and in the second may take into consideration the pecuniary injury to the kindred named in the act. The use of the words "pecuniary and exemplary," in the iirst clause of the proviso, and of the word "pecuniary," in the last, is significant, and shows that the legislature had both causes of action in view. Otherwise the last clause would serve no purpose. The statute of Nevada is different from any which has come under my observation in this particular, and it is evident that the draughtsman had in his mind certain ex- pressions to be found in some of the cases, and intended to meet them by giving a right of action to the personal repre- sentative in which the rule of damages should be the same as it would have been if the deceased had lived and brought it, and in addition to permit the jury to consider the pecu- niary loss to the kindred. This is further manifest from the fact that if there are none of the kindred named in the act, there may still be a reeovery, and the amount will become general assets. It is evident that in those states in which the statute was construed to limit the measure of damages to the pecuniary loss of kindred, making that the only basis of a recovcry, there was no escape from requiring an allegation that kindred were left, and the amount of damage suffered by them. �" We consider, upon the wliole," say the court ia Safford v. Drew, 3 Duer, 640, " that the only ground upon which the action can rest is the ground upon which the damages are to be recovered ; that the prescrip- tion 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 stat- ute, that pecuniary loss has resulted to the widow and next of kin." �This same construction, applied to the statute before me, would, so far as the kindred named in the act are con- cerned, limit the reeovery to the pecuniary injury they had sustained. But is it not evident that this would be saying that an added incident was the principal and only thing? �In my judgment the New York court could never have used the language quoted if it had been eonstruing the statute of Nevada. It could never have said that the pecuniary loss ��� �