Page:Federal Reporter, 1st Series, Volume 7.djvu/713

 BOACH V. IMPEBIAL MININ0 CO. 701 �to fcbe vfiIQ and next of kin constituted the sole cause of ac- tion — the sole ground upon which the jury could base a ver- dict. What I have said indicates the resuit reached upon this point. Whatever the jury " may take iuto consideration" must be stated in the complaint, for there cannot, properly, be any proof or any deliberation by the jury upon a cause of action not stated. It is not, however, in my opinion, indis- pensable to the plaintifE's complaint that it sbould state as a ground of recovery the pecuniary injury to the kindred. The complaint as it stands is sufficient in that it contains, in this particular, allegations touching the injury to the deceased upon which the plaintiff can recover. But if it is a fact that there are kindred of the degrees named in the act, and that they have sustained some pecuniary injury by the death, and if the plaintiff proposes to offer proof of those facts, they must be alleged. �The argument upon the part of plaintiff, however, seems to have proceeded upon the theory that because the amount of any recovery might beeome general assets under the stat- ute, proof might be given of these facts without au averment to support it. This, I think, cannot be done without violat- ing the old and just principle that the allegations and the proof must correspond. Upon this point I have coneulted Blake v. The Midland By. Go. 10 Law & Eq. 437 ; The City of Chicago v. Major, 18 111. 349 ; Chicago e Rock Island R. Co. V. Morris, 26 III. 400 ; Conant v. Griffin, 48 111. 410 ; Railroad Co. v. Miller, 2 Col. 465 ; Safford v. Drew, 3 Duer, 627; 9 & 10 Victoria, c. 93, p. 693; St. Cal. 1862, p. 447; St. Ind. 1862, § 584; Code lowa, §§ 2525-26; Comp. Laws Mich. p. 1881, (1872;) 1 Rev. St. Ky. 223. �The more important point remains to be oonsidered. It is alleged in the complaint that death was the immediate resuit of the injury received. The argument is that when death is the immediate or instantaneous result of an injury there is no space of time for arightof action to accrue to the injured party, and that none can, therefore, survive to the personal representative. On the other hand, it is contended that this statute gives, and was intended to give, a new right of action, ��� �