Railroad v. Pitt, Adm'r.

ceased left no widow, child, no widow, child, or next of kin, the plaintiff must as certainly be defeated, because that case would not come within the statute, but would be governed by that rule of the common law by which the right of action dies with the injured person.

The action being maintainable alone under the statute, there can be no recovery unless both the wrongful act and the existence of some beneficiary contemplated by the statute, be proved; and, to be allowable in proof, such facts must first be averred. The averment of the former will not

justify proof of both.

The averment of the wrongful act alone does not present a case which, if established by proof, will authorize a judgment in favor of the plaintiff. It does not disclose a prima facie right of recovery; therefore, the original declaration in this case was bad. The additional averment that the deceased left a widow, child, or next of kin, was essential to plaintiff's right to maintain the action. Wherever the question has arisen upon statutes similar to our own the Courts have held with unanimity that the declaration is fatally defective unless it avers that the deceased left a widow, child, or next of kin surviving him. Such, at least, is the uniform holding of all the cases we have been able to find. It is the prevailing doctrine in New York, Indiana, Illinois, Minnesota, Vermont, South Carolina, Kansas, and Wisconsin, as will appear from the following cases: Safford v.

Railroad v. Pitt, Adm'r.

Drew, 3 Duer, 627; Lucas V. N. Y. Central R. R. Co., 21 Barbour, 245; I. R. R. Co. v. Keely's Adm'r, 23 Ind., 133; Stewart v. T. H. & I. R. R. Co.,. 103 Ind., 44 (S. C., 21 Am. and Eng. Eng. R. R. Cas., 209); C. & R. I. R. R. Co. v. Morris, 26 Ill., 400; Conant v. Griffin, 48 Ill., 411; Holton · v. Daly, 106 Ill., 131; Schwarz v. Judd, 28 Minn., 371; Westcott v. C. V. R. R. Co., 61 Vt., 438; Geroux's Adm'r v. Graves (Vt.), 19 Atlantic R., 987; Lilly v. C. C. & A. R. R. Co. (S. C.), 10 S. E. R., 932; Mo. Pac. R'y Co. v. Barber, 44 Am. and Eng. R. R. Cas., 523; Woodward v.

Railway Co., 23 Wis., 400.

The same holding was made by the United States Circuit Court upon construction of statute of Montana. 45 Fed. R., 407.

The Missouri cases announce the same principle; that is, that a person suing under the statute must aver and prove all the facts necessary to bring himself within its terms. Barker v. H. & St. J. R. R. Co., 91 Mo., 86; McIntosh v. Mo. Pac. Ry Co. (Mo.), 15 S. W. R., 80; Dulaney v. Mo. Pac. Ry Co., 21 Mo. App., 597.

The logic of the Kentucky cases, which decide that the personal representative cannot maintain his action if the deceased left neither widow nor heir (the statutory beneficiaries of the action), would seem to lead to the same result. Henderson's Adm'r v. Ky. C. R. R. Co., 5 S. W. R., 875; Koening's Adm'r, v. Covington, 12 S. W. R., 128; C., N. O. § T. P. Ry Co. v. Adams' Adm'r, 13 S. W. R., 428.

Railroad . Pitt, Adm'r.

As applied to statutes like ours, the Supreme Court of Virginia recognizes and approves the same requirement in pleading; but, because the statute of that State gives the personal representative a right of action generally-first for the family, and, secondly, for the estate of the deceased-it is held not to be necessary that he should state in his declaration whether he prosecutes the suit for the one or the other. If for either it is sufficient. B. & O. R. R. Co. V. Wightman's Adm'r, 29 Grattan, 431; Matthews v. Warner's Adm'r, Ib., 570.

In North Carolina the personal representative is, properly, not required to aver that the deceased left a widow, child, or next of kin, "because the statute [of that State] gives the action and authorizes the recovery of damages in any event," if the wrongful act of the defendant be established, the recovery to go to the relatives of the deceased, if any, and, if none, then to the university of the State, under the general statute. Warner v. W.

N. C. R. R. Co., 94 N. C., 250.

The same rule would prevail here as in Virginia and North Carolina, if, under our statute as under theirs, the right of the personal representative to maintain his action were dependent alone upon the wrongful act of the defendant, and not also upon the further fact that the deceased left a widow, child, or next of kin. The difference is, that the abrogation of the common law rule as to the extinguishment of such a right of action by death is entire in those States, while it is only

Railroad v. Pitt, Adm'r.

partial in this one. There the plaintiff brings himself within the statute by a simple averment of the death of his intestate by the wrongful act of the defendant. To have that effect here, he must aver, in addition, the survivorship of some person within the statutory designation.

As the defendant is entitled to a reversal and new trial on account of the error in the charge, we do not decide whether the defect in the declaration was cured by the verdict or not.

Though not averred, the deceased was shown to have left a widow. Not only did the defendant fail to object to the evidence, but it introduced the widow herself as a witness, and proved the fact by her.

Reverse and remand.

Brown v. Cheatham.

BROWN . CHEATHAM.

(Nashville. January 9, 1892.)

1. MARRIAGE AND DIVORCE. Of slaves.

Slave marriages, though never authorized or regulated by statute in this
State, have been recognized as valid by the Courts, and the issue
thereof declared legitimate, when the marriage was entered into with
the master's consent. And such marriages, once consummated, could
not be dissolved by any act of the parties while slaves without like
consent of the master.

Cases cited and approved: Downs v. Allen, 10 Lea, 666; Andrews v.
Page, 3 Heis., 668; 6 Jones (N. C.), 235; 20 Johns., I.

And the parties tc such valid slave marriage had not the right, after their emancipation, to annul it and enter into other matrimonial unions; and if they did so the issue of the latter marriage is illegitimate.

The Act of 1865–66, Ch. 40, providing that "all free persons of color, who were living together as husband and wife while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance of their parents' estates, applies alone to such slave marriages as had been lawfully entered into. Code construed: 3303 (M. & V.); 22447a (T. & S.).

FROM MAURY.

Appeal in error from Chancery Court of Maury County. A. J. ABERNATHY, Ch.