1. DEATH, ACTION FOR -Although an action may not lie at common law to recover damages for the death of a person, it will at the civil law, and therefore semble that it will in admiralty.

2. MARINE TORT.-A marine tort is one that occurs on any public, navigable water of the United States, whether caused by a wrongful act or omission, and the proper district court, as a court of admiralty, has jurisdiction of a suit to recover damages therefor.

3. RIGHT GIVEN BY STATE STATUTE.-The jurisdiction of the national courts does not always, nor often, depend upon the origin of the rights of the parties; and where a state statute gives a right, the same may be asserted or enforced in such courts whenever the citizenship of the parties or the nature of the subject will permit.

4. SAME.-The right given by section 367 of the Oregon Civil Code to an administrator, to recover damages on account of the death of his intestate from the party by whose act or omission such death was caused, may be enforced in the national courts.

5. SAME.-SUIT IN ADMIRALTY.-When a passenger on the railway ferryboat, plying accross the Wallamet river between East Portland and Portland, was drowned by reason of the negligence of the owner of the boat or its servants, a marine tort was committed, for which a suit may be maintained in the district court by the administrator of the deceased to recover the damages given therefor by section 367, supra.

In Admiralty.

Sidney Dell, for libellant.

Joseph N. Dolph, for defendant.

DEADY, D. J. This suit is brought to recover the sum of $4,900, on account of the death of William A. Perkins, the libellant's intestate, alleged to have been caused by the negligence of the defendant on November 16, 1868, while transporting said Perkins across the Wallamet river, at Portland, on the defendant's duly enrolled steam ferry-boat Number One.

Substantially, the libel alleges that on September 17, 1879, by the order of the county court of Jackson county, Oregon, the libellant was duly appointed administrator of the estate

of said Perkins, and that pursuant thereto he duly qualified as such administrator and received letters of administration. upon said estate, duly issued by the clerk of said court; that on said November 16th the defendant, as owner of said ferryboat, was engaged in carrying passengers, for hire, across said Wallamet river, between East Portland and the foot of F street, in Portland, the same at said point being a public navigable river of the United States, and within the ebb and flow of the tide; that at 7 P. M. of said day said Perkins took passage on said boat at East Portland, and by reason of the defective condition thereof, and the negligent and unskilful manner in which the west landing was made, the darkness of the night, the want of lights and guards, said Perkins was there "precipitated" into the river and drowned.

The defendant has taken 62 exceptions to the libel for "surplusage, irrelevance, and impertinence," which appear to include the whole of it; and also an exception, for the same causes and for repetitions therein, to the libel as a whole. According to rule 36 of the admiralty rules, "exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found." On the argument no specific portion of the libel was pointed out as impertinent, except a brief allegation concerning the danger incurred by other passengers on the same occasion, but it was insisted generally that the case of the libellant was stated with unnecessary particularity and repetition.

In admiralty, particularity in pleading is not generally considered a fault, but the reverse. The rule is that the pleader must state all the essential particulars of the alleged tort or misconduct with the circumstances of time and place. Ben. Ad. 486-7; 2 Pars on Ship. & Ad. 381; Ad. Rule 23; The Clement, 2 Curt. 366; Mocomber v. Thompson, 1 Sum. 385; The Quickstep, 9 Wall. 670; The Syracuse, 12 Wall. 173. I do not think this libel is objectionable for impertinence,

and therefore disallow these exceptions at the cost of the defendant.

Exceptions are also taken to the libel that it is informal and insufficient, because it does not appear-First, that the libellant has capacity to institute or prosecute this case; second, that he is the duly qualified administrator of said Perkins; third, that he has sustained any damage, or that the defendant is indebted to him; and, fourth, that the subjectmatter of the suit is not within the jurisdiction of the court. These exceptions in admiralty are in the nature of special demurrers at common law. The first and second exceptions are substantially the same, and only make the objection that, upon the face of the libel, the libellant is not the qualified administrator of the deceased, and therefore not entitled, as such, to maintain this suit. Now, the libel not only states expressly that the libellant is the duly qualified administrator of the deceased, but sets forth every particular fact neccessary to make him so. These exceptions are disallowed also. In support of the third exception it is contended that the death was not caused by a marine tort because it took place in the course of the performance of a contract mainly to be performed on land. This argument assumes what does not appear upon the face of the libel, but it is well understood that Perkins was not only a passenger on the defendant's boat on the trip across the Wallamet river when the death occurred, but also on its railway from some point north of Roseburg, and that the transportation across the river was merely incidental to or an insignificant part of the contract to convey the deceased to Portland. Admitting, however, that such was the fact, it does not affect the result.

The jurisdiction of courts of admiralty in cases of torts depends wholly upon locality. Where a tort is committed upon a public navigable water of the United States, it is a marine tort, within the jurisdiction of the proper admiralty court. The term "torts" includes wrongs suffered in consequence of the negligence or malfeasance of others, when the remedy at common law was by an action on the case. Waring v. Clarke, 5 How. 451; The Gennessee Chief, 12 How. 450;

The Philadelphia, etc., Ry. Co. v. The Philadelphia, etc., Towboat Co. 23 How. 214; The Commerce, 1 Black, 575; The Belfast, 17 Wall. 637; Insurance Co. v. Dunham, 11 Wall. 25.

This voyage, upon which this death occurred, being made upon a public, navigable water of the United States, it matters not whether the boat was running in connection with a railway or otherwise, or whether it was plying up or down the stream, or across it. The length or direction of the voyage, or its relation to other means or modes of transportation, in no way affect the fact stated in the libel, and upon which the jurisdiction of the court of admiralty alone depends, that the tort was committed upon the public navigable water of the United States.

Upon this and the remaining exception two other points are made by counsel for the defendant, namely: (1) That in amiralty, as at common law, no action is maintainable for the wrongful death of another; and (2) that the damages given by section 367 of the Oregon Civil Code, for the death of a person "caused by the wrongful act or omission of another," cannot be recovered by a suit in admiralty or otherwise than by an action at law in the state court; and upon these the contention mainly turns.

It is admitted that it came to be the rule at common law that an action will not lie to recover damages for the death of a human being. The maxim, "Actio personalis moritur cum persona," was held to apply. It is also admitted that the weight of authority in this country is with the English rule. But it is not admitted that the rule is founded in reason or is consonant with justice.

The earliest English case is Higgins v. Butcher, Yelv. 89, in which it was held that a master could not maintain an action for the death of his servant, feloniously caused, for the reason that the private injury was merged in the felony. But this would not apply to a case where the death was caused by negligence, not criminal, and at this day would not be held. sufficient to defeat the private remedy, when it otherwise existed.

Afterwards (1808) Lord Ellenborough, in Baker v. Bolton,

1 Camp. 493, said at nisi prius, in a case by a husband for the death of his wife, caused by injuries received in the upsetting of the defendant's coach that "in a civil court the death of a human being cannot be complained of as an injury." The subsequent cases, both English and American, appear to rest upon the authority of Baker v. Bolton, and the absence of any precedent or dictum to the contrary.

The right to maintain the action has been denied in several of the state courts, among others in Massachussetts in Carey v. Berkshire Ry. Co. 1 Cush. 477, and in New York in Green v. Hudson Ry. Co. 2 Keys, 294; but it has been maintained in the latter state in Ford v. Monroe, 20 Wend. 210, and in U. S. C. C. for Nebraska in Sullivan v. Union Pacific Ry. Co. 3 Dil. 341. It has also been denied in Insurance Co. v. Brame, 95 U. S. 756.

In Sullivan v. Union Pacific Ry. Co., Mr. Justice Dillon disapproves of the common-law rule, and, speaking of the decision in Baker v. Bolton, says: "Considering that it is not reasoned and cites no authorities, and the time when it was made, and that the rule it declares is without any reason to support it, my opinion is that it ought not to be followed in a state where the subject is entirely open for settlement."

But in 1846 parliament interfered, and by the act of 9 and 10 Vict. c. 93, commonly called Lord Campbell's act, gave an action to the administrator for the benefit of the family on account of the death of a person caused by the "wrongful act, neglect, or default" of another; and most of the states of the Union, including Oregon, have since followed this illustrious example.

But the civil law permitted the action, and it is not admitted that in a court of admiralty, which is not governed by the rules of the common law, a suit for damages on account of the death of a person may not be maintained. In The Charles Morgan, 4 P. C. Law Jour. 151, the district court for the southern district of Ohio, in a suit in admiralty brought by the widow to recover damages for the death of her husband, sustained the jurisdiction, upon the ground that a majority of