Page:Federal Reporter, 1st Series, Volume 5.djvu/90

 7S FBOBBAIi BBPOBTEB. �The PhUadelphia, etc., Ry. Co. v. The Philadelphia, etc., Tow- boat 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 publie, navigable water of the United States, it mat- ters not -whetlier the boat was running in connection with a railway or otherwise, or whether it was plying up or down the Btream, 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 f act 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 a.lmiralty, 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 an- other," cannot be recovered by a suit in admiralty or other- wise 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 moritiir cumper- sona," 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 con- Bonant with justice. �The earliest English case is Higgins v. Btitcher, 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 tliis 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 ex- isted. �Afterwards (1808) Lord EUenborough, in Baher v. Bolton, ����