Page:Federal Reporter, 1st Series, Volume 5.djvu/938

 926 FEDERAL REPORTER. �courts. The earliest case upon the subject is that of Plummer T. Webb, 1 Ware, 75, in which Judge Ware upheld a libel by a father for the death by ill-treatment of his minor son. On the question being first presentod to Judge Sprague, he held, in Grapo V. Allen, 1 Sprague, 184, that "for mere torts the right of action by the general maritime law, as by the civil law, dies with the person injured;" citing Aall's Admiralty Practice, 21; Dunlap's Admiralty Practice, 87. But on roconsidering the subject in Gutting v. Seabury, 1 Sprague, 522, he thought it could not be considered as settled law that no action could be maintiiined for the damages occassioned from the death of a human being; but no decided opinion was pronounced upon the point, and the libel was dismissed on other grounds. Notwithstanding the learned judge made no attempt to dis- tinguish between a court of common law and a court of admi- ralty, his decision in Cutting v. Seabury has been cited in a large number of cases as a precedent for holding that a court of admiralty would sustain such a suit, though a court of common law would not. The Sea GuU, Chase's Decisions, 143 ; The Highland Light, Id. 150; The Towanda, 23 Int. Eev. Eec. 384; The Charles Morgan, 27 LawEeg. 624. �The whole subject is exhaustively discussed by the learned judge of the district of Oregon, in the case of Holmes v. The 0. e G. By. Co. 5 Fed. Eep. 75, and the jurisdiction sustained. Against this concurrence of co-ordinate courts I do not feel at liberty to set up my own opinion, particularly in view of the faot that the common-law rule seems to be consonant neither with reason nor justice. �I find less difficulty in sustaining libellant's claim under his supplemental libel. By chapter 2 1 2 of the Compiled Laws of this state, "whenever the death of a person shall be caused by wrongful aot, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have enti- tled the party injured to maintain an action and reeover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would be liable, if death had not ensued, shaU be liable to an action for dam- ages, notwithstanding the death of the person injured, and ����