Page:Federal Reporter, 1st Series, Volume 5.djvu/89

HOLMES ».' 0. & C. ET. CO. tl �and theref ore disallôw these exceptions at the' Cost of the de- fendant. �Exceptions are alao taken to the libel that it is' informai and insufficient, because it does not appear— ^Firs*, that the libellant bas càpacity to institute or prosecute this case; iecond, 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 subject- matter of the suit is not within the jurisdiction of the conrt. 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 theref ore not entitl'ed, as such, to maintain this suit. Now, the libel not Only states expressly that the libellant is the duly qualified administra- tor of the deceased, but sets forth every particular fact nec- cëssary to make him so. These exceptions are disallowed also. In support of the third exception it is contended that the death -was 'ùot caused by a marine tort because' it' took plaee in, the course of the performance of a contract maiinly to be performed on land. This argument assumes what does not appear upon the face of the libel, but it is well under- stood that Perkins was not only a passenger on the defend- ant's boat on the trip aoross the Wallamet river when the' death occurred, but also on ita railway from some point north of Eoseburg, and that the transportation across the river was merely incidental to or an insignifieant part of the contract to convey the deceased to Portland. Admitting, however, that such was the fact, it does not affect the resuit. �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 conse- quence of the negligence or malfeasance of others, when the remedy at common law was by an action on the case. War- ing V. Clarke, 5 How. 451; The Gennessee Chief, 12 How. 450; ����