omission. Such action shall be commenced within two years after the death, and the damage therein shall not exceed $5,000, and the amount recovered, if any, shall be administered as other personal property of the deceased person." § 114. Statutory right of action for death is enforceable in admiralty. But the point is made by counsel for the defendant that the Oregon statute provides that the damages for the death shall be recovered by an action at law, and therefore they cannot otherwise be obtained, as by a suit in admiralty. But the right conferred by the statute, in whatever form of words, is essentially separate and distinct from the remedy, and it may be enforced in the proper national court, according to the procedure of that forum.

In The Highland Light, supra, 154, it was held that the widow and son could maintain a suit in admiralty to enforce a right to damages given by a similar statute of Maryland for the death of the husband and father, caused by a tort committed upon the navigable waters of that state. In speaking of the statute the chief justice says: "The right is quite separate from the remedy. The right, like that of a statute lien upon a vessel for repairs in home ports, may be enforced in admiralty by its own processes. It is not necessary to pursue the statutory remedy in order to enforce the statutory right. It is clear, therefore, that for an injury such as that proved in this case the wife and son of the man killed may have redress in admiralty."

In Steamboat Co. v. Chase, supra, 531, Mr. Justice Clifford, in discussing the question, said: "Doubts, however, may arise whether the action survives in the admiralty, and, if not, whether a state statute can be regarded as applicable in such a case to authorize the representatives of the deceased to maintain such an action for the benefit of the widow and children of the deceased. Undoubtedly the general rule is that state laws cannot extend or restrict the jurisdiction of the admiralty courts, but it is suggested that the action may be maintained in this case without any departure from principle, as' the only practical effect allowed to the state statute is to take the case out of the operation of the common-law maxim that personal actions die with the person."

But in Railway Company v. Whitton, 13 Wall., 270, which was an action. brought to recover damages for the death of a person upon a statute of Wisconsin that provided whenever the death of a person is caused by "the wrongful act, neglect or default of another," the person or corporation which would have been liable for an injury if death had ensued "shall be liable to an action for damages," not exceeding $5,000-" provided that such action shall be brought for a death caused in this state, and in some court established by the constitution and laws of this state," the supreme court held that an action to recover the damages might be maintained in the national circuit court for Wisconsin, notwithstanding the limitation of the state statute. In delivering the opinion of the court, Mr. Justice Field, after admitting that the "right of action exists only in virtue of the statute" and in the cases therein specified, says: "In all cases, when a general right is thus conferred, it can be enforced in any federal court within the state having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such federal court by any provision of state legislation that it shall only be enforced in a state court. Whenever a general rule as to property or personal rights, or injuries to either, is established by state legislation, its enforcement by a federal court in a case between proper parties is a matter of course, and the jurisdiction of the court in such case is not subject to state limitation."

Assuming that the right of action dies with the person in admiralty, as at common law, then in my judgment the case is in all respects analogous to those arising under state statutes giving a lien upon a domestic ship for repairs giving half-pilotage for an offer of pilotage services, or a right to a party in possession of land to maintain a suit against any one setting up an adverse claim thereto for the purpose of having such adverse claim determined. In all these cases the local law gives the right, which, like other rights, may be enforced in the proper national court, depending upon its nature or the citizenship of the parties.

If a state gives an alien a right in lands which the common law does not give him, such alien may assert such right in the national courts as well as those of the state. The jurisdiction does not depend upon the origin of the right, but the fact of the right and the citizenship of the parties. The rights of parties generally have their origin in the laws of the state, and therefore such laws furnish so far the test and measure of such rights, whether prosecuted or defended in the national or state courts. The Orleans, 11 Pet., 184. The question of whether the state or national tribunals have jurisdiction does not always depend upon the state or national origin of the right or title in question. If the plaintiff's citizenship is different from that of the defendant he has a right to sue in the circuit court of the United States, whether the right he asserts is of state or national origin. For the same reason, if a right is of admiralty jurisdiction, it is cognizable in the district courts, without reference to the residence of the parties or the origin of the right. The maxim that the state cannot enlarge the jurisdiction or control the process of the national courts is admitted. But, certainly, it may increase the cases in such courts by enlarging the class of persons or things included in their jurisdiction.

For instance: By the general maritime law of the United States materialmen have no lien upon a vessel for supplies furnished her in the home port, but in the absence of legislation by congress the state may give a lien in such cases, and the contract and service being a maritime one, the right thus acquired may be enforced in the district court. The Planter, 7 Pet., 324; The Lottawana, 21 Wall., 579.

Congress, by virtue of its power to regulate commerce may pass laws governing pilots and pilotage. But until it does so the state may make regulations on the subject. Suits for pilotage are of admiralty jurisdiction; but by the general maritime law compensation cannot be recovered upon a mere tender and refusal of pilot services. Yet many of the states having found it necessary, in maintaining a body of skilful and daring pilots upon the pilot grounds within their limits, to provide that the pilot first tendering his services to a vessel thereon should receive, if refused, half-pilotage, there was thus created in favor of the pilot so tendering his services a claim for pilotage. which belonged to the admiralty jurisdiction, and might be enforced in the district court. The origin of this right is in the state law, but the nature of it authorizes the party in whose favor it exists to sue in the admiralty court. The Wright, 1 Deady, 597; The California, 1 Saw., 467; The Steamship Company v. Joliffe, 2 Wall., 457; Ex parte McNiel, 13 id., 236. In the last case, page 243, Mr. Justice Swayne, speaking for the court, says: "It is urged further that a state law could not give jurisdiction to the district court. That is true. A state law cannot give jurisdiction to any federal court; but that is not a question in this case. A state law may give a substantial right of such

character that where there is no impediment arising from the residence of the parties the right may be enforced in the proper federal tribunal, whether it be a court of equity, of admiralty or of common law. The statute in such cases does not confer jurisdiction. That exists already, and it is invoked to give effect to the right by applying the appropriate remedy.”

Owing to the anomalous state of the titles to land in Kentucky, a statute of that state, passed in 1796, gave to the person in possession of real property, and having a title thereto, the right to maintain a suit in equity against any person setting up a claim thereto for the purpose of determining such claim, without being compelled to wait for such person to assert such a claim at law. This statute enlarged the class of cases in which a party was entitled to relief in a court of equity, by obtaining a decree to quiet the title to lands. Proving beneficial, the substance of it has since been adopted in many of the states, and now constitutes section 500 of the Oregon Civil Code. It gave a new right, which from its nature was, and is, properly enforceable in a court of equity, as well of the nation as the state, wherever the citizenship of the parties gives the former jurisdiction. Curtis v. Sutter, 15 Cal., 262. In Clark v. Smith, 13 Pet., 200, the supreme court held that the right conferred by this statute could be asserted in the courts of the United States as well as in those of the state. In Lorman v. Clark, 2 McLean, 569, the court held that a statute of Michigan which gave a judgment creditor the right to maintain a suit in equity, to subject his debtor's property to the payment of the judgment, was a right which could be enforced in the courts of the United States, saying, "the courts of the United States, in the exercise of their chancery powers, will enforce equitable rights, whether they originate by contract, by local usage, or by the statutes of the state." The case of Fitch v. Creighton, 24 How., 160, is to the same effect.

$115. Right of Oregon administrator to sue affirmed.

Some question is made by the defendant as to the right of the administrator existing by virtue of the laws of Oregon to maintain this suit in this forum, and the case of Mackay v. The Central Railway of New Jersey is cited by counsel in support of the objection. This was a case on all-fours with the one under consideration, except that the action was at law in the circuit court of New York under a statute of New Jersey, while the plaintiff was appointed administratrix of the deceased under the laws of New York. The court held that the right of the New York administrator was limited by the laws of New York, and that the right to recover the damages on account of the death of the deceased was only conferred by the statute of New Jersey upon an administrator appointed under its laws, and therefore dismissed the action. But no question was made but that an administrator appointed under the laws of New Jersey might maintain an action upon the statute in the proper United States court. But in this case the plaintiff is appointed administrator under the laws of Oregon, and the statute in question expressly confers upon him the right to recover damages for the death of his intestate. He sues as the trustee of an express trust to recover a fund for the benefit of those among whom the law will distribute the estate of his intestate.

§ 116. Contributory negligence is matter of defense.

It is also objected that it is not explicitly stated in the libel that the death was caused without the fault of the deceased. The libel states that the death was caused by the negligence of the defendant, and details the facts and circumstances of the transaction, from which it reasonably appears that it must

have occurred wholly from such negligence. My impression is that the libel is sufficient in this respect, and that if the defendant wants to raise the question of contributory negligence on the part of the deceased it must do so by a defensive allegation to that effect. Railway Co. v. Gladmon, 15 Wall., 406 (§§ 9-11, supra).

The only case cited upon this point is Murphy v. The C., R. I. & P. R. Co., 14 Ia., 661. In this case the contributory negligence of the deceased appears to have been pleaded as a defense, but upon the close of the plaintiff's evidence the court below, upon the motion of the defendant, directed the jury to find for it, because it appeared from such evidence that the deceased was "guilty of such negligence as contributed proximately to the accident," and this instruction was affirmed on appeal. The case is not in point. In the judgment of the court the plaintiff's evidence anticipated and established the defendant's defense.

In conclusion, the tort which caused the death of Perkins having occurred upon a navigable water of the United States is a marine one, and, even if the maritime law does not give a remedy for the wrong, the law of the state having given the right to the administrator to recover damages therefor, this court as a court of admiralty has jurisdiction of a suit to enforce such right. These exceptions are also disallowed.

Opinion by DEady, J.

ON THE MERITS.

STATEMENT OF FACTS.-The answer of the defendant, in addition to the allegations directly responsive to the libel and contesting the cause of suit therein stated, contains defensive allegations in bar of the same, which are the equivalent of the pleas of ne unques administrator and a prior adjudication at law. These pleas are but different forms of the same defense, and the facts upon which they rest are as follows:

In June, 1877, William A. Perkins, then in his twenty-second year, came to Jackson county, Oregon, via California, from his native state, Vermont, with his mother and step-father, Michael Riggs, where he remained until September 10, 1878, when the mother, on account of alleged cruel treatment, left Riggs, taking her three minor children with her and the effects which belonged to her and started for California, where she had a brother living, with the ultimate purpose of going back to Vermont to reside, where she had a son still older than the deceased. The deceased accompanied her, first disposing of a pre-emption claim on Applegate creek, upon which he and his mother had resided separate from Riggs for some months, and leaving nothing behind him.

At Roseburg they were detained by sickness and poverty until October 10, 1878, when they came to Salem, where, for the want of means to pursue their journey, they remained until November 16, when by aid of others they started for California on the defendant's railway, and on the evening of the same day, while crossing the river at Portland, the deceased was drowned.

On December 2, 1878, the county court of Multnomah county, upon the proper petition of the mother of the deceased, styling herself "Mary A. Riggs, of the city of Portland," in which it was alleged "that the deceased was, at or immediately before his death, an inhabitant of said county," made an order appointing H. W. Davis administrator of the estate of said William A. Perkins, in which, among other things, it is alleged that by "the oath of the petitioner " it was "proved" that said Perkins died intestate in Multnomah county, Ore

gon, he "being at or immediately before his death an inhabitant of said county," which order and appointment are still in full force and effect; and said Davis, in pursuance thereof, duly qualified as such administrator, and on January 2, 1879, brought an action at law in the circuit court of the state for said county against the defendant under section 367 aforesaid, for the identical cause of suit alleged in the libel herein, in which, on March 31, said circuit court gave judgment that the plaintiff take nothing thereby, which judgment was on August 11, 1879, duly affirmed by the supreme court of the state, and still remains in full force and effect.

On September 17, 1879, the county court of Jackson county, Oregon, appointed the libelant administrator of the estate of said Perkins, and in pursuance thereof the libelant duly qualified as such administrator and brought this suit to recover damages for the death of his intestate. Upon these facts. the plea of a prior adjudication is not sustained. For although the action of Davis v. The O. & C. R'y Co. was for the same cause as this, it was between different parties plaintiff, who were not privies. The Jackson county administrator is not the successor of the Multnomah one. On the contrary he claims title to the estate of the deceased by a distinct and independent, if not an adverse, grant. His suit proceeds upon the assumption that Davis was not the administrator, and that therefore his action to recover damages belonging to the estate of the deceased was a nullity and of no effect.

The defense that the libelant was "not ever administrator" of the deceased involves the inquiry: 1. Did the county court of Multnomah county have jurisdiction to grant the administration of the estate of the deceased to Davis when and as it did? 2. Can the decree of said court making said grant be attacked collaterally?

§ 117. Jurisdiction of court appointing administrator.

The jurisdiction to grant letters of administration upon Perkins' estate was vested in the county court of the county of which the deceased, "at or immediately before his death, was an inhabitant," "in whatever place he may have died." Or. Civ. Code, secs. 1051, 1053.

And first as to the fact· of what county was the deceased "an inhabitant" at or immediately before his death? In the consideration of this question counsel for the libelant assumes that habitation and domicile are in this case convertible terms, and that therefore a person is always an inhabitant of the place in which he has a domicile, and vice versa. But I do not think that the term "inhabitant" as used in the statute is the equivalent of the technical term domicile.

A habitation is a place of abode-a place to dwell in; and an inhabitant of a place is one who has an actual residence there. But a person's domicile is a place where he may reside in fact, or for many purposes may be deemed to reside. Indeed, a person may have two domiciles at once, "as, for example, if a foreigner, coming to this country, should establish two houses, one in New York and the other in New Orleans, and pass one-half the year in each, he would for most purposes have two domiciles." Bouv., Domicile.

§ 119. Domicile" and "inhabitant" defined.

A man's domicile, as the word implies, is his house, his home, and it may continue to be such for years without being actually inhabited by him. But an inhabitant of a place is one who ordinarily is personally present there; not merely in itinere, but as a resident and dweller therein. Domicile, as a ques