but nevertheless appropriated the money to his own use and refused on demand to make restitution. Held, that he was guilty of larceny. The court had charged the jury that "if the prosecuting witness returned to the defendant ten twenty-dollar gold pieces under the belief that he was giving him that number of silver pieces, and the defendant so took them, sharing the mistake, and if upon discovering the mistake the defendant knew, or had the means of knowing, who the owner of the gold pieces was, but he thereupon, nevertheless, converted them to his own use, it was larceny." The court above said: "This instruction is objected to on behalf of the appellant and assigned as error. This objection, we think, is not well taken, as the instruction contains a correct statement of the law upon the point developed by the evidence in this case. The money, in excess of that which the appellant was entitled to receive, was taken without the owner's consent, and that which was thus taken was appropriated to the appellant's use with an intent to cheat and fraudulently to deprive the owner thereof. These two elements being both present in this case are sufficient to constitute the crime of larceny, for it will not do to say that the owner parted with his money voluntarily; and therefore there could not have been any unlawful taking. While it may be said it was the physical act of the owner in handing that which was his to another, yet it was lack- | ing his intellectual and intelligent assent to the transfer upon which the consent necessarily depended. And so in a case where money and property is obtained from the owner by anther, upon some false pretense for the temporary use only, with the intent to feloniously appropriate it permanently, the taking thereof, though with the owner's consent, is larceny.' Wolfstein v. Joseph, 13 N. Y. 121; People v. McGanness, 17 id. 630; People v. Call, 1 id. 120." Compare 21 Alb. L. J. 462.

In Commonwealth ex rel. Drummond v. Ashton, Philadelphia Quarter Sessions, 8 W. N. C. 563, the facts were as follows: The relator brought habeas corpus for the custody of his two daughters, aged respectively nine and six years. The respondent was the

unable to see them until they were brought into court under this writ. Mrs. Ashton, the respondent, was about sixty years of age and not in regular employment, but through the assistance of friends was enabled to clothe the children well, and in all respects had given them a good home, sending them to both day and Sunday school, except during the time that they were concealed, which was done, as she alleged, because of her fear that their father would carry them off to Virginia. The father was in receipt of good wages, and testified that he was entirely able and willing to support his children, and there was no evidence whatever affecting his character for soberness and respectability. He had always kept up his incercourse with the children until the time of their concealment. When questioned privately by the judge, the elder child said that she loved her father, but he could not support her, and she wished to remain with her grandmother; the younger said that she loved her grandmother and wanted to stay with her also. The parties were all persons of color. The court said: "There is no doubt that in Pennsylvania there is no flexible seven-year rule or any rule prohibiting the court from always consulting the best welfare of the children. And in this case I am impelled by the evidence to think that this will be best subserved by permitting these children to remain with the grandmother. She has been with them all their lives, and nursed them with a parental fondness, and her love for them is not that of a hired nurse, but a really maternal affection; besides, they are of that sex which renders it peculiarly important that they should have the care of a female. I am satisfied that these children now have a good home, and on the other hand I cannot but feel that, although a change which would place them entirely under the control of the father might result happily, there is a very great risk attending it, and I should be in danger of compelling them to exchange a certainty for an uncertainty. He should, however, be entitled to visit them at all reasonable times; but in view of his avowed intention of taking them out of the State, and the grandmother's natural fear, I deem it proper to stipulate that his visits should

had all lived in the same house together ever since the birth of the elder child and after the death of the mother, which took place in 1877, until some nine months before this hearing, when the relator left the common residence, saying that the children might remain with the respondent. The evidence was conflicting as to whether the father had furnished the children with money and clothing after that time, as well as with reference to an alleged promise made to his wife before her death that he would always permit the children to remain with their grandmother. In December, 1879, the father proposed going to Virginia to visit his mother and sister, who lived there, and stated that he intended to take the children with him, to which the respondent objected; and from that time she had kept them concealed within doors, so that the father had been

some male relation capable of protecting them in case of any attempt to take them by force." Unless the court assumed an agreement by the father to surrender the custody of the children, of which there seems no conclusive evidence, we should re

gard this decision as entirely insupportable by general law, and exceedingly harsh and unjust. In fact we do not remember to have read of a more despotic disregard of a father's natural rights.

In City of Logansport v. Dick, Indiana Supreme Court, June, 1880, 11 Cent. L. J. 148, it was held that the general rule of law that where the work contracted for is not a nuisance per se, the employer of the contractor is not liable to a third person for an injury resulting from the wrongful act or omission of such contractor or his servants, does not ap

sponsible as a trespasser as he who commits the trespass. Jordan v. Wyatt, 4 Gratt. 156. And although the act committed was done without malice, yet being unlawful, the party committing it, or aiding or abetting in its commission, is responsible in damages to the party injured. Parsons v. Harper, 16 Gratt. 64." As the plaintiff got a verdict for $8,000, this was better than a criminal prosecution. But the same practical joke would have been crimi

nal.

Thus, in Fenton's case, 1 Lewin C. C. 179, where the prisoners, in sport, threw heavy stones into a mine, breaking a scaffold, which fell against and upset a corf, in which a miner was descending into the mine, whereby he was killed, they were held guilty of manslaughter. Tindal, C. J., said: "In the present instance the act was one of mere wantonness and sport, but still the act was wrongful, it was a trespass. The only question, therefore, is, whether the death of the party is to be fairly and reasonably considered as a consequence of such wrongful act; if it followed from such wrongful act, as an effect from a cause, the offense is manslaughter; if it is altogether unconnected with it, it is accidental death." The prisoners were sentenced to three months' imprisonment. In Rex v. Powell, 7 C. & P. 641, a lad, as a frolic, without any intent to harm any one, took the trap-stick out of the front part of a cart, in consequence of which it was upset, and the carman who was in it, loading it, was pitched backward on the stones and killed. Held, manslaughter. The prisoner was fined one shilling and discharged. In Ewington's case, 2 Lewin C. C. 217, the prisoners covered and surrounded a drunken man with straw, and threw a shovel of hot cinders upon his belly, whereby he was burned to death. Paterson, J., charged that "if they believed the prisoners really intended to any serious injury to the deceased, though not to kill him, it was murder; but if they believed their intention to have been only to frighten him in sport, it was manslaughter." Verdict, manslaughter. In State v. Roane, 2 Dev. 58, the defendant carelessly discharged a gun, intending only to frighten a supposed trespasser, really the servant of the prisoner, but killing him. Held, manslaughter. This case, although cited by Wharton under "practical jokes," does not answer that description; as also the case cited in 1 East's P. C. 236, where the prisoner ducked a thief, who had picked his pocket, and accidentally drowned him. In Rex v. Martin, 3 C. & P. 211, the prisoner ordered a quartern of gin to drink, and asked a child present if he would have a drop, at the same time putting the glass to the child's mouth, whereupon the child snatched the glass and drank the whole contents, which caused his death. Vaughan, B., said, as this was the act of the child, there must be an acquittal, "but if it had appeared that the prisoner had willingly given a child of this tender age a quartern of gin, out of a sort of brutal fun, and had thereby caused its death, I should, most decidedly, have held that to be manslaughter." Giving one physic, in sport, if fatal, is manslaughter. 1 East's P. C. 264. So, if

do

one in shooting at another's fowls, in mere wanton sport, kills a human being. Id. 255.

In Rex v. Conrahy, 2 Crawf. & Dix, 86, the prisoner and the deceased had been piling turf together, and the former, in sport, threw a piece of turf at the latter, hitting and killing him. Held, no crime. In Rex v. Waters, 6 C. & P. 328, there was testimony that the prisoner, in the course of rough and drunken joking, pushed a boat with his foot, whereby the deceased fell overboard and was drowned. There was also testimony that the push was given by another person. Park, J., said, "if the case had rested on the evidence of the first witness it would not have amounted to manslaughter," and there must be an acquittal. In Ann v. State, 11 Humph. 159, an indictment of a nurse for murder of an infant by administering laudanum, a charge that if the drug was administered to produce unnecessary sleep, and contrary to expectation it produced death, this would be murder, was held errroneous.

In State v. Hardie, 47 Iowa, 647; S. C., 29 Am. Rep. 496, the defendant was held guilty of manslaughter for killing a woman in an attempt to frighten her with a pistol which he supposed to be unloaded. The court said: "If it had been in fact unloaded no homicide would have resulted, but the defendant would have been justly censurable for a most reckless and imprudent act in frightening a woman, by pretending that it was loaded, and that he was about to discharge it at her." "Such conduct is grossly reckless and reprehensible, and without palliation or excuse. Human life is not to be sported with by the use of fire-arms, even though the person using them may have good reason to believe that the weapon used is not loaded, or that being loaded it will do no injury. When persons engage in such reckless sport they should be held liable for the consequences of their acts."

But it would have been no crime if both persons had supposed the pistol to be unloaded. Robertson v. State, 2 Lea. 239; S. C., 31 Am. Rep. 602. The court, however, admit that the prisoner would have been responsible if the act had amounted to an assault, under the circumstances of the Iowa case.

LIMITED LIABILITY OF SHIP-OWNERS.

II.

The vice-chancellor concluded that the part of the statute which relates to the liability of British owners was intended to operate, even as against foreigners, throughout that portion of the sea which lies within three miles of the coast, and that the plaintiffs were therefore entitled to the relief sought.

After the decisions the act of Parliament was amended in 1862 by act 25 and 26 Vict., ch. 63, sec. 54, as already stated, so as to give the benefit of the limited liability under section 504 of the original act to "the owners of any ship, whether British or foreign.

Subsequently the question directly arose whether, under the act, the owners of a British ship could claim a limited liability in case of damage done to a Belgian ship in the Mediterranean, and beyond British territorial jurisdiction, in 1863. The Amalia, 1 Moore's P. C. C. (N. S.) 471.

Dr. Lushington said: "The cases under the law prior

to 1862 are valuable as illustrations, but they are not precedents. Now I have always recognized the full force of this objection, that the British Parliament has no proper authority to legislate for foreigners out of its jurisdiction. No statute ought therefore to be held to apply to foreigners with respect to transactions out of British jurisdiction, unless the words of the statute are perfectly clear; but I never said that if it pleased the British Parliament to make such laws as to foreigners out of the jurisdiction, courts of justice must not execute them; indeed, I said the direct contrary, speaking of the Instance Court of Admiralty, reserving any particular considerations that might attach to the Prize Court.

"Now, fully recognizing the prima facie force of this objection, I do not think it is removed by the ingenious suggestion that this limited liability is a part of the proceedings, and a part of the lex fori.

"But however this may be, if the statute in question gives the right of limited liability to the British owner and the foreign ship-owner alike, if there be perfect reciprocity, then complete justice is done, and the former objection that it was unjust to give relief to the British owner, when a similar relief was denied to the foreigner, is removed."

After an examination of the statute and in view of the fact that the large majority of collisions occur on the high seas, he came to the conclusion that the act was intended to operate for and against both British and foreign vessels in all places, whenever their mutual rights and liabilities should come before a British court for adjudication.

An appeal was taken to the Privy Council, where the decision of Dr. Lushington was affirmed, Lord Chelmsford delivering the opinion.

He said that section 504 of the original act of 1854 clearly applied only to British ships. He then briefly reviewed the decisions under that section, noticing the fact that all the questions which could arise in cases of collisions between British and foreign ships, in which the British ship was in fault, had been decided under that section, except the case now in question; "but against the right of the British owner in such a case to a limitation of his liability, very strong observations had been made by Vice-Chancellor Wood in Cope v. Doherty, which his honor repeated in the General Iron Screw Colliery Co. v. Schurmanns.

"In this state of the decisions, the Merchant Shipping Act Amendment Act, 1862,' passed, and instead of the words, 'no owner of any sea-going ship,' in the 504th section of the original act, introduced the words in the 54th section, upon which all the difficulty has arisen, viz.: 'the owners of any ship, whether British or foreign.'

He considered that the intention of the Legislature, so far as it could be collected from the language employed, seemed to be, to place British and foreign ships on the same footing. With respect to the objection that such legislation would restrict "the common natural rights of foreigners," he said: "What breach of international law, or interference with the natural rights of foreigners is produced by the Legislature saying that all suitors having recourse to our courts, to obtain damages for an injury from a person not actually in fault, but being responsible for the acts of his servant, shall recover only to the value of the thing by which the loss or damage was occasioned, estimated in a particular manner?"

The results of the English cases may be summed up in the following propositions, applicable when the act made no express mention of foreign vessels or foreign

owners:

I. The act did not limit the liability of a foreigner, in case of damage by tort to a foreigner or foreign vessel, on the high seas, although the injured party commenced proceedings for redress in a British court.

II. The act did not limit the liability of a foreigner in case of damage by tort to a British vessel or subject on the high seas, and it made no difference if a limited liability was allowed to British subjects, under the same circumstances in the foreign courts.

III. It was left undecided whether the act limited the liability of a foreigner in case of damage by tort to a British or foreign vessel within the three-mile limit.

IV. The act did not limit the liability of a British subject in a case of damage by tort to a foreigner or foreign vessel on the high seas beyond the three-mile limit.

V. But it did limit the liability of a British subject in a case of damage by tort to a foreigner or foreign vessel within the three-mile limit.

VI. In a case of damage by the tort of a foreigner or foreign vessel to another foreigner or foreign vessel of the same country, the British courts would, on due proof, apply and enforce a law of that country limiting the liability of the tort-feasor.

But when Parliament, in clear and precise language, declared that the limitation of liability should extend to foreign as well as British ships, the courts were bound to obey the law in all cases submitted to them for adjudication.

The only reported case found in this country on the application of the act of Congress to foreign vessels was before Judge Shipman in the United States Circuit Court for the Southern District of New York, in 1876. Levinson v. The Oceanic Steam Navigation Co., 17 Alb. L. J. 285. The opinion seems to have been given at nisi prius.

The action was at common law for personal injuries to the plaintiff and loss of baggage. The plaintiff was a resident of New York; whether he was a citizen does not appear. The defendant was a foreign corporation, and it pleaded in bar, proceedings under the act of 1851, in exoneration of further liability.

Judge Shipman said that the statute of 1851 seemed to him to have been a limitation of the common-law liability of common carriers by sea. "The statute which was passed was the adoption by legislative authority of a new principle of law, so far as this country is concerned, but one which has been the rule in the admiralty courts of foreign countries.

"The question then is, whether this limitation of the liability of common carriers by sea applies only to American vessels, and was merely a municipal regulation, or whether it was the adoption of a general principle.

"Now neither from the statute of 1851, nor upon principle, can I see that this limitation of liability was local, or that the legislation was municipal.

"There was nothing local or municipal in its character. The statute was not in terms confined to American vessels. It had a wider scope, and was a modification by legislative enactment of the common law in regard to a subject over which Congress had jurisdiction.

"If a modification of the common-law liabilities of carriers by land was provided by the statute of the State that had jurisdiction over such corporations, it would have been binding upon all the courts of the State; it would have been the lex fori, the modification would have been a general one, and when an action was brought before a court of the State, the court would have been prohibited from exceeding the liabilities which the Legislature of the State had limited.

"So, this statute being a modification of the common law of a general and universal character, it is binding upon all the courts in this country, and they are limited or restrained from proceeding to give judgment beyond the limit of liability which the Legislature had prescribed in 1851. In other words, the adoption of a

principle of admiralty law cannot be considered as merely local or municipal legislation."

This decision seems to be in conflict with Propositions I and II, above. So far as it proceeds on the ground that the lex fori applies, it is opposed to the express opinion of Vice-Chancellor Wood, Lord Justice Turner, and Dr. Lushington, and to the necessary implication in all the cases where relief was refused to or against foreigners.

In determining the cases to which the United States statute applies, it must be constantly borne in mind that Congress has not the omnipotence of legislation conceded to the British Parliament by the British

courts.

Its constitutional power over the subject under consideration rests on the power given "to regulate commerce with foreign nations, and among the several States." The act can apply only to vessels which are engaged in such commerce. Per Neilson, J., 24 How. (U. S.) 39.

The question has been raised whether the owners of a steam vessel plying between several ports of the same State, carrying merchandise and passengers partly in transit to foreign countries and between different States of the Union, and partly in transit only between the termini of the vessel's route, can have the benefit of the act, as against passengers and the owners of merchandise of the latter description. It has been held by Circuit Judge Sawyer, in the District of California, that the act applies to such a case. Lord v. Goodall, etc., S. S. Co., 4 Sawy. 298.

The argument is that, within the decision in The Daniel Ball, 10 Wall. 565, the vessel was engaged in both inter-State and foreign commerce; that Congress has, by acts of 1838 and 1852, imposed onerous regulations on owners of steam vessels for the safety of merchandise and passengers, to which regulations this vessel was subject, and the act of 1851 may fairly be considered a counterpoise for the benefit of the owners; that upon the whole, the security afforded by the provisions of the statute, if properly enforced, notwithstanding the limitation of liability, is greater than it would be under the full common-law liability of owners without the security provided by Congress. Any party using the vessel for the purposes of domestic commerce enjoys all the benefits afforded by the regulations prescribed, for they inhere in the vessel, and cannot be separated from it. If a party avails himself of those benefits, by the use of the vessel, he must also suffer the inconveniences incident to such use. It would be impracticable for two sovereignties to regulate the same instrument used at the same time in different branches of commerce. The regulation as to all must necessarily fall to that sovereignty which is supreme or paramount as to any part, and having control of the instrument employed. The power to prescribe the conditions upon which the vessel shall be employed as an instrument of inter-State or foreign commerce necessarily carries with it the power to modify the rights of those who use it as well those who at the same time make use of it for the purposes of domestic commerce, as those who employ it in interState or foreign commerce.

"Owners of any canal boat, barge or lighter, and any vessel of any description whatsoever, used in rivers or inland navigation," are expressly excluded from the benefits of the United States Statute. Rev. Stats., § 4289.

The connection in which this term "inland navigation" is used in the act has been considered as throwing some light upon the intent of the law-makers, and as indicating to some extent the class of vessels in their mind. The word used means in this connection employed, and doubtless in the mind of Congress was intended to refer to vessels solely employed in rivers or inland navigation. It was this species of navigation, that is, on rivers and inland, which was intended

to be withdrawn from the limitation of the liability of the owner; and the addition of the term "inland navigation," as an alternative to rivers, was doubtless designed, speaking in a general sense, to embrace all internal waters, either connected with rivers, but which did not, in a geographical or popular sense, fall under that name, or which might not be connected with rivers, but fell within the reason or policy of the exception, such as bays, inlets, straits, etc. Vessels, whatever may be their class or description solely employed upon these waters, are usually employed in the trade and traffic of the localities, carried on chiefly by persons residing upon their borders, and connected with the local business, and without the formalities and precautions observed in regular commercial pursuits with a view to guard against accidents and losses, such as insurance, bills of lading, etc. It was fit and proper, therefore, in this description of trade and traffic that the common-law liabilities of the carrier should remain unaltered.

But the business upon the great lakes lying upon our northern frontiers, carried on between the States and with the foreign nations with which they are connected (and this is the only business which Congress can regulate), is of a very different character. They form a boundary between a foreign country and the United States for hundreds of miles, and considering their great size, the magnitude of their commerce, and the well-known perils incident to lake navigation, Congress could not have classed it with inland navigation, but would have used a more specific designation if it was to be excluded from the limitation of liability. Besides, the decision in the case of the Lexington, burned upon Long Island Sound, led to this act of 1851, and the act was designed to promote the building of ships and to encourage persons engaged in the business of navigation.

For these reasons it is held that the owner of a vessel plying between Buffalo and Detroit, on the great lakes, is not within the exception of section 4289, but is entitled to the benefit of the act. Moore v. American Transportation Co., 24 How. 1; Chisholm v. Northern Transportation Co., 61 Barb. 363.

And the owner of a tug towing a boat from the New York to the Canadian shore of the St. Lawrence is entitled to the benefit of the act. Baird v. Daly, 4 Lans. 426 (reversed on other grounds, 57 N. Y. 236).

So is the owner of a vessel navigating Long Island Sound between two ports in different States, although the loss is caused by a fire at dock. Knowlton v. Prov. & N. Y. S. S. Co., 1 Jones & Sp. 370. See, also, Headrick v. Va. & Tenn. Air Line R. W. Co., 48 Ga. 545.

But the owner of a vessel plying on the Mississippi river, although between two termini in different States, is within the very words of the exception, and is not entitled to the benefit of the act. The War Eagle, 6 Biss. 354.

There is another limitation of the class of persons entitled to the benefit of the act. They must be the owners or charterers who man, victual and navigate the vessel at their own expense or by their own procurement. §§ 4282, 4283, 4286.

Accordingly, where a carrier in the course of transportation pursuant to his contract places the merchandise on a vessel which he neither owns nor charters, and while on board such vessel goods are lost or damaged in the manner specified in the act, he is liable to the full extent of the loss, and cannot claim the benefit of the statute. Rice v. Ontario Steamboat Co., 56 Barb. 384; Hill Mfg. Co. v. Boston & Lowell R. R. Corp., 104 Mass. 122.

But of course a railroad company owning a vessel is entitled to the benefit of the act equally with any other corporation or individual. London & S. W. R. W. Co. v. James, L. R., 8 Ch. App. 241; Headrick v. Va. & Tenn. Air Line R. W. Co., 48 Ga. 545.