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but nevertheless appropriated the money to his own unable to see them until they were brought into use and refused on demand to make restitution. court under this writ. Mrs. Ashton, the respondent, Held, that he was guilty of larceny. The court had was about sixty years of age and not in regular emcharged the jury that “if the prosecuting witness ployment, but through the assistance of friends was returned to the defendant ten twenty-dollar gold enabled to clothe the children well, and in all repieces under the belief that he was giving him that spects had given them a good home, sending them number of silver pieces, and the defendant so took to both day and Sunday school, except during the them, sharing the mistake, and if upon discovering time that they were concealed, which was done, as the mistake the defendant knew, or had the means she alleged, because of her fear that their father of knowing, who the owner of the gold pieces was, would carry them off to Virginia. The father was but he thereupon, nevertheless, converted them to in receipt of good wages, and testified that he was his own use, it was larceny.” The court above said: entirely able and willing to support his children, "This instruction is objected to on behalf of the and there was no evidence whatever affecting his appellant and assigned as error. This objection, we character for soberness and respectability. He had think, is not well taken, as the instruction con- always kept up his incercourse with the children tains a correct statement of the law upon the point until the time of their concealment. developed by the evidence in this case. The money, tioned privately by the judge, the elder child said in excess of that which the appellant was entitled that she loved her father, but he could not support to receive, was taken without the owner's consent, her, and she wished to remain with her grandand that which was thus taken was appropriated to mother; the younger said that she loved her grandthe appellant's use with an intent to cheat and mother and wanted to stay with her also. The parfraudulently to deprive the owner thereof. These ties were all persons of color. The court said: two elements being both present in this case are There is no doubt that in Pennsylvania there is sufficient to constitute the crime of larceny, for it no flexible seven-year rule or any rule prohibiting will not do to say that the owner parted with his the court from always consulting the best welfare money voluntarily; and therefore there could not of the children. And in this case I am impelled by have been any unlawful taking. While it may be the evidence to think that this will be best subserved said it was the physical act of the owner in hand by permitting these children to remain with the ing that which was his to another, yet it was lack-grandmother. She has been with them all their ing his intellectual and intelligent assent to the lives, and nursed them with a parental fondness, transfer upon which the consent necessarily de- and her love for them is not that of a hired nurse, pended. And so in a case 'where money and prop- but a really maternal affection; besides, they are of erty is obtained from the owner by anther, upon that sex which renders it peculiarly important that some false pretense for the temporary use only, with they should have the care of a female. I am satisthe intent to feloniously appropriate it permanently,fied that these children now have a good home, and the taking thereof, though with the owner's con- on the other hand I cannot but feel that, although sent, is larceny.' Wolfstein v. Joseph, 13 N. Y. 121; a change which would place them entirely under the People v. McGanness, 17 id. 630; People v. Call, 1 control of the father might result happily, there is id. 120.” Compare 21 Alb. L. J. 462.
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 entiIn Commonwealth ex rel. Drummond v. Ashton, Phil
tled to visit them at all reasonable times; but in adelphia Quarter Sessions, 8 W. N. C. 563, the facts
view of his avowed intention of taking them out of were as follows: The relator brought habeas corpus
the State, and the grandmother's natural fear, I for the custody of his two daughters, aged respectively nine and six years. The respondent was the only be in the presence of the grandmother and
deem it proper to stipulate that his visits should maternal grandmother of the children, and they
some male relation capable of protecting them in had all lived in the same house together ever since the birth of the elder child and after the death of
case of any attempt to take them by force.” Unless
the court assumed an agreement by the father to the mother, which took place in 1877, until some
surrender the custody of the children, of which nine months before this hearing, when the relator
there seems no conclusive evidence, we should releft the common residence, saying that the children might remain with the respondent. The evidence gard this decision as entirely insupportable by gen
eral law, and exceedingly harsh and unjust. In was conflicting as to whether the father had fur
fact we do not remember to have read of a more nished the children with money and clothing after that time, as well as with reference to an alleged
despotic disregard of a father's natural rights. promise made to his wife before her death that he would always permit the children to remain with In City of Logansport v. Dick, Indiana Supreme their grandmother. In December, 1879, the father Court, June, 1880, 11 Cent. L. J. 148, it was held proposed going to Virginia to visit his mother and that the general rule of law that where the work sister, who lived there, and stated that he intended contracted for is not a nuisance per se, the employer to take the children with him, to which the respond of the contractor is not liable to a third person for ent objected; and from that time she had kept them an injury resulting from the wrongful act or omisconcealed within doors, so that the father had been sion of such contractor or his servants, does not apply to municipal corporations, so as to relieve them quite, makes the city the insurer of the lives of inof the duty of keeping their streets in a safe condi- dividuals against defects in her streets." We think tion for travel; and where a city contracted with municipalities should be bound to care in the conanother for the putting in of a system of water- duct of operations intrinsically dangerous, in the works, during the progess of which work the plaint- work of repairing their streets, and that they should iff's intestate was killed by the result of a blast not be enabled to evade that responsibility by letcarelessly made by the contractor, the city was lia- ting the work to contractors. See note to City of ble to respond in damages for such injury. After Erie v. Caulkins (85 Penn. St. 247), 27 Am. Rep. admitting that the general rule is, that where the 647. This idea is conveyed in Storrs v. Utica, 17 work contracted for is not a nuisance per se, the em- N. Y. 104; City of Detroit v. Corey, 9 Mich. 165, ployer of the contractor will not be liable for inju- 187; City of Joliet v. Harwood, 86 Ill. 110; S. C., 29 ries resulting from the carelessness of himself or Am. Rep. 17; Palmer v. City of Lincoln, 5 Neb. 136, his servants, the court continue: “But it seems to S. C., 25 Am. Rep. 470. On the general rule conus that in view of the exclusive power conferred, ceded by the court in the principal case, see Harriand of the correlative duty necessarily imposed son v. Collins, 86 Penn. St. 153; S. C., 27 Am. Rep. upon the appellant over the streets, alleys and high-699, and note, 702. We think the principal case ways within its corporate limits by the legislation of well adjudged. this State providing for the incorporation of cities, the appellant could not and ought not to be allowed
PRACTICAL JOKES. to avoid the imperative duty, which it owed to the public, to keep its streets, alleys and highways in a THE law holds practical jokers criminally, and safe condition for use in the usual manner by travellers, nor to escape responsibility for its neglect or fects of their playful pranks. failure to perform such duty, upon the plea that it In Daingerfield v. Thompson, a civil action of damhad entered into a contract with another person for ages, decided recently by the Court of Appeals of the performance of the work, which rendered such Virginia, the defendant was the keeper of a restauuse of the street, alley or highway, unsafe or dan-rant, and about 11 P. M., after he had closed for the gerous to the travelling public. It can not be said, night, hearing a noise outside, was on the point of we think, that the appellant's contract with Far- opening the door, when he was shot through the rington or his assignors for the construction and right foot with a pistol ball which had penetrated completion of its water-works, as found by the jury, the door from the outside. It appeared that several could or did relieve the appellant of its legal duty persons being on the street waiting for the plaintiff to keep those streets, wherein the water-pipes were to let them in, the defendant said to one of them being laid, in such safe condition for use in the who had a pistol, “Let us give him a salute." To usual manner, as that its inhabitants and the gen- which the latter, one Harrison, replied, “I'll do it," eral public might safely and conveniently pass and and immediately fired. When the parties entered the repass over, along and across such streets. Not- restaurant and found how the " salute” had resulted, withstanding such contract, the appellant stood Harrison was greatly alarmed and said to the defendcharged by law with a duty, and could not relieve ant: “This would not have happened if you hadn't itself by that or any other contract of such duty in told me to fire a salute." To which defendant anthe care and control of its streets, in and through swered: “I didn't suppose you were d-d fool which its water-works were in process of construc-enough to fire into the house - I thought you'd fire tion. If in the progress of the work, blasting was into the air.” There was an ordinance of the city dangerous and unnecessary, the appellant's duty to prohibiting the discharge of fire-arms in the street. its inhabitants and the public required that it should “The willful firing of a pistol in the street of a city, prevent such blasting; and if on the other hand, whether maliciously or not,” said Christian, J., "is the blasting was necessary, and though dangerous, of itself an unlawful act, and the consequence of the danger could be averted by the use of proper such unlawful act must be visited upon those who precautions, the appellant's plain duty was to re- commit it or instigate it. Safety and protection to quire its contractor to use such precautions. The society require that both the actors and instigators appellant could not, by any contract it might make, of unlawful acts should be held to strict accountaavoid its liability to third persons for injury or bility for the consequences of their violation of law. death, resulting from a breach of its duty in the It is no excuse or justification of Daingerfield to care and control of its streets. Grove v. City of Fort say that he did not fire the pistol which caused the Wayne, 45 Ind. 429; Town of Centerville v. Woods, injury. He was the aider and abettor and insti57 id. 192.” The editor of the Central Law Journal gator of Harrison, who fired the fatal shot, and who says of this case: “All the decisions, except this himself admits that it was fired at his advice and one, recognize the exigency that may arise in pub- instigation. And it is no excuse or justification to lic improvements, or emergencies of an exclusive say that he simply told him to fire a salute, and that temporary occupancy in the street which ex necessi- he expected him (Harrison) to fire in the air. The tate rei render the way unsafe and inconvenient, and firing of the pistol was in itself an unlawful act, that the private right must yield to the public neces- and advised and instigated by him, he must take sity. The doctrine of the above case goes beyond the consequences of the result. He who commands the authorities of other courts and nearly if not or procures another to do an unlawful act is as re
sponsible as a trespasser as he who commits the one in shooting at another's fowls, in mere wanton trespass. Jordan v. Wyatt, 4 Gratt. 156. And al- sport, kills a human being. Id: 255. though the act committed was done without mal- In Rex v. Conrahy, 2 Crawf. & Dix, 86, the prisice, yet being unlawful, the party committing it, or oner and the deceased had been piling turf together, aiding or abetting in its commission, is responsible and the former, in sport, threw a piece of turf at in damages to the party injured. Parsons v. Har- the latter, hitting and killing him. Held, no crime. per, 16 Gratt. 64.” As the plaintiff got a verdict for In Rex v. Waters, 6 C. & P. 328, there was testimony $8,000, this was better than a criminal prosecution. that the prisoner, in the course of rough and drunken But the same practical joke would have been crimi-joking, pushed a boat with his foot, whereby the nal.
deceased fell overboard and was drowned. There Thus, in Fenton's case, 1 Lewin C. C. 179, where was also testimony that the push was given by anthe prisoners, in sport, threw heavy stones into a other person. Park, J., said, “if the case had mine, breaking a scaffold, which fell against and rested on the evidence of the first witness it would upset a corf, in which a miner was descending into not have amounted to manslaughter," and there the mine, whereby he was killed, they were held must be an acquittal. In Ann v. State, 11 Humph. guilty of manslaughter. Tindal, C. J., said: “In 159, an indictment of a nurse for murder of an inthe present instance the act was one of mere wan- fant by administering laudanum, a charge that if tonness and sport, but still the act was wrongful, it the drug was administered to produce unnecessary was a trespass. The only question, therefore, is, sleep, and contrary to expectation it produced whether the death of the party is to be fairly and death, this would be murder, was held errroneous. reasonably considered as a consequence of such In State v. Hardie, 47 Iowa, 647;. S. C., 29 Am. wrongful act; if it followed from such wrongful act, Rep. 496, the defendant was held guilty of manas an effect from a cause, the offense is man- slaughter for killing a woman in an attempt to slaughter; if it is altogether unconnected with it, frighten her with a pistol which le supposed to be it is accidental death.” The prisoners were sen- unloaded. The court said: “If it had been in fact tenced to three months' imprisonment. In Rex v. unloaded no homicide would have resulted, but the Powell, 7 C. & P. 641, a lad, as a frolic, without any defendant would have been justly censurable for a intent to harm any one, took the trap-stick out of most reckless and imprudent act in frightening a the front part of a cart, in consequence of which it woman, by pretending that it was loaded, and that was upset, and the carman who was in it, load - he was about to discharge it at her.”
"Such coning it, was pitched backward on the stones and duct is grossly reckless and reprehensible, and withkilled. Held, manslaughter. The prisoner was fined out palliation or excuse. Human life is not to be one shilling and discharged. In Erington's case, 2 sported with by the use of fire-arms, even though Lewin C. C. 217, the prisoners covered and sur- the person using them may have good reason to berounded a drunken man with straw, and threw a lieve that the weapon used is not loaded, or that shovel of hot cinders upon his belly, whereby he being loaded it will do no injury. When persons was burned to death. Paterson, J., charged that engage in such reckless sport they should be held "if they believed the prisoners really intended to liable for the consequences of their acts.” do any serious injury to the deceased, though not But it would have been no crime if both persons to kill him, it was murder; but if they believed had supposed the pistol to be unloaded. Robertson their intention to have been only to frighten him in v. State, 2 Lea. 239; S. C., 31 Am. Rep. 602. The sport, it was manslaughter.” Verdict, manslaughter.court, however, admit that the prisoner would In State v. Roane, 2 Dev. 58, the defendant care- have been responsible if the act had amounted lessly discharged a gun, intending only to frighten to an assault, under the circumstances of the Iowa a supposed trespasser, really the servant of the pris- case. oner, but killing him. Held, manslaughter. This case, although cited by Wharton under "
LIMITED LIABILITY OF SHIP-OWNERS. jokes,” does not answer that description; as also the
II. case cited in 1 East's P. C. 236, where the prisoner ducked a thief, who had picked his pocket, and ac
The vice-chancellor concluded that the part of the
statute which relates to the liability of British owners cidentally drowned him. In Rex v. Martin, 3 C. &
was intended to operate, even as against foreigners, P. 211, the prisoner ordered a quartern of gin to
throughout that portion of the sea which lies within drink, and asked a child present if he would have three miles of the coast, and that the plaintiffs were a drop, at the same time putting the glass to the therefore entitled to the relief sought. child's mouth, whereupon the child snatched the
After the decisions the act of Parliament was amended
in 1862 by act 25 and 26 Vict., ch. 63, seo. 64, as already glass and drank the whole contents, which caused
stated, so as to give the benefit of the limited liability his death. Vaughan, B., said, as this was the act
under section 504 of the original act to "the owners of of the child, there must be an acquittal, “but if it any ship, whether British or foreign. had appeared that the prisoner had willingly given Subsequeutly the question directly arose whether, a child of this tender age a quartern of gin, out of under the act, the owners of a British ship could claim a sort of brutal fun, and had thereby caused its
a limited liability in case of damage done to a Belgian
ship in the Mediterranean, and beyond British terrideath, I should, most decidedly, have held that to
torial jurisdiction, in 1863. The Amalia, 1 Moore's P. be manslaughter.” Giving one physic, in sport, if C. C. (N. S.) 471. fatal, is manslaughter. 1 East's P. C. 264.
Dr. Lushington said: “The cases under the law prior
to 1862 are valuable as illustrations, but they are not II, The act did not limit the liability of a foreigner precedents. Now I have always recognized the full in case of damage by tort to a British vessel or subject force of this objection, that the British Parliament on the high seas, and it made no difference if a limited bas no proper authority to legislate for foreigners out liability was allowed to British subjects, under the of its jurisdiction. No statute ought therefore to be same circumstances in the foreign courts. held to apply to foreigners with respect to transactions 111. It was left undecided whether the act limited out of British jurisdiction, unless the words of the the liability of a foreigner in case of damage by tort to statute are perfectly clear; but I never said that if it a British or foreign vessel within the three-mile pleased the British Parliament to make such laws as to limit. foreigners out of the jurisdiction, courts of jus- IV. The act did not limit the liability of a British tice must not execute them; indeed, I said the direct subject in a case of damage by tort to a foreigner or contrary, speaking of the Instance Court of Admi
foreign vessel on the high seas beyond the three-mile ralty, reserving any particular considerations that limit. might attach to the Prize Court.
V. But it did limit the liability of a Britisb subject “Now, fully recognizing the prima facie force of in a case of damage by tort to a foreigner or foreign this objection, I do not think it is removed by the vessel within the three-mile limit. iugenious suggestion that this limited liability is a part VI. In a case of damage by the tort of a foreigner of the proceedings, and a part of the lex fori.
or foreign vessel to another foreigner or foreign vessel “But however this may be, if the statute in question of the same country, the British courts would, on due gives the right of limited liability to the British owner proof, apply and enforce a law of that country limiting and the foreign ship-owner alike, if there be perfect the liability of the tort-feasor. reciprocity, then complete justice is done, and the But when Parliament, in clear and precise language, former objection that it was unjust to give relief to declared that the limitation of liability should extend the British owner, when a similar relief was denied to to foreign as well as British ships, the courts were the foreigner, is removed."
bound to obey the law in all cases submitted to them After an examination of the statute and in view of for adjudication. the fact that the large majority of collisions occur on The only reported case found in this country on the the high seas, he came to the conclusion that the act application of the act of Congress to foreign vessels was intended to operate for and against both British was before Judge Shipman in the United States Cirand foreign vessels in all places, whenever their mutual cuit Court for the Southern District of New York, in rights and liabilities should come before a British court 1876. Levinson v. The Oceanic Steam Navigation Co., for adjudication.
17 Alb. L. J. 285. The opinion seems to have been An appeal was taken to the Privy Council, where the given at nisi prius. decision of Dr. Lushington was affirmed, Lord Chelms- The action was at common law for personal injuries ford delivering the opinion.
to the plaintiff and loss of baggage. The plaintiff was He said that section 504 of the original act of 1854 a resident of New York; whether he was a citizen clearly applied only to British ships. He then briefly does not appear. The defendant was a foreign corporeviewed the decisions under that section, noticing the ration, and it pleaded in bar, proceedings under the fact that all the questions which could arise in cases of act of 1851, in exoneration of further liability. collisions between British and foreign ships, in which Judge Shipman said that the statute of 1851 seemed the British ship was in fault, had been decided under to him to have been a limitation of the common-law that section, except the case now in question; “but liability of common carriers by sea. "The statute against the right of the British owner in such a case which was passed was the adoption by legislative auto a limitation of his liability, very strong observations thority of a new principle of law, so far as this country had been made by Vice-Chancellor Wood in Cope v. is concerned, but one which has been the rule in the Doherty, which his honor repeated in the General Iron admiralty courts of foreign countries. Screw Colliery Co. v. Schurmanns.
“The question then is, whether this limitation of the “In this state of the decisions, the Merchant Ship- liability of common carriers by sea applies only to ping Act Amendment Act, 1862,' passed, and instead American vessels, and was merely a municipal regulaof the words, 'no owner of any sea-going ship,' in the tion, or whether it was the adoption of a general prin504th section of the original act, introduced the words | ciple. in the 54th section, upon which all the difficulty has “Now neither from the statute of 1851, nor upon arisen, viz. : ‘the owners of any ship, whether British principle, can I see that this limitation of liability was or foreign.'
local, or that the legislation was municipal. He considered that the intention of the Legislature, “There was nothing local or municipal in its charso far as it could be collected from the language em- acter. The statute was not in terms confined to ployed, seemed to be, to place British and foreign ships American vessels. It had a wider scope, and was a on the same footing. With respect to the objection modification by legislative enactment of the common that such legislation would restrict “the common law in regard to a subject over which Congress had natural rights of foreigners," he said: “What breach jurisdiction. of international law, or interference with the natural “If a modification of the common-law liabilities of rights of foreigners is produced by the Legislature say- carriers by land was provided by the statute of the ing that all suitors having recourse to our courts, to State that had jurisdiction over such corporations, it obtain damages for an injury from a person not actu- would have been biuding upon all the courts of the ally in fault, but being respousible for the acts of his State; it would have beeu the lex fori, the modificaservant, shall recover only to the value of the thing by tiou would have been a general one, and wben an which the loss or damage was occasioned, estimated in action was brought before a court of the State, the a particular manner?"
court would have been prohibited from exceeding the The results of the English cases may be summed up liabilities which the Legislature of the State had in the following propositions, applicable when the act limited. made no express mention of foreign vessels or foreign “So, this statute being a modification of the common
law of a general and universal character, it is binding I. The act did not limit the liability of a foreigner, upon all the courts in this country, and they are limin case of damage by tort to a foreigner or foreign ves- ited or restrained from proceeding to give judgment sel, on the high seas, although the injured party com- beyoud the limit of liability which the Legislature had menced proceedings for redress in a British court. prescribed in 1851. In other words, the adoption of a
principle of admiralty law cannot be considered as to be withdrawn from the limitation of the liability merely local or municipal legislation."
of the owner; and the addition of the term “inland This decision seems to be in conflict with Proposi- navigation," as an alternative to rivers, was doubtless tions I and II, above. So far as it proceeds on the designed, speaking in a general sense, to embrace all ground that the lex fori applies, it is opposed to the internal waters, either connected with rivers, but express opinion of Vice-Chancellor Wood, Lord Jus- which did not, in a geographical or popular sense, fall tice Turner, and Dr. Lushington, and to the necessary under that name, or which might not be connected implication in all the cases where relief was refused to with rivers, but fell within the reason or policy or against foreigners.
of the exception, such as bays, inlets, straits, eto. In determining the cases to which the Uni States Vessels, whatever may be their class or description statute applies, it must be constantly borne in mind solely employed upon these waters, are usually emthat Congress has not the omnipotence of legislation ployed in the trade and traffic of the localities, carried conceded to the British Parliament by the British on chiefly by persons residing upon their borders, and courts. Its constitutional power over the subject connected with the local business, and without the under consideration rests on the power given to formalities and precautions observed in regular comregulate commerce with foreign nations, and among mercial pursuits with a view to guard against accidents the several States.” The act can apply only to vessels and losses, such as insurance, bills of lading, etc. It which are engaged in such commerce. Per Neilson, was fit and proper, therefore, in this description of J., 24 How. (U. S.) 39.
trade and traffic that the common-law liabilities of the The question has been raised whether the owners of carrier should remain unaltered. a steam vessel plying between several ports of the But the business upon the great lakes lying upon our same State, carrying merchandise and passengers northern frontiers, carried on between the States and partly in transit to foreign countries and between dif- with the foreign nations with which they are conferent States of the Union, and partly in transit only nected (and this is the only business which Congress between the termini of the vessel's route, can have can regulate), is of a very different character. They the benefit of the act, as against passengers and the form a boundary between a foreign country and the owners of merchandise of the latter description. It United States for hundreds of miles, and considering has been held by Circuit Judge Sawyer, in the District their great size, the magnitude of their commerce, and of California, that the act applies to such a case. Lord the well-known perils incident to lake navigatiou, v. Goodall, etc., S. S. Co., 4 Sawy. 298.
Congress could not have classed it with inland navigaThe argument is that, within the decision in The tion, but would have used a more specific designation Daniel Ball, 10 Wall. 565, the vessel was engaged in it it was to be excluded from the limitation of liabilboth inter-State and foreign commerce; that Congress ity. Besides, the decision in the case of the Lexington, has, by acts of 1838 and 1852, imposed onerous regu- burned upon Long Island Sound, led to this act of lations on owners of steam vessels for the safety of 1851, and the act was designed to promote the building merchandise and passengers, to which regulations this of ships and to encourage persons engaged in the busivessel was subject, and the act of 1851 may fairly be ness of navigation. considered a counterpoise for the benefit of the own- For these reasons it is hold that the owner of a vessel ers; that upon the whole, the security afforded by the plying between Buffalo and Detroit, on the great lakes, provisions of the statute, if properly enforced, not- is not within the exception of section 4289, but is entiwithstanding the limitation of liability, is greater tled to the benefit of the act. Moore v. American than it would be under the full common-law liability Transportation Co., 24 How. 1; Chisholm v. Northof owners without the security provided by Congress. ern Transportation Co., 61 Barb. 363. Any party using the vessel for the purposes of domes- And the owner of a tug towing a boat from the New tic commerce enjoys all the benefits afforded by the York to the Canadian shore of the St. Lawrence is enregulations prescribed, for they inhere in the vessel, titled to the benefit of the act. Baird v. Daly, 4 Lans. and cannot be separated from it. If a party avails 426 (reversed on other grounds, 57 N. Y. 236). himself of those benefits, by the use of the vessel, he So is the owner of a vessel navigating Long Island must also suffer the inconveniences incident to such Sound between two ports in different States, although use. It would be impracticable for two sovereignties the loss is caused by a fire at dock. Knowlton v. Prov. to regulate the same instrument used at the same time & N. Y. S. S. Co., 1 Jones & Sp. 370. See, also, Headin different branches of commerce. The regulation as rick v. Va. & Tenn. Air Line R. W. Co., 48 Ga. 545. to all must necessarily fall to that sovereignty which But the owner of a vessel plying ou the Mississippi is supreme or paramount as to any part, and having river, although between two termini in different control of the instrument employed. The power to States, is within the very words of the exception, and prescribe the conditions upon which the vessel shall be is not entitled to the benefit of the act. The War employed as an instrument of inter-State or foreign Eagle, 6 Biss. 354. commerce necessarily carries with it the power to There is another limitation of the class of persous modify the rights of those who use it - as well those entitled to the benefit of the act. They must be the who at the same time make use of it for the purposes owners or charterers who man, victual and navigate of domestic commerce, as those who employ it in inter- | the vessel at their own expense or by their own proState or foreign commerce.
curement. $$ 4282, 4283, 4286. “Owners of any canal boat, barge or lighter, and Accordingly, where a carrier in the course of transany vessel of any description whatsoever, used in riv- portation pursuant to his contract places the merchaners or inland navigation,” are expressly excluded from dise on a vessel which he neither owns nor charters, the benefits of the United States Statute. Rev. Stats., and while on board such vessel goods are lost or dam$4289.
aged in the manner specified in the act, he is liable to The connection in which this term “inland naviga- the full extent of the loss, and cannot claim the benefit tion" is used in the act has been considered as throw- of the statute. Rice v. Ontario Steamboat Co., 56 Barb. ing some light upon the intent of the law-makers, and 384; Hill Mfg. Co. v. Boston & Lowell R. R. Corp., 104 as indicating to some extent the class of vessels in Mass. 122. their mind. The word used means in this connection But of course a railroad company owning a vessel is employed, and doubtless in the mind of Congress was entitled to the benefit of the act equally with any intended to refer to vessels solely employed in rivers other corporation or individual. London & S. W. R. or inland navigation. It was this species of naviga- W. Co. v James, L. R., 8 Ch. App. 241; Headrick v. tion, that is, on rivers and inland, which was intended Va. & Tenn. Air Line R. W. Co., 48 Ga. 545.