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C. C. A. 666, 22 U. S. App. 220, 61 | so seized and subjected to this claim only ,05; nor the effect or validity of a chat- ! at the instance of the plaintiff and solely nortgage, as in Wilson v. Perrin, 11 C. for its own benefit. There was evidence that A. 66, 22 U. S. App. 514, 62 Fed. 629 : the plaintiff's agent was not only in the posor the title of a foreign receiver to local session of the replevied lumber, but of the property under a general assignment, as in entire cargo, as well as the barge. Whether Zacher v. Fidelity Trust & s. V. Co. 45 C. it be regarded as in possession of the reC. A. 480, 106 Fed. 593; nor the extent of plevied lumber as owner, or only as a bailee the powers and liability of a local munici-or custodian, it was under obligation to propal corporation, as in Detroit v. Osborne, 135 tect it against loss or injury, and in taking U. S. 492, 34 L. ed. 260, 10 Sup. Ct. Rep. it off the submerged boat it was but saving 1012. The obligation of the plaintiff in a its own or that committed to it as a bailee. replevin suit does not become impossible of Fleming v. Lay, 48 C. C. A. 748, 109 Fed. performance by the loss or destruction of the 952, 956. But whatever its rights against goods replevied, because his obligation is an the barge and the remainder of the cargo, alternative one, and, if it has become impos- it could not have a salvor's lien against its sible to return to the defendant the goods own property or that in its care which it wrongfully taken, it is not impossible to pay was under legal obligation to save. Saltheir value. And under Shannon's Code vage is a reward for services successfully (Tenn.) 8 5144, he is given the option to re- rendered in saving property from maritime turn the goods or pay their value.

danger by one under no obligation or duty Nor is such a plaintiff a mere custodian, | to render the service. The Neptune, 1 Hagg. responsible only for negligence. As we have Adm. 227, 236; Firemen's Charitable Asso. seen, replevin is a redelivery to the owner v. Ross, 9 C. C. A. 70, 13 U. S. App. 643, 60 of goods wrongfully taken or detained. If Fed. 456; The Lydia A. Harvey, 84 Fed. in fact he is not the owner, his claim was 1000; Murphy v. The Suliote, 5 Fed. 99 : groundless, and he must restore that wrong. The Nebraska, 21 C. C. A. 448, 24 U. S. fully taken, and will not be heard to say App. 559, 75 Fed. 598. The barge upon that he held at the risk of the true owner, which this lumber was situated was sunk at and was liable only for negligence as a re- the bank, and in such shallow water that ceiver or other bailee. But if we shall re only about half of the entire cargo of lumber gard the case of Bcbo v. Patton, 6 Heisk. was submerged. By the services of the 172, 19 Am. Rep. 593, as a case which we plaintiff the barge was raised, the lumber should follow as defining the local law in taken off, and reladen upon another barge reference to replevin bonds instituted under chartered by the plaintiff. the Code provisions of Tennessee, that deci- Conceding, for the purposes of this case sion is by no means controlling in the case only, that the plaintiff was wholly without now under consideration. The property re- fault, and that under the case of Bobo r. plevied in that suit was an animal, which Patton the injury sustained by the replevied died from disease contracted without plain- lumber should be regarded as a loss or detiff's fault or agency. This was held to restruction pro tanto, and allowance made for lieve the plaintiff from liability to return, this in the recovery against plaintiff for that being, of course, impossible, and to also damages for detention, the question remains relieve him from his obligation to pay her whether the subsequent carrying of the lunvalue. The death of the animal wholly ber to Cairo, and there enforcing against it without the agency or fault of the plaintiff both a salvage and towage claim, by means was, in fact, a blameless misfortune. But of which the lumber has passed beyond the in the case at bar the plaintiff, through his control of the plaintiff, is aadischarge of his own act and active agency, elected to cause liability to pay the value of defendant's lum. the goods replevied to be exposed to sale for ber. What plaintiff did in saving the dethe satisfa ion of an alleged salvor's lien in fendant's lumber from los and injury by its own favor. How can it be said that this water it was under obligation to do as one in property has been lost or destroyed or taken possession under claim to ownership. What from him without any active agency of his it did in carrying it, after it was saved, to own? Quite another question might arise if Cairo, and there causing it to be seized and this proceeding had been adverse to the sold, it did voluntarily and in its own explaintiff. The proceeding was one in rem. clusive interest. The obligation to return The defendant did not appear or defend, so the replevied lumber or pay its value and that no judgment in personam was rendered. damages for detention has not become impos

Considering the conclusiveness of the sible through an "act of God, or of the obliproceeding as to the lumber, and its liabil. gee, or of the law,” except as the law was ity as a whole to the salvage and towage put in force by the plaintiff for its own purclaim asserted by the plaintiff as sole libel. pose. An obligation which is excused by act lant, the fact remains that the lumber was of law is where a covenant or condition sub

sequent, which is law when made, becomes We, the jury, find for the defendant:
subsequently unlawful by a change in the 235,000 feet of cottonwood lumber
law. Thus, when property was conveyed to at $12.00 per thousand, amount-
be used for burial purposes, and such use ing to

$2,820 00 becomes subsequently unlawful, the forfei- | Interest from January 22, 1902, to ture is excused. Mahoning County v. Young,

date

241 11 8 C. C. A. 27, 16 U. S. App. 253, 59 Fed. 96. Other illustrations are found in Doe ex dem.

$3,061 11 Anglesea v. Rugeley, 6 Q. B. 107; Brewster We also fix damages at..

822 50 v. Kitchin, 1 Ld. Raym. 317, 321; Brick Presby. Church v. New York, 5 Cow. 538.

Total

$3,883 61 We have not been referred to any case which We arrive at the damage in the following gives sanction to the claim that a plaintiff manner: in replevin may relieve himself from his ob- | 117,500 feet, at $18.00 per thouligation to return or pay for property re

sand

.$2,115 00 plevied in case he is cast in the suit, when 117,500 feet, at $13.00 per thou

sand he, as in this case, by his own institution of

1,527 50 a suit in rem disables himself from the

Total duty of returning. In Washington Ice Co.

$3,642 50

2.820 00 v. Webster, 68 Me. 449, taxes assessed Less value at time of seizure against the defendant on the replevied prop

Damage

.$ 822 50 erty were paid by the plaintiff voluntarily, no seizure having been made to enforce col It thus appears from the verdict that the lection. The payment was disallowed in re jury found that one half of the lumber seized duction of damages for detention.

had not been damaged at all, and that the The judgment below was for the value of other half had sustained a damage of $5 per the lumber at the time it was taken, with in- thousand, which reduced the value of the terest. That much was in strict accordance lumber at date of trial by $587.50, and this with $ 5144, Shannon's Code (Tenn.) as con was accordingly deducted from the damstrued in Mayberry v. Cliffe, 7 Coldw. 117. ages for detention. The plaintiff has thus The jury also found, upon evidence, that been allowed to reduce the damages, rethere had been a rise in the value, and they coverable otherwise by the amount of accordingly assessed the difference between the injury done the lumber by the sinking the value when seized and the value at date of the barge while it was in its possession. of trial as damages for detention. This, too, This was admissible only upon the theory is in accord with the construction placed on

that plaintiff was liable only for a loss due the act by the case cited above. But the

to its own negligent act. The plaintiff in court told the jury that they might miti

error cannot complain of this, and the de

fendant in error has not. gate damages for etention if they found that this lumber had been damaged by the

In our view of the case, the plaintiff has sinking of the barge, without fault of the to, and the judgment must be affirmed.

obtained a better result than it was entitled plaintiff. The jury rendered a special verdict in these words and figures:

Petition for rehearing denied.

TENNESSEE SUPREME COURT.

John PRESSLY, Appt.,

STATE of Tennessee.

(........ Tenn.........)

as

writing is addressed, to her minor child. whenever he may desire to do so, will not bar a prosecution of such person for furnishing liquor to minors without the parent's consent, since such consent would frustrate

the purpose of the statute. 2. Where a statute prescribes a fine

the punishment for giving liquor to minors, the court has no authority to im

1. A general consent in writing, by a mother, that liquor may

be furnished by the person to whom the

pose imprisonment therefor. 3. The appellate court may correct a

judgment which erroneously imposes imprisonment in addition to a fine for a statutory misdemeanor, by striking out the erroneous portion and affirming the judgment as modified.

NOTE.-For a case in this series holding that written authority from parent or guardian for selling or furnishing intoxicating liquor to a minor must be special for each occasion, and that a general permit without limitation as to time or quantity is void, see Gill v. State, 12 L. R. A. 433.

(March 18, 1905.)

A er

PPEAL by defendant from a judgment of the specific purpose of the statute to re

convicting him of violating the statute toxicating beverages to minors, or procuring against furnishing liquor to minors. Af- such beverages for them. An exception was firmed.

permitted in case of the consent of “the par. The facts are stated in the opinion. ents, guardian, or person having the care of Mr. John Tucker for appellant. such" minor. It was supposed that parents

Mr. Charles T. Cates, Jr., Attorney and guardians, and other persons having General, for the State.

charge of minors, would have concern for,

and exercise care over, the children comNeil, J., delivered the opinion of the mitted to them in the course of nature or by court:

operation of law, and that they would use The plaintiff in error was indicted and discretion in giving or withholding consent convicted in the circuit court of Putnam in every instance of a proposed gift or sale county on a charge of giving liquors to a to such child or children. To admit the vaminor without the consent of his parents. lidity of such a general consent as the paper ik was thereupon sentenced to pay a fine of above set out purports to give would not $10 and to six months' confinement in the only violate the spirit of the act, but would county workhouse. From this judgment he wholly frustrate the purpose which the leg. has appealed and assigned errors.

islature had in view; since a general conThe statute under which he was indicted sent of this character would be tantamount is found in Shannon's Code, $ 6786, and to a withdrawal of the child or children rereads as follows: “It shall be unlawful for ferred to in such paper from the protection any person or individual, or firm or corpora of the act; at least, in favor of the person or tion, whether engaged or not in the manu- persons to whom such writing might be adfacture or sale of any spirituous liquors, dressed. If such consent should be held malt, or mixed liquors, their employees, good, no sound reason could be offered agents, or servants, or other persons for against the validity of a writing addressed them, knowingly to sell, give, furnish to, or "to whom it may concern,” conferring upon procure for, any person under the age of all persons who might choose to take advantwenty-one years, any spirituous, vinous, or tage of it, the right to give intoxicating malt liquors, or any mixture thereof with liquors to the children of any parent or other liquors or ingredients, without the guardian sufficiently heedless, or reckless, consent of the parents, guardian, or person or wicked to consent to the debauching of having the care of such person under the the youth under their charge. The legislaage of twenty-one years.”

ture did not intend to sanction such a course The punishment is fixed by $ 6789, which of conduct. Indeed, we believe that the leg. reads as follows: “Any person or persons islature must have intended that a parent violating the provisions of $8 6786 or 6787 or guardian, or other person having the care shall be guilty of a misdemeanor, and, upon of a minor, could give consent that another conviction, shall be fined not less than $10 might give, sell to, furnish to, or procure nor more than $200."

liquors for, such minor only in cases of Two objections are made in this court. emergency; as, for instance, for medical The first is that his honor erred in refus. purposes.

It was

never intended that a ing to permit the defendant below to intro- general permission should be given to enable duce the following paper in evidence, exe- minors to use intoxicating liquors as cuted by the mother of the minor, viz. : beverage; on the contrary, authority to sell

to, give to, furnish to, or procure liquors Mr John Pressly :

for, them, is limited to such occasions and You can give any of my children drinks emergencies. of hisky or brandy at any time you may The second objection raised against the desire to do so. This December 1, 1903. judgment of the court below is that His

her

Honor added imprisonment to the fine, and Angelina X Palmer. that he had no legal right to do so. mark

We are of the opinion that this objection Attest J. L. Palmer.

is well taken, and must be sustained.

The rule at common law is thus stated by The mother of the boy was a widow. The Mr. Bishop: “The ordinary common-law child to whom the whisky was given was punishment for misdemeanor is fine and imonly fifteen years old. The whisky was prisonment, or either, at the discretion of given to him during the month of July, the court. It is imposed whenever the law 1904.

has not provided some er specific penalty. There was no error in the action of the For example, when a statute forbids or comtrial judge in rejecting this paper. It was mands an act of a public nature, but is

a

silent as to the punishment, the common make it indictable, but prescribes a penalty, law provides fine and imprisonment.”1 Bish- the specific remedy given, the penalty, exop, New Crim. Law, $ 940.

cludes the resort to an indictment. State The foregoing rule is recognized in several v. Maze, 6 Humph. 17; State v. Lorry, 7 of our own cases (Atchison v. State, 13 Lea, Baxt. 95, 32 Am. Rep. 555; State v. Manz, 275; Wickham v. State, 7 Coldw. 525; Dur- 6 Coldw. 557. It would seem to be true, ham v. State, 89 Tenn. 723, 18 S. W. 74; also, that where the statute creates an of. Kittrell v. State, 104 Tenn. 522, 58 S. W. fense, and prescribes a special form of 120; Thompson v. State, 105 Tenn. 177, 51 punishment, this would exclude any other L. R. A. 883, 80 Am. St. Rep. 875, 58 S. W. different or additional punishment. 213), the fine being assessed by the court if Such is the present case. The statate does $50 or under, and by the jury if over $50 not impose imprisonment, but declares that (Shannon's Code, § 7212); and the im- the punishment shall be a fine of not less prisonment to be fixed by the court (Shan- than $10 nor more than $200. non's Code, g 7202). The Code further pro- We are of opinion, therefore, that His vides that when the performance of any act Honor erred in imposing the imprisonment. is prohibited by statute, and no penalty for This court, however, has power to modify the violation of such statute is imposed, the the judgment by striking out the imprisondoing of such act is a misdemeanor. Shan ment and then affirming it as modified. non's Code, 6437. See also Robinson v. Griffin v. State, 109 Tenn. 17, 70 S. W. 61. State, 2 Coldw. 181; State v. Keeton, 9 This course will be pursued, and the judgBaxt. 559.

ment will be remanded to be executed as It has been held, however, that where the modified. statute which creates an offense does not

UNITED STATES CIRCUIT COURT OF A PPEALS, FIRST CIRCUIT.

V.

STEAM DREDGE NO. 1.

4. No peculiar rule which can be de

duced from the doctrine of last clear

chance, as originated in Davies v. Mann, MORRIS & CUMMINGS DREDGING COM

can be applied in an admiralty case. PANY, Claimant, Appt.,

5. To make applicable the doctrine of

last clear chance, it must clearly appear William NELSON.

that the negligence of one person was subse

quent to that of the other. (134 Fed. 161.)

(December 22, 1904.) 1. A government inspector whose duty it is to see that work is properly APPEAL by claimant from a decree in ad

miralty of the District Court of the done by a dredge employed on a government contract is entitled to protection from United States for the District of Maine, negligent acts of those in charge of it, when holding Steam Dredge No. 1 liable for inupon it, even in the intervals when there is juries alleged to have been negligently inno occasion for him to be actually engaged in ficted upon libellant. Reversed. any immediate active duty.

The facts are stated in the opinion. 2. The mere act of one rightfully on

Argued before Colt and Putnam, Circuit board a vessel, of leaning against, or wholly sitting upon, bitt around Judges, and Aldrich, District Judge. which runs a line used in shifting the posi- Messrs. George E. Bird and William tion of the vessel, is not negligence on his M. Bradley, for appellant: part.

The burden of proof is upon the libellant, 8. Negligently sitting within the bight and such burden must be sustained by eviof a hawser which is subject to strain will dence sufficiently clear, distinct, and prebring one within the admiralty rule of ap. portionment of damages in case both parties ponderating to enable the court to find the are in fault, where, by reason of the negli- | fact without resort to conjecture or surgence of the vessel, the strain is put upon the mises. line in such a way that the bitt around

The Baron Innerdale, 93 Fed. 492. which it runs gives way and he is thrown

Libellant-a man of thirty-two years' exoverboard by the sweeping forward of the line.

perience in maritime matters—brought this

misfortune upon himself by taking a posiNOTR.—As to doctrine of last clear chance, tion of known danger, within the bight of a see also, in this series, Bogan v. Carolina C. R. Co. 55 L. R. A. 418, and note, and the later case

rope which he knew was to be subjected to of Harrington v. Los Angeles R. Co. 63 L. B. A.

strain. 238.

The libel should have been dismissed.

The Burgundia, 29 Fed. 464; The Lydia | Biss. 409, Fed. Cas. No. 8,715; Greenwood M. Deering, 97 Fed. 971; Elder Dempster v. Westport, 63 Conn. 587, 60 Fed. 560. Shipping Co. v. Pouppirt, 60 C. C. A. 500, The common-law rule of contributory neg. 125 Fed. 732; Maryland use of Dombroska ligence is unknown to the maritime law, adv. Westoll, 106 Fed. 233; The Samuel 8. ministered in courts of admiralty jurisdicThorpe, 99 Fed. 108.

tion. The burden of showing freedom from fault Pollock, Torts, 6th ed. p. 458; Wm. Johnwas on libellant.

son & Co. v. Johansen, 30 C. C. A. 675, 58 The Great Republic (Thompson v. The U. S. App. 104, 86 Fed. 888; Workman v. Great Republic) 23 Wall. 34, 23 L. ed. 59; New York, 179 U. S. 552, 45 L, ed. 314, 21 The Lion, 1 Sprague, 44, Fed. Cas. No. Sup. Ct. Rep. 212; The Daylesford, 30 Fed. 8,379; The Louisburg, 21 C. C. A. 424, 33 633. U. S. App. 543, 75 Fed. 424; Merchants & The rule of Davies v. Mann, 10 Mees. & M. Transp. Co. v. Hopkins, 48 C. C. A. 128, W'. 546, is a qualification of the rule of 108 Fed. 890; The Chattahoochee, 21 C. c. contributory negligence, and is of recent A. 162, 33 U. S. App. 510, 74 Fed. 903; The growth. H. F. Dimock, 23 C. C. A. 123, 33 U. S. App. Grand Trunk R. Co. v. Ives, 144 U. S. 647, 77 Fed. 230; The Carbonero, 45 C. C. 429, 36 L. ed. 493, 12 Sup. Ct. Rep. 679. A. 314, 106 Fed. 335; The Clara (Shepherd In all cases in admiralty where there is v. The Clara) 102 U. S. 203, 26 L. ed. 146; mutual fault (presenting facts under which The Nereus, 23 Fed. 448.

the old rule of contributory negligence apA case brought in the admiralty for the plied), the admiralty courts divide the damrecovery of damages for personal injuries is ages. treated as if one of collision between two Western Ins. Co. v. The Goody Friends, 1 vessels.

Bond, 459, Fed. Cas. No. 17,436; The Clover, The Max Morris (The Max Morris v. 1 Low Dec. 342, Fed. Cas. No. 2,908; The Curry) 137 U. S. 1, 34 L. ed. 586, 11 Sup. Marcia Tribou, 2 Sprague, 17, Fed. Cas. No. Ct. Rep. 29.

9,062; O'Neil v. Sears, 2 Sprague, 52, Fed. In case the dredge should be found in Cas. No. 10,530; The Maud Webster, Hasfault, the damages should be divided, by kell, 325, Fed. Cas. No. 9,303; The Mary reason of fault and want of care on the part Ann, 11 Fed. 336; McWilliams v. The Vim, of libellant.

12 Fed. 906; The City of Merida, 24 Fed. The Joseph Stickney, 31 Fed. 156; The 229; The Westerland, 24 Fed. 703; The MaTruro, 31 Fed. 158; The Nautique, 44 Fed. rion, 56 Fed. 271; The Passaic, 76 Fed. 399; Union Ice Co. v. Crowell, 5 C. C. A. 460; The City of Norwalk, 46 C. C. A. 63, 49, 5 U. S. App. 270, 55 Fed. 87; The Haver-106 Fed. 982; The Senator D. C. Chase, 47 ton, 31 Fed. 566; Lane v. The A. Denike, 3 C. C. A. 240, 108 Fed. 110; The Arthur, 108 Cliff. 117, Fed. Cas. No. 8,045.

Fed. 557; The William E. Ferguson, 108 The same rule, not only of damages, but Fed. 973; The Devonian, 110 Fed. 588; The as to fault or blame or error, is to be ap- James D. Leary, 110 Fed. 685; The Anned plied in cases brought for the recovery of No. 5, 117 Fed. 754; Hall v. Chisholm, 55 damages for personal injuries as is applied Powell, 120 Fed. 522 ; The Caldy, 123 Fed.

C. C. A. 31, 117 Fed. 807; The De Veau. in cases of collision.

Atlce Northwestern Packet Co. 21 802; The Catharine v. Dickinson, 17 How. Wall. 389, 22 L. ed. 619; The Man Morris 170, 15 L. ed. 233; Rogers v. The St. (The Max Morris v. Curry) 137 U. S. 1, 34 Charles, 19 How. 108, 15 L. ed. 563; CushL. ed. 586, 11 Sup. Ct. Rep. 29; Workman ing v. The John Fraser (The James Gray v. v. New York, 179 U. S. 587, 45 L. ed. 330, The John Fraser) 21 How. 184, 16 L. ed. 21 Sup. Ct. Rep. 212.

106; Chamberlain v. Ward, 21 How. 548, 16 Daries v. Monn, 10 Mees. & W. 546. has 1. ed. 211; Nelson v. Leland, 22 How. 55, 16 not been recognized by the admiralty courts Greening) 9 Wall. 505, 19 L. ed. 741: The

L. ed. 272; The Gray Eagle (Pfister v. of this country.

Ariadne (Pentz v. The Ariadne) 13 Wall. It is impossible, with any degree of secur. 475, 20 L. ed. 542; The Continental (New ity, to reason from the doctrines of the mere Haven Steam Transp. Co. v. The Continenmunicipal code, in relation to purely home tal) 14 Wall. 345, 20 L. ed. 801; The Sunnypursuits, to those more enlarged principles side (Miner v. The Sunnyside) 91 U. S. 208, which guide and control the administration 23 L. ed. 302; The Stephen Morgan (The of the maritime law.

Stephen Morgan v. Good) 94 U. S. 599, 24 Reed v. Canfield, 1 Sumn. 195, Fed. Cas. L. ed. 266; The Connecticut, 103 U, S. 710, No. 11,641; The Yar Morris (The ML Mor- 26 L. ed. 467; The Albert Dumois, 177 U. ris v. Curry) 137 U. S. 1, 34 L. ed. 586, 11 S. 240, 44 L. ed. 751, 20 Sup. Ct. Rep. 595; Sup. (t. Rep. 29: Waring v. Clarke, 5 How. The Ottoman, 20 C. C. A. 214, 33 U. S. App. 441, 12 L. ed. 226; McCord v. The Tiber, 6'443, 74 Fed. 316; The Louisburg, 21 C. C.

V.

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