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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.) § 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 to render the service. The Neptune, 1 Hagg. Adm. 227, 236; Firemen's Charitable Asso. v. Ross, 9 C. C. A. 70, 13 U. S. App. 643, 60 Fed. 456; The Lydia A. Harvey, 84 Fed. 1000; Murphy v. The Suliote, 5 Fed. 99: The Nebraska, 21 C. C. A. 448, 24 U. S. App. 559, 75 Fed. 598. The barge upon which this lumber was situated was sunk at the bank, and in such shallow water that only about half of the entire cargo of lumber was submerged. By the services of the plaintiff the barge was raised, the lumber taken off, and reladen upon another barge chartered by the plaintiff.

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Nor is such a plaintiff a mere custodian, responsible only for negligence. As we have seen, replevin is a redelivery to the owner of goods wrongfully taken or detained. If in fact he is not the owner, his claim was groundless, and he must restore that wrongfully taken, and will not be heard to say that he held at the risk of the true owner, and was liable only for negligence as a receiver or other bailee. But if we shall regard the case of Bcbo v. Patton, 6 Heisk. 172, 19 Am. Rep. 593, as a case which we should follow as defining the local law in reference to replevin bonds instituted under the Code provisions of Tennessee, that decision is by no means controlling in the case now under consideration. The property replevied in that suit was an animal, which died from disease contracted without plaintiff's fault or agency. This was held to relieve the plaintiff from liability to return, that being, of course, impossible, and to also relieve him from his obligation to pay her value. The death of the animal wholly without the agency or fault of the plaintiff was, in fact, a blameless misfortune. But in the case at bar the plaintiff, through his own act and active agency, elected to cause the goods replevied to be exposed to sale for the satisfaction of an alleged salvor's lien in its own favor. How can it be said that this property has been lost or destroyed or taken from him without any active agency of his own? Quite another question might arise if this proceeding had been adverse to the plaintiff. The proceeding was one in rem. The defendant did not appear or defend, so that no judgment in personam was rendered. Considering the conclusiveness of the proceeding as to the lumber, and its liability as a whole to the salvage and towage claim 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

Conceding, for the purposes of this case only, that the plaintiff was wholly without fault, and that under the case of Bobo v. Patton the injury sustained by the replevied lumber should be regarded as a loss or destruction pro tanto, and allowance made for this in the recovery against plaintiff for damages for detention, the question remains whether the subsequent carrying of the lumber to Cairo, and there enforcing against it both a salvage and towage claim, by means of which the lumber has passed beyond the control of the plaintiff, is a discharge of his liability to pay the value of defendant's lumber. What plaintiff did in saving the defendant's lumber from loss and injury by water it was under obligation to do as one in possession under claim to ownership. What it did in carrying it, after it was saved, to Cairo, and there causing it to be seized and sold, it did voluntarily and in its own exclusive interest. The obligation to return the replevied lumber or pay its value and damages for detention has not become impos sible through an "act of God, or of the obligee, or of the law," except as the law was put in force by the plaintiff for its own pur

sequent, which is law when made, becomes
subsequently unlawful by a change in the
law. Thus, when property was conveyed to
be used for burial purposes, and such use
becomes subsequently unlawful, the forfei-
ture is excused. Mahoning County v. Young,
8 C. C. A. 27, 16 U. S. App. 253, 59 Fed. 96.
Other illustrations are found in Doe ex dem.
Anglesea v. Rugeley, 6 Q. B. 107; Brewster We also fix damages at......

v. Kitchin, 1 Ld. Raym. 317, 321; Brick
Presby. Church v. New York, 5 Cow. 538.
We have not been referred to any case which
gives sanction to the claim that a plaintiff
in replevin may relieve himself from his ob-
ligation to return or pay for property re-
plevied in case he is cast in the suit, when
he, as in this case, by his own institution of
a suit in rem disables himself from the
duty of returning. In Washington Ice Co.
V. Webster, 68 Me. 449, taxes assessed Less value at time of seizure

Total

against the defendant on the replevied property were paid by the plaintiff voluntarily, no seizure having been made to enforce collection. The payment was disallowed in reduction of damages for detention.

The judgment below was for the value of the lumber at the time it was taken, with interest. That much was in strict accordance with § 5144, Shannon's Code (Tenn.) as construed in Mayberry v. Cliffe, 7 Coldw. 117. The jury also found, upon evidence, that there had been a rise in the value, and they accordingly assessed the difference between the value when seized and the value at date of trial as damages for detention. This, too, is in accord with the construction placed on the act by the case cited above. But the court told the jury that they might mitigate damages for detention if they found that this lumber had been damaged by the sinking of the barge, without fault of the plaintiff. The jury rendered a special verdict in these words and figures:

John PRESSLY, Appt.,

บ.

STATE of Tennessee.

( . . . . . . . . Tenn.......

1. A general consent in writing, by a mother, that liquor may be furnished by the person to whom the

We, the jury, find for the defendant:
235,000 feet of cottonwood lumber
at $12.00 per thousand, amount-
ing to
Interest from January 22, 1902, to
date

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.

TENNESSEE SUPREME COURT.

Total .$3,883 61 We arrive at the damage in the following manner: 117,500 feet, at $18.00 per thousand

117,500 feet, at $13.00 per thou

sand

$2,820 00

2.

241 11

$3,061 11 822 50

Damage

.$ 822 50

It thus appears from the verdict that the jury found that one half of the lumber seized had not been damaged at all, and that the other half had sustained a damage of $5 per thousand, which reduced the value of the lumber at date of trial by $587.50, and this was accordingly deducted from the damages for detention. The plaintiff has thus been allowed to reduce the damages, recoverable otherwise by the amount of the injury done the lumber by the sinking of the barge while it was in its possession. This was admissible only upon the theory that plaintiff was liable only for a loss due to its own negligent act. The plaintiff in error cannot complain of this, and the defendant in error has not.

obtained a better result than it was entitled In our view of the case, the plaintiff has to, and the judgment must be affirmed.

Petition for rehearing denied.

as

(March 18, 1905.)

.$2,115 00

1,527 50

$3,642 50 2.820 00

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.

Where a statute prescribes a fine the punishment for giving liquor to minors, the court has no authority to impose 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.

A

PPEAL by defendant from a judgment of | the specific purpose of the statute to rethe Circuit Court for Putnam County strain the giving, selling, or furnishing inconvicting 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 parents, guardian, or person having the care of such" minor. It was supposed that parents and guardians, and other persons having charge of minors, would have concern for, and exercise care over, the children com

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The facts are stated in the opinion.
Mr. John Tucker for appellant.
Mr. Charles T. Cates, Jr., Attorney
General, for the State.

Neil, 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 discretion in giving or withholding consent in every instance of a proposed gift or sale to such child or children. To admit the validity of such a general consent as the paper above set out purports to give would not only violate the spirit of the act, but would wholly frustrate the purpose which the legislature had in view; since a general consent of this character would be tantamount to a withdrawal of the child or children referred to in such paper from the protection of the act; at least, in favor of the person or persons to whom such writing might be addressed. If such consent should be held good, no sound reason could be offered against the validity of a writing addressed "to whom it may concern," conferring upon all persons who might choose to take advantage of it, the right to give intoxicating liquors to the children of any parent or guardian sufficiently heedless, or reckless, or wicked to consent to the debauching of the youth under their charge. The legislature did not intend to sanction such a course of conduct. Indeed, we believe that the legislature must have intended that a parent or guardian, or other person having the care of a minor, ould give consent that another might give, sell to, furnish to, or procure liquors for, such minor only in cases of emergency; as, for instance, for medical purposes. It was never intended that a general permission should be given to enable minors to use intoxicating liquors as a beverage; on the contrary, authority to sell to, give to, furnish to, or procure liquors for, them, is limited to such occasions and emergencies.

The plaintiff in error was indicted and convicted in the circuit court of Putnam county on a charge of giving liquors to a minor without the consent of his parents. He was thereupon sentenced to pay a fine of $10 and to six months' confinement in the county workhouse. From this judgment he has appealed and assigned errors.

The statute under which he was indicted is found in Shannon's Code, § 6786, and reads as follows: "It shall be unlawful for any person or individual, or firm or corporation, whether engaged or not in the manufacture or sale of any spirituous liquors, malt, or mixed liquors, their employees, agents, or servants, or other persons for them, knowingly to sell, give, furnish to, or procure for, any person under the age of twenty-one years, any spirituous, vinous, or malt liquors, or any mixture thereof with other liquors or ingredients, without the consent of the parents, guardian, or person having the care of such person under the age of twenty-one years."

The punishment is fixed by § 6789, which reads as follows: "Any person or persons violating the provisions of §§ 6786 or 6787 shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than $10 nor more than $200."

Two objections are made in this court. The first is that his honor erred in refusing to permit the defendant below to introduce the following paper in evidence, executed by the mother of the minor, viz.:

Mr John Pressly:

:

You can give any of my children drinks
of whisky or brandy at any time you may
desire to do so. This December 1, 1903.
her

Angelina X Palmer.
mark

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The second objection raised against the judgment of the court below is that His Honor added imprisonment to the fine, and that he had no legal right to do so.

We are of the opinion that this objection is well taken, and must be sustained.

The rule at common law is thus stated by Mr. Bishop: "The ordinary common-law punishment for misdemeanor is fine and imprisonment, or either, at the discretion of the court. It is imposed whenever the law has not provided some other specific penalty. For example, when a statute forbids or commands an act of a public nature, but is

silent as to the punishment, the common law provides fine and imprisonment."1 Bishop, New Crim. Law, § 940.

The foregoing rule is recognized in several of our own cases (Atchison v. State, 13 Lea, 275; Wickham v. State, 7 Coldw. 525; Durham v. State, 89 Tenn. 723, 18 S. W. 74; Kittrell v. State, 104 Tenn. 522, 58 S. W. 120; Thompson v. State, 105 Tenn. 177, 51 L. R. A. 883, 80 Am. St. Rep. 875, 58 S. W. 213), the fine being assessed by the court if $50 or under, and by the jury if over $50 (Shannon's Code, § 7212); and the imprisonment to be fixed by the court (Shannon's Code, § 7202). The Code further provides that when the performance of any act is prohibited by statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor. Shannon's Code, § 6437. See also Robinson v. State, 2 Coldw. 181; State v. Keeton, 9 Baxt. 559.

It has been held, however, that where the statute which creates an offense does not

UNITED STATES CIRCUIT COURT OF A PPEALS, FIRST CIRCUIT.

STEAM DREDGE NO. 1.

MORRIS & CUMMINGS DREDGING COMPANY, Claimant, Appt.,

v.

William NELSON.

(134 Fed. 161.)

1. A government inspector whose duty

it is to see that work is properly

done by a dredge employed on a govern

ment contract is entitled to protection from negligent acts of those in charge of it, when upon it, even in the intervals when there is no occasion for him to be actually engaged in any immediate active duty.

2. The mere act of one rightfully on board a vessel, of leaning against, or wholly sitting upon, a bitt around which runs a line used in shifting the posi tion of the vessel, is not negligence on his

part.

3. Negligently sitting within the bight of a hawser which is subject to strain will bring one within the admiralty rule of apportionment of damages in case both parties are in fault, where, by reason of the negligence of the vessel, the strain is put upon the line in such a way that the bitt around which it runs gives way and he is thrown overboard by the sweeping forward of the line.

NOTE. As to doctrine of last clear chance, see also, in this series, Bogan v. Carolina C. R. Co. 55 L. R. A. 418, and note, and the later case of Harrington v. Los Angeles R. Co. 63 L. R. A. 238.

make it indictable, but prescribes a penalty, the specific remedy given, the penalty, excludes the resort to an indictment. State v. Maze, 6 Humph. 17; State v. Lorry, 7 Baxt. 95, 32 Am. Rep. 555; State v. Manz, 6 Coldw. 557. It would seem to be true, also, that where the statute creates an of fense, and prescribes a special form of punishment, this would exclude any other different or additional punishment.

Such is the present case. The statute does not impose imprisonment, but declares that the punishment shall be a fine of not less than $10 nor more than $200.

We are of opinion, therefore, that His Honor erred in imposing the imprisonment. This court, however, has power to modify the judgment by striking out the imprisonment and then affirming it as modified. Griffin v. State, 109 Tenn. 17, 70 S. W. 61. This course will be pursued, and the judgment will be remanded to be executed as modified.

4. No peculiar rule which can be deduced from the doctrine of last clear chance, as originated in Davies v. Mann, can be applied in an admiralty case.

5. To make applicable the doctrine of last clear chance, it must clearly appear that the negligence of one person was subsequent to that of the other.

(December 22, 1904.)

APPEAL by claimant from a decree in ad

miralty of the District Court of the United States for the District of Maine, holding Steam Dredge No. 1 liable for injuries alleged to have been negligently inflicted upon libellant. Reversed.

The facts are stated in the opinion. Argued before Colt and Putnam, Circuit Judges, and Aldrich, District Judge.

Messrs. George E. Bird and William M. Bradley, for appellant:

The burden of proof is upon the libellant, and such burden must be sustained by evidence sufficiently clear, distinct, and preponderating to enable the court to find the fact without resort to conjecture or surmises.

The Baron Innerdale, 93 Fed. 492. Libellant-a man of thirty-two years' experience in maritime matters-brought this misfortune upon himself by taking a position of known danger, within the bight of a rope which he knew was to be subjected to

strain.

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, 125 Fed. 732; Maryland use of Dombroska v. Westoll, 106 Fed. 233; The Samuel S. Thorpe, 99 Fed. 108.

The common-law rule of contributory negligence is unknown to the maritime law, administered in courts of admiralty jurisdiction.

The burden of showing freedom from fault was on libellant.

The Great Republic (Thompson v. The Great Republic) 23 Wall. 34, 23 L. ed. 59; The Lion, 1 Sprague, 44, Fed. Cas. No. 8,379; The Louisburg, 21 C. C. A. 424, 33 U. S. App. 543, 75 Fed. 424; Merchants' & M. Transp. Co. v. Hopkins, 48 C. C. A. 128, 108 Fed. 890; The Chattahoochee, 21 C. C. A. 162, 33 U. S. App. 510, 74 Fed. 903; The H. F. Dimock, 23 C. C. A. 123, 33 U. S. App. 647, 77 Fed. 230; The Carbonero, 45 C. C. A. 314, 106 Fed. 335; The Clara (Shepherd v. The Clara) 102 U. S. 203, 26 L. ed. 146; The Nereus, 23 Fed. 448.

A case brought in the admiralty for the recovery of damages for personal injuries is treated as if one of collision between two vessels.

The Max Morris (The Max Morris Curry) 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29.

In case the dredge should be found in fault, the damages should be divided, by reason of fault and want of care on the part of libellant.

Western Ins. Co. v. The Goody Friends, 1 Bond, 459, Fed. Cas. No. 17,436; The Clover, v.1 Low Dec. 342, Fed. Cas. No. 2,908; The Marcia Tribou, 2 Sprague, 17, Fed. Cas. No. 9,062; O'Neil v. Sears, 2 Sprague, 52, Fed. Cas. No. 10,530; The Maud Webster, Haskell, 325, Fed. Cas. No. 9,303; The Mary Ann, 11 Fed. 336; McWilliams v. The Vim, 12 Fed. 906; The City of Merida, 24 Fed. 229; The Westerland, 24 Fed. 703; The Marion, 56 Fed. 271; The Passaic, 76 Fed. 460; The City of Norwalk, 46 C. C. A. 63, 106 Fed. 982; The Senator D. C. Chase, 47 C. C. A. 240, 108 Fed. 110; The Arthur, 108 Fed. 557; The William E. Ferguson, 108 Fed. 973; The Devonian, 110 Fed. 588; The James D. Leary, 110 Fed. 685; The Annex No. 5, 117 Fed. 754; Hall v. Chisholm, 55 C. C. A. 31, 117 Fed. 807; The De Veau.r

Powell, 120 Fed. 522; The Caldy, 123 Fed. 802; The Catharine v. Dickinson, 17 How. 170, 15 L. ed. 233; Rogers v. The St. Charles, 19 How. 108, 15 L. ed. 563; Cushing v. The John Fraser (The James Gray v. The John Fraser) 21 How. 184, 16 L. ed. 106; Chamberlain v. Ward, 21 How. 548, 16

L. ed. 211; Nelson v. Leland, 22 How. 55, 16 L. ed. 272; The Gray Eagle (Pfister v. Greening) 9 Wall. 505, 19 L. ed. 741; The Ariadne (Pentz v. The Ariadne) 13 Wall. 475, 20 L. ed. 542; The Continental (New Haven Steam Transp. Co. v. The Continental) 14 Wall. 345, 20 L. ed. 801; The Sunnyside (Miner v. The Sunnyside) 91 U. S. 208, 23 L. ed. 302; The Stephen Morgan (The Stephen Morgan v. Good) 94 U. S. 599, 24 L. ed. 266; The Connecticut, 103 U. S. 710, 26 L. ed. 467; The Albert Dumois, 177 U. S. 240, 44 L. ed. 751, 20 Sup. Ct. Rep. 595; The Ottoman, 20 C. C. A. 214, 33 U. S. App. 443, 74 Fed. 316; The Louisburg, 21 C. C.

The Joseph Stickney, 31 Fed. 156; The Truro, 31 Fed. 158; The Nautique, 44 Fed. 399; Union Ice Co. v. Crowell, 5 C. C. A. 49, 5 U. S. App. 270, 55 Fed. 87; The Haverton, 31 Fed. 566; Lane v. The A. Denike, 3 Cliff. 117, Fed. Cas. No. 8,045.

The same rule, not only of damages, but as to fault or blame or error, is to be applied in cases brought for the recovery of damages for personal injuries as is applied

in cases of collision. Atlee v.

Northwestern Packet Co. 21 Wall. 389, 22 L. ed. 619; The Max Morris (The Max Morris v. Curry) 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29; Workman v. New York, 179 U. S. 587, 45 L. ed. 330, 21 Sup. Ct. Rep. 212.

Davies v. Mann, 10 Mees. & W. 546, has not been recognized by the admiralty courts of this country.

Pollock, Torts, 6th ed. p. 458; Wm. Johnson & Co. v. Johansen, 30 C. C. A. 675, 58 U. S. App. 104, 86 Fed. 888; Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The Daylesford, 30 Fed. 633.

It is impossible, with any degree of security, to reason from the doctrines of the mere municipal code, in relation to purely home pursuits, to those more enlarged principles which guide and control the administration of the maritime law.

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Reed v. Canfield, 1 Sumn. 195, Fed. Cas. No. 11.641; The Max Morris (The Max Morris v. Curry) 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29; Waring v. Clarke, 5 How. 441. 12 L. ed. 226; McCord v. The Tiber, 6

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