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the child. It also appeared that he intends to reside in California, and proposes to place the child in the care of a married sister in California.
Upon these facts, it was contended in behalf of the petitioner, that, being father, he had a right to the custody of the child, that in determining such right the discretion of the court might be exercised, but it must be a judicial discretion. There are only two cases in which the right of the father is limited, which are when he is manifestly unfit to take charge of the child, and when he has abandoned by his acts his right to the custody of the child. Upon the facts of the case, the father was a fit person to care for the child, and had not abandoned his right.
Judge Hoar, after consulting with other members of the court, said that he was prepared, after conference, to state the result he had reached, in which all the members of the court concurred. The decision would depend upon the application of a legal proposition to the facts of the case. He need not say that he had hardly ever had occasion to pass upon a more painful case, one in which he was more moved by sympathy for both the parties. The father has prima facie the right to the custody of the child. This right cannot be taken from him by the mere consideration of any supposed benefit which would accrue to the child, unless something has occurred to interfere with that right. Suppose that a child in humble circumstances is found in the street going to school, and a very wcalthy person undertakes to adopt it; although the court might be of opinion that it would be for the best interests of the child, yet the court has no power to allow it. It is a question of natural, legal right. The court has in such cases only a judicial discretion.
He would next look at the facts of the case to see if any thing was proved to qualify the rights of the parties. Although there was some evidence to show that the petitioner did, in one or two instances, strike his wife, yet he did not think, considering their station in life and habits, that there was any thing to show that he was an unfit person to have the custody of the child. The affectionate terms in which his wife afterwards wrote him, showed also that their domestic harmony was not interrupted.
He did not think that the absence of the petitioner on a voyage to China, and in remaining abroad, showed any failure of duty on his part, or any intention to abandon his wife and family. On his return, although he did not stay long, he made what he supposed to be sufficient inquiries for them. No conclusion is to be drawn against him for any misconduct on his part. As between the father and the respondent and his wife, the case is to be decided on the ground of superior right, and the right of the father is first to be considered. If he has done nothing to forfeit his right, as between the two, his right is the stronger. The learned judge then continued :
“ There remains the question as to the condition of the child itself. In a decision of the case, it must be considered how the father's right is affected by the condition of the child. Suppose by a pure misfortune, as insanity, or being cast away and being compelled to live among savages, a father has left his child destitute and dependent upon charity; does that give the child the right to form such new relations as to take from the father the right to the custody of the child ? Upon the best reflection, I am satisfied that it does. When the father, by misfortune, is compelled to leave the child utterly helpless, the child ought to be considered as emancipated by the father. If by misfortune, the child has made new relations in life, so deep and strong as to change its whole nature and character, the father has no right to reclaim it. I am satisfied that this is a sound proposition. The child is not the father's property. It is a human being, and has rights of its own. The father has a right to the custody of the child, because, from general experience, the natural and trained affections of the child attach to the father and those of the father to the child. If the father has left the child at an age too early for it to remember him, and it is placed in circumstances so that it must perish unless cared for, and other persons have expended money and become attached to the child, and the child has formed such associations as cannot be severed without injury to it, then the father has no legal right to sunder those ties. He is not to be separated from his child. His acquaintance is yet to be formed. It being proved that the father left the child, and by misfortune or accident failed to discover where the child was, and in the mean time that the child has been taken care of by the respondents until she has arrived to years of discretion, and that it is intended to remove her to a distant State, where the mode of life will be different from that to which she has been accustomed, the law will not allow the father to have the custody of the child. It is within the judicial duty of the court to determine that the assent of the father has been given to the arrangement, which cannot be terminated without injury to the child. This principle would apply under the same circumstances if a father became insane. A human being cannot be treated like a piece of property. So, if a child, by a misfortune, were nurtured in a warm climate, if it appeared that by a sudden removal to another climate its health would be injured, this right of the father would not exist. The father, in this case, should be glad that his child had fallen among people who have been so good to her, and that she has been made a little girl that he may be proud of. It would be cruel in him to take her away, depriving her of the society of her sister, her only relation, and putting her among those who in all things are strangers to her, except that of blood. The child cannot now appreciate the strong tie of blood, but this may be developed if the father takes pains to form her acquaintance. There is no absolute forfeiture of the father's rights, but the child having been left under such circumstances, in the care of others, he cannot now withdraw the child from their custody. It being understood that there will be no attempt on the part of the respondents to deprive the father of the opportunity of cultivating the acquaintance of the child, the order is that the child be remanded to the custody of the respondents."
Upon inquiry made by counsel for the petitioner, with a view to ascertain whether the case should be carried to the full court, Judge Hoar said that the case had been carefully considered by himself, that he had submitted it to two members of the court who had also considered it, and that he had now submitted it with a statement of the legal proposition upon which the decision rests to the five members of the court, all of whom concurred with him in the decision which he had rendered.
8. B. Ives, Jr., & J. H. Ellis, for the petitioner, and W. D. Northend for the respondents. — Boston Daily Advertiser.
MICHIGAN. SUPREME Court. — Polly Ring v. Della Burt and Daniel Burt. Appeal in Chancery. Ira Ring owned and occupied a forty-acre lot of land with his wife Polly Ring. Della Burt, the wife of Daniel Burt, is his daughter. It is claimed that he made a verbal agreement with them that if they would support him and his wife during their lives, they should have a deed of the land, and it is also claimed that they performed this agreement so long as he lived. Ira Ring died in 1866, having a short time previously given a deed of the land to Della Burt, in which deed his wife did not join. After his death, his wife refused to live with the Burts, and filed a bill in chancery to have a homestead set off from the forty-acre lot, which was conceded to be of more than $1,500 value. The Burts defended, claiming the land under the parol contract, which they claimed was assented to by the complainant. The Circuit Judge dismissed the bill.
Held, that whether complainant assented to the verbal contract or not, it was not binding upon her. She cannot deprive herself of her right in the homestead except in the manner pointed out by the statute.
Held, also, that a bill in chancery is a proper remedy to have her homestead right admeasured and set off to her.
Eli H. Hoover v. Jacob Peters. Peters sued Hoover to recover the price of three dressed hogs which he had sold Hoover, and which Hoover informed him at the time he wanted for food for men in his employ. For one of the hogs Hoover afterwards refused to pay, on the ground that it was diseased and unfit for food. The question in the case was, whether, in the absence of any express warranty, or of fraud in the sale, the seller of meat for food is to be held as impliedly warranting its fitness for that purpose. The Circuit Judge gave judgment for Peters for the full price.
Held, that this judgment was erroneous. An implied warranty of fitness for consumption as food is included in every sale of provisions to the consumer, where the seller is apprised of the purpose of the purchase, whether he is a retail dealer or not. The rule grows out of regard for the health and lives of individuals, and does not depend on the seller's employment.
Christiancy, J., dissenting, thought that the rule of implied warranty should be confined to sales by retail dealers, and that it was not shown in this case that Peters was such a dealer.
Joseph Tremble v. Crowell & another. Crowell & Eldredge bought of Tremble a quantity of lake fish in half-barrels, without inspection and without warranty, and took the same to Toledo, where a part of them proved to be unsound. They thereupon brought suit against Tremble to recover back the consideration paid for the unsound fish, and proved a special custom, known and understood among dealers, that if the fish proved to be unsound, the consideration money should be refunded. The jury found such a custom to exist, and the Circuit Judge held it valid.
Held, that such a custom would be opposed to the policy of our State Inspection Laws, and tend to defeat their purpose and to induce parties to dispense with their provisions, and therefore could not be valid in law.
NEW YORK. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF New York. — Paul Sears v. The Steamer Scotia. Collision. This was a libel by the owners of the American ship Berkshire against the British steamer Scotia.
The Berkshire was sunk by a collision between the vessels on the Atlantic Ocean. It appeared by the evidence that the collision took place on a dark night; that the Scotia had her proper regulation lights, white, green, and red; that the Berkshire had only one light, a white one, which was fastened to her anchor stock.
The court, Blatchford, J., was of opinion, on the evidence, that the collision arose from the Berkshire carrying a white light on the anchor stock, and from not carrying colored side-lights. By the Act of Congress of April 29, 1864, she was forbidden to carry the white light which she did carry, and was bound' to carry the colored lights which she did not carry. The British Act provides the same regulations with regard to lights as the United States Act.
The Berkshire contended, however, that the Scotia could not avail herself of a municipal statute of the United States to convict an American vessel of a tort on the high seas; that the question must be determined without reference to the municipal laws of the United States or Great Britain, and solely by the General Maritime Law, and that by the General Maritime Law the Berkshire was not bound to carry, or not to carry, particular lights.
The learned Judge was of opinion that the Scotia could not take advantage of the Berkshire having disobeyed certain regulations with regard to lights, on the ground that those regulations were prescribed by a statute of the United States, nor did it make any difference that the same regulations were contained in a British statute; but he held that those regulations having been adopted by nearly all the nations whose ships usually navigated the waters where this collision took place, they must be considered the rules of navigation and usages of the sea which usually prevailed, and were customarily observed, at the time and place of the collision; that the merits of the collision must be decided according to those rules and usages ; he therefore held the Berkshire in fault, and being of opinion that there was no contributing fault on the part of the Scotia, he dismissed the libel.
Judge Blatchford's opinion is an exhaustive discussion on the rule which must govern in cases of collision between vessels belonging to different governments.
OHIO. UNITED STATES CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF OHIO. — Henry P. Coolidge v. Columbus B. Guthrie. This was an action of trover brought to recover the value of cotton. The defendant pleaded the general issue. The cotton, which was the property of the plaintiff, a citizen of Arkansas, was seized in 1862 by General Samuel P. Curtis, commanding an army of the United States, and who then held military possession of the town of Helena in Arkansas. The cotton was seized on farms in the neighborhood of Helena, brought into that place, and there sold to the defendant, who took it to New
York, and there sold it. The case was tried without a jury before Mr. Justice Swayne, who gave judgment for the defendant on the two following grounds : —
1. That the court had no jurisdiction of the case, the seizure being an act of war, and this defence was admissible under the general issue. The learned Judge distinguished the case of Mitchell v. Harmony, 13 How. 115, on the ground that the property seized in that case belonged to a citizen and not to an enemy. (With all respect for the court, we must say that this is a distinction without a difference. Mitchell v. Harmony cannot stand together with the decisions of the United States courts on questions arising under the late war, and the sooner it is expressly overruled the better.)
2. That the cotton having been seized and firmly held as booty, the title of the hostile owner became extinct. His remedy, if any, is against the Government. The case will be found at length in 8 Am. Law Reg. (N.s.) 22.
PENNSYLVANIA. Several interesting cases have recently been decided by the Supreme Court, for reports of which we are indebted to the Pittsburgh Legal Journal.
O'Donnell v. Alleghany Valley R.R. Co., 4 Pitts. L. J. (n.s.) 169. A mechanic was specially employed to do work at a railroad bridge at a distance from his home; part of the contract of hiring was, that he should travel on a passenger train to and from his work, in consequence of which his pay was less than it would have been if he had paid fare. Held, that in so travelling he was a passenger and not a servant of the company, and that he could recover damages against the company for an injury caused by an accident which resulted from the unsafe condition of the roadway.
Pittsburgh Coal Co. v. Foster, 4 Pitts. L. J. (N.s.) 181. The failure of an engine builder to furnish at a fixed time, according to contract, to a coal company, a suitable engine for transporting their coal, entitles them to damages for their expenses in such transportation with the means they had beyond what they would have incurred with the engine; but they cannot claim also for the profits in the transportation of the increased amount of coal they might have transported by it, as it cannot fairly be inferred that the builder of the engine would know that its possession would enable them both to mine and haul more. — See Cory v. Thames Iron Works Co., Law Rep. 3 Q. B. 181, 2 Am. Law Rev. 676; British Columbia Saw-Mill Co. v. Nettleship, Law Rep. 3 C. P. 499.
Henderson v. Hunter. A deed was made to certain persons as trustees, and their successors (not incorporated), of a lot of ground for “a house or place of worship for the use of the members of the Methodist Episcopal Church of the United States of America (so long as they use it for that purpose, and no longer, and then to return back to the original owner), according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church.” This was held to give a fee determinable by a special limitation, and on the abandonment of the lot for the purposes mentioned, the lot reverted to the grantor without entry. That estates in fee, with such limitations, may be created, is a doctrine as old as the law. The gift to A. and his heirs, tenants of the manor of Dale, figures in all the elementary treatises