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'Article 11, § 32. It shall be unlawful for any minor or other person or persons to throw stones, play ball, pitch quoits, or engage in any sport, or do any thing on any street or alley within the city limits, tending to produce a bodily injury, or endanger the life or property of any person.'

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"Article 11. Any person violating any provision of this article, shall upon conviction before the mayor or other competent jurisdiction, forfeit and pay to said

The volume ends with a consideration of those principles which control the application of law to a legal contention. The most complicated instance of this kind arises when the laws of different States have to be applied in justice to the semi-foreign character of a case, and to some extent the law of the forum disregarded. Professor Holland's statement of the lead-city such penalty as may be assessed, not less than $1, ing principles which ought to obtain in cases of conflicting assertion of this kind, makes a brilliant ending to a luminous book — a book which may justly be regarded as one of the few triumphs of legal literature. LUDLOW FOWLER.

MUNICIPALITY NOT LIABLE TO ONE INJURED BY BOY COASTING IN STREET.

INDIANA SUPREME COURT, DECEMBER 21, 1882.

FAULKNER V. CITY OF AURORA.

A municipal corporation is not liable to a person who is injured, while travelling in its streets, by a boy coasting therein, even though such coasting is contrary to a city ordinance, and the city officers fail to enforce such ordi

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CTION for a personal injury. The opinion states the case.

MORRIS, C. The appellant sued the appellee for an injury sustained by his son, on Main street, in said city, on the 30th day of November, 1880.

It is alleged in the complaint that from the 1st day of November, 1880, until the 15th day February, 1881, said Main street, extending from Fifth street to First street in said city, and crossed by Fourth, Third and Second streets in said city, was during said time, between Fifth and Third streets, covered with frozen snow and ice to the depth of five inches, rendering its surface smooth, even and sleek. That during said period, large crowds, numbering one hundred persons. daily and nightly assembled on said Main street, between Fifth and Third streets in said city, with the knowledge of the appellee, and in the presence of its mayor, marshal and police officers, and engaged in the sport of sliding and coasting down Main street, over Fourth street, where the descent of Main street was very great, at the rate of forty miles per hour, thereby rendering said Main street, and Fourth street where it crossed the same, dangerous and unsafe for travel, That the plaintiff's son, Benjamin Faulkner, a lad about seven years of age, was accustomed to pass along said Fourth street over said Main street, to and from the public school in said city, that being the most direct and convenient way to and from said school. That on the 3d day of November, 1880, the appellant's said son was passing over said Main street on Fourth street, when he was struck, without fault on his part, by a sled propelled by the weight of two persons, so unlawfully engaged in the sport of sliding and coasting on said Main street, whereby his leg was broken, and he was otherwise greatly bruised and injured. It is averred that the appellant's son was confined to his bed for a long time, and that the appellant was put to great trouble and expense in nursing and caring for his said son. It is also averred that the following provisions of the ordinance of the appellee were in force at the time:

"Article 4, § 2. Each officer of the city of Aurora shall faithfully do and perform the duties required of him in his office by the act of incorporation and by the ordinances and by-laws of the city, and resolutions of the city council."

nor more than $100 with costs."

The appellee demurred to the complaint on the ground that it does not contain facts sufficient to constitute a cause of action. The demurrer was sustained. The appellant excepted, and electing to stand by his complaint, final judgment was rendered against him and in favor of the appellee for costs.

The rendering of judgment against the appellant, and the sustaining of the demurrer to his complaint are assigned as errors.

It is alleged in the complaint that the appellee had notice of the occupation of its street by said coasters, and that the sport of coasting was carried on in the presence of its officers. It is also alleged that the appellee had by ordinance prohibited, under suitable penalties, all persons from engaging in any sport on its streets, that might be dangerous to life or property; that said coasting was dangerous to life, and that no efforts were made by the appellee or its officers to suppress or prevent the dangerous sport.

That the occupation of one of the travelled streets of the appellee by coasters in the manner stated in the complaint would seriously interfere with the legitimate public use of the same, and endanger the safety of those rightfully travelling along and across it, hardly admits of a doubt. Such a use of the streets of a city is not only unauthorized and wrong, but altogether inconsistent with the rights of the public.

"A highway," says a recent writer of approved authority, "is intended for and devoted to the purpose of public travel, and every person may exercise this right reasonably. But every unreasonable use of the same, whereby others are hindered, delayed, or annoyed in a like reasonable use of the street, or in the rights incident thereto, is a nuisance. But whether a particular use, that is not a nuisance per se, is an unreasonable use and nuisance, is a question of fact to be judged of by the circumstances of each case." Wood on the Law of Nuisance, § 251.

Though the coasting on main street, within the corporate limits of the appellee, as described in the complaint, constituted a nuisance, yet it could hardly be said that if one person should descend said street on a sled at a proper time, and at a moderate rate of speed, though in sport and for pleasure merely, such use of the street would necessarily constitute a nuisance. Such a use of the street might not be inconsistent with its use by the public, nor render it dangerous or unsafe for travel. A person may drive his horse along the street at a reasonable rate of speed, even for pleasure, consistently with the use of the same by the public; but if he should drive his horse at a rapid and unreasonable rate of speed, it would endanger the safety of travel and become a nuisance. Whether the coasting or the driving of the horse upon the street for pleasure would be a nuisance, would depend upon the circumstances of each case. A police officer, who would attempt to stop the one or the other, would act at his peril. He would have to determine the fact, and if he misjudged, he would be responsible.

In this case, the appellee had, by ordinance, probibited all persons from engaging in dangerous sports upon its streets. It is alleged in the complaint, at least inferentially, that the coasting complained of was carried on in violation of this ordinance. But it

is also averred that neither the appellee nor its officers attempted in any way to suppress or prevent the unlawful occupation of its streets by the coasters.

The appellee having, by the express terms of the statute, exclusive power over its streets, had authority doubtless by ordinance to empower its officers to stop and suppress coasting upon its streets at once. But was it bound to do so?

If it deemed the ordinance referred to in the com plaint sufficient to prevent coasting and other dangerous sports upon its street, is it to be adjudged liabl because it did not provide a more stringent, and per haps a better and more efficient remedy? The law has confided to the legislative judgment and discretion o the common council of the appellee, the power to enact ordinances. If in the honest exercise of this power, the common council fails, through want of experience or defect of judgment, to establish such laws as are most completely and effectively adapted to the accomplishment of the end in view, the city is not liable. Dillon on Municipal Corporations, $753, and cases cited; Brinkmyer v. City of Evansville, 29 Ind. 187. It could only prevent or suppress such sports through its officers, and for their neglect, as we shall hereafter see, it is not liable.

We are aware that the case of Marriott v. Mayor and City Council of Baltimore, 9 Md. 160, is opposed to this conclusion, but we regard the case as exceptional and without support. Besides, by the express provisions of the charter of Baltimore, the city council had power to declare what should constitute a nuisance and abate the same. The court held that it was the duty of the city council to declare by ordinance coasting on its streets to be a nuisance, and to prevent it; and that for its failure to do so, it was liable to a party injured without his fault by coasters.

Without seriously complaining of the appellee for having failed to pass a proper ordinance for the prevention of coasting, the appellant seems to rest his right to recover upon its failure to execute the ordinance which it had adopted. Was the appellee liable for such failure? Any one of the appellee's citizens might, under the ordinance, have instituted proceedings against persons coasting on the streets in violation of its provisions. Grant however that it was peculiarly the duty of the officers of the appellee to enforce the ordinance and prosecute all persons violating the same, the appellee would not be liable for their failure to discharge this duty. Dillon says, § 54: "Unless there be a valid contract creating, or a statute declaring the liability, a municipal corporation is not bound to provide for and secure a perfect execution of its by-laws, and it is not responsible in a civil action for the neglect of duty on the part of its officers in respect to their enforcement, though such neglect result in injuries to private persons, which would otherwise not have happened." A city is not liable for the neglect of its marshal, its police officers or firemen appointed by it. Buttrick v. Lowell, 1 Allen, 172; Ready V. Mayor, etc., 6 Ala. 327; Schultz v. City of Milwaukee, 49 Wis. 254; Levy v. Mayor, etc., 1 Sandf. 465; approved, 1 Kern. 396; Griffin v. Mayor, etc., 5 Seld. 456.

But aside from this view of the case, we think the appellee was not legally bound to prevent or abate the nuisance complained of by the appellant. In the case of Schultz v. City of Milwaukee, supra, which is precisely the case before us, the court says: "Thecoasting or sliding down Poplar street in the manner and to the extent charged in the complaint was while being indulged in, a grievous public nuisance, which the city authorities ought to have prevented or suppressed. But this duty is a public or police, rather than a corporate duty, in the performance of which the corporation, as such, has no particular interest, and from which it derives no special benefit or advantage in its

corporate capacity, but which it is bound to see per formed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community." And the court explains its former decision in the case of Little v. Madison, 42 Wis. 643, relied upon by the appellant as follows: "Yet the precisground of the judgment in that case is, that if a municipal corporation, in the attempted exercise of any power conferred upon it, as to license a show, amusements, and the like, exceeds its authority, and licenses the placing of a public nuisance in a street, or the unlawful or dangerous use of a street for any purpose, and an injury results therefrom, without negligence on the part of the person injured, the municipality is liable to respond in damages for such injury The case goes no further, and could not without violating well-settled principles of law."

Public streets are for the public use, and the use is none the less for the public at large, because they are situated within a municipality and subject to its supervision, and for this reason placing obstructions thereon, is an indictable offense, and may be restrained in equity. Dillon, §§ 519 and 520; Smith v. State, 3 Zabr 712.

In the case of Borough of Norristown v. Fitzpatrick, 94 Penn. St. 121, it was held that a person injured by the discharge of a cannon by a crowd collected together on one of the streets of the borough, which had been engaged in firing the cannon for amusement for some hours, was not entitled to recover from the village damages for such injury. Gordon, J., says: "Admitting that a mob is a nuisance, and that of the worst kind, nevertheless it was one that a municipal corporation could not abate by the use of ordinary ap pliances, such as suffice for the removal of natural or material obstructions in or near a highway; resort must therefore be had to the police force, but as we have already seen, for the doings or misdoings of those who compose this force the municipality is not liable."

If, as held in this case, a municipal corporation is not liable to a person injured by the discharge of a cannon by men collected in its streets for the purpose of firing the cannon for their amusement, it could hardly be held liable for an injury occasioned by the less dangerous amusement of persons coasting upon its streets. In the case cited, it was justly held that the persons engaged in the firing of the cannon were liable to the party injured, and so doubtless would the parties in this case, who were engaged in the unlawful sport which resulted in injury to the appellant, be liable to him in damages.

In the case of Ray v. Manchester, 46 N. H. 59, and in the case of Hutchinson v. Concord, 41 Vt. 271, it is held that coasting on a highway is not a defect in a highway for which a city or town is liable. The same has been held in Massachusetts. Cole v. Newburyport, 129 Mass. 594; Shepherd v. Chelsea, 4 Allen, 113.

In the case of Hutchinson v. Concord, supra, the court say: "It is true that towns may be liable for damages for obstructions placed in the highway by others without any agency of the town or its officers, such as a log, wood, timber, or stone, if the town negligently suffers it to remain, exposing the traveller to danger. But in such case, the road, with such objects resting upon it, is thereby rendered insufficient or out of repair, and the town has the power to restore the road to its proper condition. **** But as to the boys with their sleds upon the road, it is quite different. It is not made unlawful by the statute to travel on the highway with such sleds, nor are the selectmen empowered to prohibit it. The selectmen are only empowered to prohibit one mode of using such sleds upon the highway; that is coasting when and where public travel is endangered by it."

It is insisted by the appellant that the rule in Massachusetts and other New England States upon this subject is more limited than it is elsewhere. The statutes of Massachusetts and other New England States provide that highways shall be kept in repair at the expense of the town or city in which they they are situated, so as to be safe and convenient for travellers; and that any person who receives or suffers bodily injury through a defect or want of repair in the highway may recover the amount of damages thereby sustained, in an action against the city or town obliged to repair the same.

It is held under this statute, that any thing in the condition of a highway which renders it unsafe or inconvenient for travel, is a defect or want of repair. It may be a hole in the highway, or it may consist of a stone or log, or other obstacle left on its surface, or a post standing within its limits, or a barrier stretched across it, though not touching it; or it may be trees or walls standing by or upon it and liable to fall and injure travellers; or it may be an awning projecting over it. For a failure to remove any obstruction from the highway, or to repair it and keep it in a condition to be reasonably safe for travel, the statute expressly makes the city or town in which the highway is located liable for injuries resulting from obstructions or want of repair of such highway.

The law of Indiana and many other States gives to incorporated cities jurisdiction over the streets located within their limits, and the means necessary to keep them in repair and reasonably safe for travel. Hence the duty to keep the streets reasonably fit and safe for public use is implied, and also the liability for a failure to discharge this duty. It would seem therefore that the law of Indiana upon the subject is the same as that of Massachusetts. If in this State a city keeps the streets within its limits in a reasonably safe and convenient condition for public use, it has discharged its whole duty upon the subject; if a city in Massachusetts does less than this, it fails to discharge the duty imposed upon it by the statute of the State. If coasting upon a public street in a city in Indiana is to be regarded as an obstruction which the city is bound to prevent or suppress, it should be so regarded in Massachusetts.

In speaking upon the general implied liabilities of cities, Dillon, J., says, § 789: "The municipal corporation is not an insurer against accidents upon the streets and sidewalks. Nor is every defect therein,

injury thus produced, it would follow, logically, that it would be liable for an injury caused by a loafer in lounging upon its streets, occurring in the presence of its officers, if it were known that such persons were accustomed to lounge and loaf upon its streets. To hold incorporated cities liable for such injuries, would be unjust and without, we think, the sanction of law.

As was held in the case of Norristown v. Fitzpatrick, supra, the appellee could only arrest and stop the sport of coasting upon its street through its officers and police force, but as held in the same case, the appellee would not be responsible for the neglect or failure of its officers to stop those engaged in thus using its streets.

In the case of Norristown v. Mayor, 67 Penn. St. 355, relied upon by the appellant, it was incidentally and by way of illustration, stated by the judge who tried the case, that persons lounging and loafing upon the street corners constituted a nuisance, but it was not held, nor was it intimated, that the city would be liable for the misdeeds of such loafers.

In the case of Parker v. Mayor, etc., 39 Ga. 725, and the cases in this State referred to by the appellant, the objects rendering the use of the highway unsafe and dangerous were of a material nature, fixed, and not at the time being moved and controlled by human will and direction. They were such objects as would constitute a nuisance in Pennsylvania, Wisconsin, and Massachusetts, as well as in Georgia or Indiana. We think there was no error in sustaining the demurrer to the complaint.

Per Curiam: It is ordered, upon the foregoing opinion, that the judgment below be affirmed at the cost of the appellant.

Combs, J., dissented; Niblack, J., doubted.

ADMINISTRATION UPON ESTATE OF LIVING PERSON.

PENNSYLVANIA SUPREME COURT, NOV. 20, 1882.

DEVLIN V. COMMONWEALTH OF PENNSYLVANIA. The granting by a Probate Court of letters of administration upon the estate of a living person is a void act and the decree may be attacked collaterally.

though it may cause the injury sued for, actionable. ItACTION by the Commonwealth for the use of Mary

is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes by night as well as by day." This is the liability which under its statutes is held to exist in Massachusetts.

In the case of Barber v. Roxbury, 11 Allen, 318, the court say: "But we are not aware of any precedent for holding an illegal use of the highway by men, animals, vehicles, or any other object while movable and actually being moved by human will and direction, and neither fixed to nor resting on, nor remaining in one position within the highway, to be a defect or want of repair for which the city or town is liable."

It is obvious that in the case before us the injury did not result from any defect in the highway. It was produced by the act of those improperly and unlawfully using the highway, which was at the time, and but for the unlawful acts of those improperly using the street, in a reasonably safe and convenient condition for public travel. The complaint is not that the appellant's son was injured because of defects in the street rendering it unsafe and unfit for public use, but because persons, while engaged in improperly using the street, run their coasting sled against his son, thereby injuring him. If the appellee is liable for the

B. Devlin, against John F. Devlin, and another. Mary B. Delin became entitled to a distributive share of a fund arising from real estate partitioned under the laws of Pennsylvania. John F. Devlin who took the real estate entered with the other defendant herein into a recognizance for the payment of the several distributive shares. Mary B. Devlin had at that time been absent from Pennsylvania more than seven years, and upon the presumption of her death letters of administration were issued by the proper court upon her estate. Defendant Devlin paid her share to the administrator. This action was brought for the share mentioned, Mary B. Devlin not having been dead.

The court below rendered judgment for plaintiff's and defendants took a writ of error.

C. S. Fetterman, E. A. Montooth and S. A. Johnston, for plaintiff in error.

C. A. O'Brien and Breil and Fitzpatrick, for defendant in error.

GORDON, J. Notwithstanding the long absence of Mary B. Devlin, the plaintiff below, from the State of Pennsylvania, and although it may be, as alleged in the statement of the plaintiffs in error, that she had

been unheard of for a period of fifteen years prior to the date of the issuing of letters of administration on her estate, yet the fact turns out to be that at that time she was alive. It follows that those who undertook to act upon the presumption of her death must bear the consepuences of the failure of that presumption. Let it be that the fact of so long an absence would in many instances raise a legal presumption of her death, yet we presume no one will contend that this legal presumption might not be successfully rebutted by proof that the person, whose death it was thus sought to establish, was in full life. Let us take, for example, a son under circumstances like those above stated, assuming the death of his father, and ou that presumption as heir the selling the father's land. Should the supposed decedent afterward appear the title of the son's vendee would be utterly void. Yet in this hypothetical case the sale is supposed to be made on a legal presumption which so long as it continues is perfectly good, and one on which the vendor might successfully defeud in an action for a breach of the warranty of title.

But in this case put, the son's title breaks down just where the defense to the plaintiff's claim in the case in hand breaks down, that is upon a failure of the presumption upon which the parties acted. Presumptively the son had power to sell, in fact he had no such power; presumptively the register had power to issue letters of administration on the estate of Mary B. Devlin, but in fact he had no such power. We cannot therefore but approve of what was so well said by the learned judge of the court below, i. e., that the presumption interposed by the defendants to defeat the plaintiff's recovery was not even an important element in the case; it was but evidence from which the register might assume the death of Mary B. Devlin, but it was no more conclusive than would have been the testimony of false witnesses to prove the same thing.

It might indeed be true, that were we to concede to the register judicial powers of a general character, as was conceded to the surrogate of the State of New York, in the case of Roderigas v. East River Sav. Bank, 63 N. Y. 460, the decree in the case in hand might be regarded as conclusive until reversed. But we are not disposed to regard this case as authority. Its standing as such is not only very much weakened by the dissent of three of the seven judges who composed the court, but as was said by judge Redfield in his note to this case (15 Am. L. R., N. S. 212, the case is perhaps without precedent either in America or England.

party before the court, consequently all the proceedings would be null, but that where an executor obtains payment on a void will, such payment cannot be impeached, notwithstanding the probate was afterward declared to be invalid. The distinction between the case thus stated, he explains by saying, "the probate of the will of a living person is ipso facto void, because of the want of jurisdiction, but where the person is dead the Orphans' Court has power over his estate, and one acting on the faith of its decree will be protected."

This is pretty much a restatement of the case of Allen v. Dundas, 3 T. R. 129, in which Justices Ashhurst and Buller hold precisely the same opinion.

So the argument made use of by Chief Justice Marshall, in Griffith v. Frazier, 8 Cranch, 23, is of like import; he says: "In the common case of intestacy it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until aunulled by the competent authority; because he had power to grant letters of administration in the case. But suppose administration be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case in truth is not one within his jurisdiction. It is not one in which he has a right to deliberate. It was not committed to him by law, and although one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction."

At the risk of being considered tedious, I have thus quoted at some length from the opinion of the chief justice, for I regard it as settling, so far as persuasive authority can go, the case in hand.

Furthermore in the case of Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, we have a case directly in point. In that case it was held by the Supreme Court of Massachusetts that a depositor in a savings bank might recover a deposit, though the amount had been previously paid to an administrator appointed under the erroneous presumption of the depositor's death arising from his absence for more than seven years without being heard from. Dewey, J., who delivered the opinion, fully sustains the judgment of the court by an able argument and the citation of numerous authorities. To my mind he very clearly proves that the decree of a probate judge, in granting letters under the circumstances stated, may be collaterally attacked and avoided for the want of jurisdiction. He remarks, inter alia, the position is that seven years' absence from home without being heard from authorizes the probate judge to treat the case as though the party were dead. But he exposes the error contained in this proposition by calling attention to the fact that the circumstances alleged are but evidences of death, and that they may be rebutted by showing the fact to be otherwise; hence the presence of the supposed dead man leaves no ground on which to support the jurisdiction. We think this is sound reasoning and worthy of our adoption. Under a contrary doctrine a living man might be obliged to stand by and see the administration of his own estate, or he might

But whatever may be the surrogate's jurisdiction under the statutes of New York, certain it is that under our act of March 15, 1832, the register's powers are special and limited. By that act he has power to issue letters of administration on estates of dead persons only, and not on estates of the living. His decrees are final and conclusive until reversed by a superior tribunal, when under the statute he has jurisdiction, but if made without jurisdiction they are worthless and void, and may be impeached in any collateral proceeding. That this granting of letters upon the estate of a living person, though supposed to be dead, is not only avoidable but a void act, is a legal conclusion supported by abundant authority. In McPherson v. Cunliff, 11 S. & R. 422, Mr. Justice Duncan shows the distinction between those acts of the Orphans' Court which are voidable only, and those which are wholly void. He says that that which gives juris-be forced to cite his executor or administrator to acdiction to the Orphan's Court is the death of the owner of the estate, and that if letters of administra-sion of the remains of his own property. tion were taken on the effects of a living man, or of one who died testate, the administration would be void and there would be no administrator to act, no

count, in order that he might be enabled to get posses

Among several cases to which our attention has been directed by the counsel for the plaintiff in error, is that of Miller v. Beates, 3 S. & R. 490, where on the

presumption of the death of John G. Schlosser, arising from an absence of many years without being heard from, a legatee over was permitted to recover without being required to give a refunding bond. Here how

ever there was no pretense in the way of evidence to rebut the presumption of the death of the first taker, hence nothing to impeach the decree of the register. More than this, the executor was fully protected by the judgment of a court having undoubted jurisdiction over the parties, and whose judgment could not be collaterally contested. There is therefore no kind of analogy between this case and the one in hand.

Had John F. Devlin been compelled by a court of competent jurisdiction to have paid to the administrator the money in controversy, his case would have been very different, but having voluntarily made payment to one whose authority was at best but prima facie, he assumed all risks, and must now bear the consequences of the failure of that presumption.

The judgment is affirmed.

feloniously receiving were on board an English ship in the river Maas, off Rotterdam, in front of a "dolphin," and was moored by ropes to the land of Holland. The tide ebbs and flows in the river, and at that place where she was lying in front of the "dolphin" there is always enough water to float ships of her class. There was no actual proof when or by whom the bonds were stolen. The case states, "There was no evidence upon which the jury could have found that the theft occurred after the voyage began; the evidence rather pointed to its having occurred before she sailed." Whether the bonds were carried off the ship on to the shore, and sent by some conveyance to the prisoners in England, or whether they were brought by the prisoners to England does not appear. The prisoners were acquitted of stealing the bonds and found guilty of receiving them with guilty knowledge that they had been stolen. It is obvious that the prisoners could not be convicted of feloniously receiv ing the bonds unless they were stolen within the same jurisdiction where the receiving took place, and therefore it becomes material to inquire whether the jurisdiction of the admiralty attached so that the

FELONIOUSLY RECEIVING GOODS STOLEN prisoners could be tried at the Old Bailey. It is ad

FROM SHIP IN FOREIGN PORT.

ENGLISH CROWN CASES RESERVED, NOV. 25, 1882.

REGINA V. CARR (47 L. T. Rep., N. S. 450). Egyptian and other bonds were put on board a British ship lying in the river, and moored to the shore at Rotterdam, for conveyance to England. The bonds were stolen, and the prisoners, British subjects, were found dealing with them in England, and were tried in an English criminal court, and found guilty of feloniously receiving the same, well knowing them to have been stolen. Held, assuming the bonds to have been stolen by a foreigner, or other person not being one of the crew from the ship at Rotterdam, whilst so moored in the river, that the admiralty had jurisdiction over the offence, and that the prisoners were properly tried in the English criminal

court.

THE prisoners, Carr and Wilson, were tried at the

Old Bailey in the Central Criminal Court for felony in respect to certain Egyptian bonds and Illinois railway bonds stolen from an English vessel lying in Dutch waters. At the time of the theft the vessel was in the river Maas at Rotterdam about twenty or thirty feet from the quay, and against a “dolphin," a structure of piles for the use only of the ships of the company to which the vesse belonged, projecting from the quay for the purpose of keeping vessels off the quay. She was moored to the quay in the usual manner. The place where she was lying was in the open river, sixteen or eighteen miles from the sea. There is not any bridge across the river between that point and the sea. The tide ebbs and flows there, and for many miles further up the river. The place is never dry, and that vessel would not touch the ground there at low water. The indictment contained several counts, the fourth of which charged the prisoners with receiving the same securities within the jurisdiction of that court, well knowing them to have been stolen.

A part of the stolen property was after the theft found in the possession of the prisoners in England. They were British subjects.

The prisoners were found guilty in the fourth count. The court reserved the question whether it had jurisdiction to try the prisoners for the offense for the opinion of this court.

COLERIDGE, C. J. This case has been argued at some length, and the question raised by it is no doubt of considerable importance. The facts are these: The bonds which the prisoners have been convicted of

mitted that the exact point raised in this case has never arisen for decision in our courts before. There appear but two points for us to decide. 1. Was the ship within the jurisdiction of the Admiralty so as to make offenses committed upon it triable according to the English law? 2. If that point is answered in the affirmative, were the prisoners according to the decisions liable to be tried in the English courts? First, as to the place. The place appears to me to come within the old definition of the admiralty jurisdiction. The ship was at the part of the river which is never dry, and where it would not touch the ground at low water, and the tide ebbs and flows in the river, and great ships do lie and hover there. That is sufficient to bring this ship within the admiralty jurisdiction. Without saying that the reports of the cases of Rex v. Jemot, 7 Car. & P. 664, and Regina v. Allen, 7 Moody Cr. Cas. 494, are as full as could be desired, it seems very difficult to draw any tangible distinction between them and the present cases. This case also falls within the decision of Reg. v. Anderson, L. R., 1 Cr. Cas. Res. 161, where the ship was half-way up the river Garonne in France, and at the time of the offense about 300 yards from the nearest shore, and this court held, the prisoner having been convicted of manslaughter, that the offense had been committed within the jurisdiction of the admiralty, and that the Central Criminal Court had jurisdiction to try the prisoner. I am unable to distinguish this case from that, but if any thing Reg. v. Anderson seems an a fortiori case. Then as to the second point, whether there is any thing in the personality of the prisoners which would make them not liable by the law of England. It is true that some of the judges in Reg. v Anderson, ubi sup., place reliance upon the fact that the prisoners formed part of the crew of the vessel, but Bovill, C. J., in his judgment points out that England has always insisted on her right to legislate for persons on board her vessels in foreign ports. None of the judges suggested that their judgments would have been in any way altered if the prisoners had not in those cases formed part of the crew. I think it makes no difference whether a person is a British subject or not who comes on board a British ship where the British law reigns, and places himself under the protection which that flag confers; if he is entitled to the privileges and protection of the British ship he is liable to the disabilities which it creates for him. I am unable therefore to make a distinction between a passenger or stranger on board a ship and one of the crew, and it makes no difference in my mind

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