Moore v. Christian.

facts. The father and mother of the boy had been laborers on the land of Christian. The father died shortly before the suing out of the writ. Christian alleges that several years before his death he put the boy in his (Christian's) charge, saying that he might keep him until he attained majority. The mother says that she does not believe that her husband ever entered into any such agreement, and that if he did, it was without her knowledge or consent. It is certain that the boy went into Christian's charge when he was about ten years of age, and that he was about thirteen when this action was instituted. He avows his own desire to stay with Christian, stating that the latter treats him well, and has promised to give him a horse, saddle and bridle if he will remain. When the mother called for her son, before the suing out of this writ, Christian told her that he, could go with her if he desired to do so, but that she should not take him against his will. She says that Christian threatened to whip her if she attempted to compel her son to go with her. This he denies.

It is shown that Christian is a man of good character, and some property. The mother is very poor and illiterate, dependent upon her daily labor in the fields for the support of herself and five children, all of whom, save one, are younger than this son.

Two questions are presented by these facts: 1. Is the mother entitled to the custody of her child? 2. Has there been established such detention of the boy, on the part of Christian, as will support this writ?

Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child.

Our statute law provides for appointing guardians of the estates of minors, whether their parents are living or dead; but expressly forbids the appointment of guardians of their persons if either parent be alive, thus recognizing in the broadest manner the parental right to their custody. Code 1871, § 1202.

So, too, all officers and courts are forbidden to apprentice any minor without the consent of the parent, unless it be shown that the parent has failed or been unable to take charge of the child, or is of immoral habits. Code 1871, § 1793.

No higher evidence could be afforded of the sanctity with which

Moore v. Christian.

our law invests the parental right of custody, or rather recognizes and protects the right given by nature and by God. It is, indeed, held that this parental right must give way to the permanent interest of the child, if it be shown that the life, or health, or morals of the latter will be prejudiced, or his usefulness as a citizen seriously jeopardized, by remaining under the parental control; but it is not meant by this that the courts can sit in judgment upon the question whether a wealthy stranger can give to the child more worldly advantages than an indigent parent. This would be to make poverty a crime, and to punish it by the bitterest of penalties. In the case at bar, it is not shown, or attempted to be shown, that the mother is in any respect an improper person to control and govern her own offspring. Nothing is alleged against her save her poverty and her dependent condition, and that would seem to furnish a reason rather in favor of than against her right to demand and obtain the control and the services of that one of her children who can aid her in rearing and supporting the others.

The boy, it is true, expresses a preference to remain with the appellee; but while in doubtful cases the wishes of a child of this age will be sought, and to some extent be observed, we cannot for a moment agree that a boy of thirteen can be allowed, at pleasure, to abandon his filial duties, and select elsewhere a home more agreeable either to his desires or his worldly interests. So to hold would simply be to offer a premium to the children of the poor to shirk the duties to which their station in life has called them, and to permit them, at the sacrifice of all the natural affections, to set about bettering their condition, at a period of life when the law dedicates both their persons and their services to parental control.

But it is said that in this instance the father, in his lifetime, had contracted away his son, and that as it is to the father, rather than the mother, that the law awards the custody of the children, this contract will be enforced by the courts. Conceding that there was in this case a contract, based upon a legal consideration and binding upon the father-upon which we express no opinion it must, we think, be held to have terminated at his death. If made at all, and if a valid contract at all, it was entered into without the knowledge or consent of the mother, and could not, therefore, divest her of that right to the custody of her son which arose upon the death of the father.

The father may appoint a testamentary guardian of the person or VOL. XXXI — 48

Moore v. Christian.

estate of his children, but he cannot, by contract with a stranger, bargain away the rights of the mother after his death. The courts might, under such circumstances, refuse to restore the child to her, for good and sufficient reasons, springing out of her own character and the welfare of the child; but the objections to doing so must be based upon other considerations than her poverty, or the wishes of a boy of thirteen, seduced from filial duty by promises of presents or rewards.

We are of opinion that the mother, in this case, has shown herself entitled to the custody of her son.

Has a case of detention been made out against appellee? "The writ of habeas corpus shall extend to all cases of illegal confinement or detention whatever, by which any person is deprived of his liberty, or in which the rightful custody of any person is withheld from the person entitled thereto." Code 1871, § 1396.

We have seen that the mother is entitled to the custody of her son in this case. Is that custody withheld from her by appellee? He says that the boy is at liberty to go if he pleases, but he admits that he has forbidden the mother to exercise her parental right of force and chastisement to compel obedience to her wishes. He who harbors a child absconding from its home, and forbids the exercise of parental authority to enforce a return, does, within the meaning of the act, withhold the child from the custody of the person entitled to it.

Indeed, the mere harboring and employing of a child under such circumstances, is made by statute a criminal offense in this State, and would of itself perhaps justify a writ of habeas corpus.

1876, p. 32.

Acts

In Maples v. Maples, 49 Miss. 393, this court refused to return a child, who was living with its grandfather, to its mother, who was shown to be an immoral woman. That far the decision is approved. In so far as it held that the conduct of the grandfather in refusing to permit the mother's agent to take possession of the child did not amount to a detention, it is overruled.

Reversed and remanded, with instructions to remand the child to the custody of the mother. Appellee to pay costs in both courts

Lowenburg v. Jones.

LOWENBURG V. JONES.

(56 Miss. 688.)

Carrier - liability of last of a connecting line of carriers for negligence of a prior.

The last of several common carriers, forming a connecting line, cannot be held for the negligent loss of goods by a prior carrier of the same line.

A

CTION for freight. The defendant claimed to offset the value of a portion of the property lost in transit. The opinion states the facts. On this point the judgment below was for the plaintiff.

T. M. Miller and M. Marshall, for plaintiffs in error.

W. L. Nugent, for defendant in error.

SIMRALL, Ch. J. The question on which the case seems to have turned, in the court below, was, whether the defendants could not recoup in this action the value of the mule, against the demand for freight asserted against them.

The facts are these: Lowenburg & Co. shipped at St. Louis twentythree mules, consigned to themselves at Vicksburg, "on a through bill of lading." The animals were received by the Iron Mountain road at St. Louis, and were transported over two connecting railroads, the last being the Vicksburg and Meridian road. The agent of the latter road delivered twenty-two mules to the owners, stating that one had escaped from the car at Canton, and when found would be delivered. The delivery was made by the agent, without payment of freight, that being postponed until some inquiry and adjustment could be made in respect to the missing mule. Afterwards a mule was tendered to Lowenburg & Co., which they declined to take, because not the one that was lost. It was proved that one of Lowenburg & Co.'s mules, in consequence of the breakage of the end of the car, escaped near Canton, but not on the line of the Vicksburg and Meridian road. The Vicksburg and Meridian road held Jones, its agent, responsible for the freight-bill, and deducted its amount from his salary.

There was no proof of the terms of the contract with the first

Lowenburg v. Jones.

carrier. The bill of lading, or the receipt given to the shippers, was not produced on the trial.

The contract with the Iron Mountain Railroad Company may have imposed the duty on that company to safely carry and deliver at the point of destination. If such were its terms, then that company assumed responsibility for the connecting lines, which were its agents, no matter on what line the loss happened: It may be that the terms of the affreightment were such that each carrier was only bound to carry the property safely to the terminus of its line, and then deliver to the next, and so on, until the ultimate destination was reached. If that were its character, then each is responsible for its own default or miscarriage, causing loss or damage. It is well settled that a natural person, being a common carrier, may engage to carry goods beyond the terminus of his line, and thus make connecting carriers his agents. Story on Bail., § 558; Smith's Merc. Law, 367; Pars. on Merc. Law, 217; Perkins v. Portland, etc., R. Co., 47 Me. 588.

By the great weight of authority, the same principle is applicable to a railroad company.

In England, by repeated decisions, the rule has been settled that if a railroad company receives goods "marked for delivery" at a place beyond the terminus of its own line, it undertakes, prima facie, to transport and deliver safely at the place of destination, and would be liable for loss or damage occurring on a connecting line. The company is under its common-law responsibility as carrier, for the whole route, unless by special contract it is limited. Muschamp v. Railway Co., 8 M. & W. 421; Crouch v. Railway Co., 25 Eng. Law and Eq. 287. And the action must be brought against the first carrier. Authorities cited.

Under the English rule, the receiving carrier will be presumed to have made arrangements with the other lines which affect it with liability. Watson v. Railway Co., 3 Eng. Law and Eq. 497; 7 Exch. 699; 16 Eng. Law and Eq. 531.

A less rigorous rule has secured the sanction of most of the Ameri can courts. The principle of the later cases is, that the bare receipt of goods marked for delivery beyond the carrier's line does not, in the absence of a special contract, impose on the receiving carrier a liability for the connecting lines. He has performed his duty by safe carriage to the end of his line and prompt delivery to the next connecting carrier, and so on, until the property has been transported