feited to the United States. Monition was duly | sists that the one sixth of the same belonging published, but no one appeared as claimant, to him cannot properly be condemned on either either for the steamer or cargo. Directions of ground, because he was never domiciled in the the decree of condemnation were, that the steam- rebellious States, and because he never emer and cargo, after ten days' public notice, ployed the property, either actually or construcshould be sold by the Marshal, and that the pro- tively, in any illegal trade with the enemy, or ceeds of the sale should be deposited in the reg- in any attempt to break the blockade. istry of the court for distribution, according to Projected voyage of the steamer was from law. Return of the Marshal shows that the no- Mobile to Havana, and the master testified that tice was duly given, and that the sale was made she sailed under the Confederate flag. Proofs as directed by the decree. Proceeds of the sale show that she left her anchorage in the nightwere paid to the Marshal, but before the amount time, and that she was captured, as alleged in was actually deposited in the registry of the the libel, after a brisk chase by several of our court the appellant filed his petition of inter- blockading squadron, more than two hundred vention, claiming one sixth of the proceeds, miles from the port of departure. When captupon the ground that he was the true and law- ured, she had on board a permanent register, ful owner of one sixth part of the vessel and issued at Mobile under Confederate authority, cargo. Allegations of the petition of interven- and which described her owners as trustees of tion were, in substance and effect, as follows: a certain association, and citizens of the Confederate States.

1. That the petitioner was, and for many years had been, a citizen of the State of Indiana; that at the breaking out of the Rebellion he was a member of the firm of Cox, Brainard & Co., at Mobile, Alabama; that the partners of the firm, as such, were the sole owners of the steamer and cargo; and that he had never parted with his share or in any way transferred his interest in the partnership.

Testimony of the master showed that the cargo, which consisted of seven hundred bales of cotton, three thousand two hundred staves, and one hundred and twenty-five barrels of turpentine, was consigned to parties in Havana, and that the shipment was for the benefit of owners residing at the home port. Except an informal manifest, the steamer had no papers on board 2. That the steamer, after the Rebellion broke relating to the cargo, and the master testified out to the time of the capture, was continually that she carried none for the consignee, "for in the waters of the rebellious States, and under fear of being captured." He was appointed by the control and management of those engaged the trustees, and he also testified that his inin the Rebellion, which rendered it impractica-structions were to elude the blockading vessels ble and unlawful for him to proceed to the place if possible, but not to resist in case he was unwhere the steamer was, or to exercise any con- able to escape. Ship's company consisted of trol over the steamer or any part of the part- thirty men, and all the officers and crew, with nership property. one exception, were citizens of the enemy country. Direct admission is made by the master in his testimony that he stole out of the harbor, and that the steamer and cargo were captured for breach of blockade. Such an admission was hardly necessary to establish the charge, as every fact and circumstance in the case tended to the same conclusion. Five sixths of the steamer and cargo were, confessedly, enemy property, and the whole adventure was projected and prosecuted for the benefit of resident enemy owners. None of these facts are controverted by the appellant, but he insists that, inasmuch as he was domiciled in a loyal State, and had no connection with the adventure or the voyage, his interest cannot properly be held liable to capture.

3. That he was, and always had been, a true and loyal citizen; that he had never given any aid, encouragement or assistance to the Rebellion, and that he had no connection with or knowledge of the unlawful voyage of the steamer on account of which she was condemned as lawful prize.

4. That some court of the Confederate States, so called, at some time in the year 1862, had condemned and confiscated his interest in the partnership, but he averred that the decree was wholly nugatory and void, and that his interest in the steamer and cargo had never been extinguished or destroyed.

Basing his claim upon these allegations of fact, he prayed that he might be paid out of the proceeds of the sale one sixth of the amount required to be paid into the registry of the court. Exceptions were filed to the petition of intervention, but they were overruled by the court, and the district attorney appeared and admitted that all the facts therein alleged were true. Parties were heard as upon an agreed statement, and the district court entered a decree that the intervention and claim of the petitioner be rejected and dismissed, with costs. Appeal was taken by the intervenor from that decree, and he now seeks to reverse it upon the ground that he, as owner of one sixth part of the steamer and cargo, is entitled to one sixth of the pro ceeds of the sale.

1. Captors contend that the steamer and cargo were both rightfully condemned as enemy property, and also for breach of blockade. Appellant denies the entire proposition as respects his interest in the captured property, and in

2. War necessarily interferes with the pursuits of commerce and navigation, as the belligerent parties have a right, under the law of nations, to make prize of the ships, goods and effects of each other upon the high seas. Property of the enemy, if at sea, may be captured as prize of war, but the property of a friend cannot be lawfully captured, provided he observes his neutrality. Public war, duly declared or recognized as such by the war-making power, imports a prohibition by the sovereign to the subjects or citizens of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country. Jecker v. Montgomery, 13 How., 498.

Neutral friends, or even citizens, who remain in the enemy country after the declaration of war, have impressed upon them so much of the character of enemies, that trading with them becomes illegal, and all property so acquired is

liable to confiscation. The Hoop, 1 C. Rob., | ests as in the nature of things could not be re196; The Rapid, 8 Cranch, 155; Potts v. Bell, moved. 8 T. R., 561; Wheat. Int. Law, by Lawrence, 547.

Part owners of ships are seldom partners in the commercial sense, because no one can become the partner of another without his consent, and because if they acquire title by purchase, they usually buy distinct shares at dif. ferent times, and under different conveyances, and even when they are the builders they usually make separate contributions for the purpose. Generally speaking, they are only tenants in common; but the steamer, in this case, belonged to the partnership, and throughout the Rebellion to the time of capture was controlled and managed by the partners in the enemy country. Helme v. Smith, 7 Bing., 709. Even where the part owners of a ship are tenants in common, the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of a ship's husband as managing owner. Smith, Merc. Law, 6th ed., 197.

Open war had existed between the belligerents for more than two years before the capture in this case was made, and yet there is not the slightest evidence in the record that the appellant ever attempted or manifested any desire to withdraw his effects in the partnership, or to dispose of his interest in the steamer. Ef. fect of the war was to dissolve the partnership, and the history of that period furnishes plenary evidence that ample time was afforded to every loyal citizen desiring to improve it, to withdraw all such effects and dispose of all such interests. "Partnership with a foreigner," says Maclachlan, is dissolved by the same event which makes him an alien enemy;" and Judge Story says, that there is in such cases an utter incompatibility created by operation of law between the parties as to their respective rights, duties, and obligations, both public and pri vate, and, therefore, that a dissolution must necessarily result therefrom, independent of the will or acts of the parties. Griswold v. Waddington, 15 Johns., 57; S. C., 16 Johns., 438; Macl., Ship., 475; Story, Part., sec. 316.

Admiralty, however, in certain cases, if no ship's husband has been appointed, will interfere to prevent the majority from employing Executory contracts with an alien enemy, or the ship against the will of the minority with even with a neutral, if they cannot be perout first entering into stipulation to bring back formed except in the way of commercial interthe ship or pay the value of their shares. But course with the enemy, are ipso facto dissolved the dissenting owners, in such a case, bear no by the declaration of war, which operates to part of the expenses of the voyage objected that end and for that purpose with a force to, and are entitled to no part of the profits. equivalent to that of an Act of Congress. Such are the general rules touching the em-posito v. Bowden, 7 El. & B., 763. ployment and control of ships; but unless the co-owners agree in the choice of a managing owner, or the dissenting minority go into ad miralty, the majority in interest control the employment of the ship and appoint the master. Maude & P., Ship., 67, 72.

Tenants in common of a ship can only sell their own respective shares; but where the ship belongs to a partnership one partner may sell the whole ship. Wright v. Hunter, 1 East, 20; Lamb v. Durant, 12 Mass., 54; 3 Kent, Com., 11th ed., 154.

3. Proclamation of blockade was made by the President on the 19th day of April, 1861, and on the 13th day of July, in the same year, Congress passed a law authorizing the President to interdict, by proclamation, all trade and intercourse between the inhabitants of the States in insurrection and the rest of the United States. 12 Stat., 257.

Es

Duty of a citizen when war breaks out, if it be a foreign war and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in a rebellious section, he should leave it as soon as practicable and adhere to the regular established government. Domicil, in the law of prize, becomes an important consideration; because every person is to be considered in such proceedings as belonging to that country where he has his domicil, whatever may be his native or adopted country. The Vigilantia, 1 C. Rob., 1; The Venus, 8 Cranch, 288; 3 Phil., Int. Law., 128.

4. Personal property, except such as is the product of the hostile soil, follows as a general rule the rights of the proprietor; but if it is suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is, therefore, justly reProvision of the 6th section of the Act is, quired of citizens resident in the enemy country, that after fifteen days from the issuing of such or having personal property there, in changing proclamation, "any ship or vessel belonging in their domicil, severing those business relations, whole or part to any citizen or inhabitant" of or disposing of their effects, as matter of duty a State or part of a State, whose inhabitants to their own government, and as tending to shall be so declared to be in insurrection, if weaken the enemy. Presumption of the law found at sea or in the port of any loyal State, of nations is against one who lingers in the may be forfeited. Reference is made to those enemy's country, and if he continue there for provisions, as showing that our citizens were much length of time, without satisfactory exduly notified that Congress, as well as the Presi-planations, he is liable to be considered as remdent, had recognized the undeniable fact that orant, or guilty of culpable delay. and an civil war existed between the Constitutional enemy. The Ocean, 5 C. Rob., 91; The Venus, Government and the Confederate States; and 8 Cranch, 278; Macl., Ship., 480. that seasonable notice was given to all whose interests could be affected, and that ample opportunity and every facility were extended to them, which could properly be granted, to enable them to withdraw their effects from the States in rebellion, or to dispose of such inter

Ships purchased from an enemy by such persons, though claimed to be neutral, are for the same reasons liable to condemnation, unless the delay of the purchaser in changing his domicil is fully and satisfactorily explained. Omission of the appellant to dispose of his interest

are allowed to allege and prove the real character of the vessel. Meaning of the rule is that the ship is bound by the character impressed upon her by the authority of the government from which all her documents issue, and Chancellor Kent says this rule is necessary to prevent the fraudulent mask of enemy's property. 1 Kent, Com., 11th ed. 91. Adopting that rule, Dr. Lushington held, in the case of The Industrie, 33 Eng. L. & E., 657, that the share of a neutral in ownership, though purchased before the war, was subject to condemnation equally with the shares of enemies in the same ship. Principal of the decision is, that whoever embarks his property in shares of a ship is, in general, bound by the character of the ship, whatever it may be; and that principle is as ap

in the steamer, and his failure to withdraw his effects from the rebellious State, are attempted to be explained and justified, because the same were, as alleged in the petition, confiscated during the Rebellion under the authority of the rebel government. More than a year, however, had elapsed after the proclamation of blockade was issued before any such pretended confisca tion took place. Members of a commercial firm domiciled in the enemy country, whether citizens or neutrals, after having been guilty of such delay in disposing of their interests or in withdrawing their effects, cannot, when the property so domiciled and so suffered to re main is captured as prize of war, turn round and defeat the rights of the captors by proving that their own domicil was that of a friend, or that they had no connection with the illegal voy-plicable to a citizen, after due notice and reasonage. able opportunity to dispose of his shares, as Property suffered so to remain has impressed to a neutral. The Primus, 29 Eng. L. & E., upon it the character of enemy property, and may 589. may be condemned as such, or breach of blockade. Prize courts usually apply these rules where the partnership effects of citizens or neutrals is suffered to remain in the enemy country, under the control and management of the other partners who are enemies. But there are other rules applicable to ships owned under such circumstances, which must not be overlooked in this case.

5. Courts and text-writers agree that ships. are a peculiar property, and that such peculiarity assumes more importance as a criterion of judicial decision in war than in peace. They have a national character, as recognized by the law of nations, because they regularly carry the flag of the nation to which they belong. Evidences of ownership are also peculiar, but vary somewhat according to the laws of the country in which the ships are built, or in which they are owned. Wheat. Int. Law, by Lawrence, p. 580.

Commercial nations generally have, for the advancement of their own individual prosper ity, conferred great privileges upon the ships belonging to their own citizens and, in consideration thereof, have imposed upon their own ers certain special duties and obligations. Usually they are required to be registered at the home port, and they are not allowed to sail on any voyage, foreign or coasting, without such papers as the laws of the country to which they belong require. Abb. Ship., 72.

American vessels sailing for a foreign port are, in all cases, required by law to carry a passport, and it is generally admitted that such a document is indispensable in time of war. Act, June, 1793, ch. 45 (1 Stat. 489).

When a ship is captured as prize of war she is bound by the flag and pass, under which she sailed. Owners are also bound by those insignia of national character. They are not at lib erty when they happen to be evidence against them to turn round and deny the character the ship has assumed for their benefit. Story, Prize, 61; The Vrow Elizabeth, 5 C. Rob., 3; The Fortuna, 1 Dod., 87; The Success, 1 Dod. 132.

Established rule is that, when the owners agree to take the flag and pass of another country, they are not permitted, as matter of convenience in case of capture, to change the position they have voluntarily chosen, but others

6. Decision of Lord Stowell, in the case of The Mercurius, 1 C. Rob., 80, was that violation of blockade by the master affects the ship, but not the cargo, unless it is the property of the same owner, or unless the owner of the cargo was cognizant of the intended violation.

Proofs show that the cargo in this case was the property of the same owners and, therefore, the case being within the principle of that decision, the cargo must follow the fate of the ship. Subsequent cases, however, decided by the same learned judge, appear to have carried the rule much further, and to have established the doctrine in that country that when the blockade was known, or might have been known, to the owners of the cargo at the time when the shipment was made, the master shall be treated as the agent of the cargo, as well as of the ship, and that the former, as well as the latter, is liable to capture and condemnation. The Alexander, 4 C. Rob., 94; The Adonis, 5 C. Rob., 259; The Exchange, 1 Edw. Adm., 39; The James Cook, 1 Edw. Adm., 261.

Latest reported decision in that country is that of Baltazzi v. Ryder, 12 Moore, P.C., 183, which was heard on appeal before the Privy Council, and the determination, both in the admiralty court and in the appellate court, was that where the cargo belonged to the same own ers as the ship, the owners of the cargo, as well as the ship, were in general concluded by the illegal act of the master.

Giving full effect to the admissions in this case, the appellant shows no just ground for the reversal of the decree made by the district court.

7. Since the appeal was entered in this court the other partners have filed a petition here, asking leave to intervene for their interests, and claiming the other five sixths of the vessel and cargo. They were not parties in the court below, having never appeared in the suit or made any claim whatever, and of course did not and could not, appeal from the decree. Substance of their excuse for not appearing in the district court is that they were residents in a State hostile to the United States and, conse quently, that they had no standing in that court, by reason of such disability. Statement of the petition also is, that those disabilities continued until after the case was removed into this court by appeal; but they allege that since

that time they have severally received the pardon of the President for all pains and penalties incurred for breach of blockade, and for all of

[No. 141.]

Argued Feb. 21, 1867. Decided Apr. 22, 1867.
IN ERROR to the Circuit Court of the Unit-

Ned States for the Northern District of 11

linois.

The defendant in error, executor of William Barron, deceased, brought his action in the court below, against the plaintiff in error, for damages occasioned by the death of his testator, January 8, 1852, while getting off a car of the plaintiff in error, about three hundred feet north of the Kenwood Station, near Chicago. The judgment was rendered for plaintiff below in the sum of $3,750.

fenses committed by them in the Rebellion, and by reason of the premises they pray that their proportion of the proceeds of the sale of the steamer and cargo may be restored to them. Irrespective, however, of any question which might otherwise arise as to the effect of the pardon, it is quite clear that the case is not properly before the court. Settled rule in this court is that no one but an appellant in such a case can be heard for the reversal of a decree in the subordinate court. Buckingham v. McLean, 13 How., 150; Harrison v. Nixon, 9 Pet., 484; Canter v. Am. Ins. Co., 3 Pet., 318; Strat- The deceased resided in Hyde Park on the ton v. Jarvis, 8 Pet., 4; Airey v. Merrill, 2 line of the Illinois Central Railroad, about six Curt. C. C., 8; Allen v. Hitch, 2 Curt. C. C., 147. miles south of Chicago, where his business was, 8. Appellees are always heard in support of and was in the habit of passing daily on a train the decree, but they cannot have any greater of the plaintiff in error, which ran between Chidamages than were assessed in the court of sub-cago and Woodlawn, a station about three miles ordinate jurisdiction. Intervenors here, how-south of Hyde Park, and which train was known ever, are neither appellants nor appellees, as they as the Hyde Park train. At Calumet, a station did not appear as claimants in the district court, six miles south of Woodlawn, the Michigan and were not in any way made parties to the Central Railroad connects with the Illinois Cenlitigation. Original jurisdiction in prize, as tral Railroad, and the trains of both Companies well as in all other admiralty causes, is vested run thence on the Illinois Central Railroad to exclusively in the district courts. Property Chicago. On the morning on which the testacaptured, where appeals are allowed to the cir- tor was killed, the Hyde Park train was from cuit court, follows the cause into that court, five to seven minutes behind its regular time, but it does not in any case follow the cause when it arrived at Hyde Park, where he got on into this court, because this court has no orig. board, and when passing at Kenwood, three inal jurisdiction in such cases. The Collector, 6 quarters of a mile northerly, was from seven to Wheat., 194; Jennings v. Carson, 4 Cranch, 28. ten minutes behind its usual time of passing. It Evidently the application, in this case, is in was, however, an accommodation train, making its nature original, and not appellate, and it is frequent stops and occupying twenty-five minwell settled that this court has no original juris utes in running between Woodlawn and Chicadiction in prize causes. The Harrison, 1 Wheat., go, a distance of eight and three quarters miles, 298; Marbury v. Madison, 1 Cranch, 173. Such and was at the time of the collision running on an application cannot be first presented in this the time allowed it by the regulations between court and allowed, because it would be assum- Woodlawn and Chicago, and, but for the colliing jurisdiction not granted either by the Con- sion, would have reached Chicago within its stitution or the laws of Congress. proper time.

Petition of intervention is dismissed, and the decree of the District Court affirmed.

Cited 6 Wall., 535; 9 Wall., 672; 11 Wall., 250; 12 Wall., 41, 135; 13 Wall., 741; 14 Wall., 201; 94 U. S.. 599: 96 U. S., 301; 101 U. S., 617; 1 Dill., 381, 576; 9 Blachf., 243; 50 N. Y., 170; 66 111., 298; 68 Ill., 361; 3 Am. Rep., 688 (43 N. Y. 164); 7 Am. Rep., 739 (45 Miss.,581); 7 Am. Rep., 196 (32 Iowa, 302); 13 Am. Rep., 565 (54 N. Y. 43).

THE ILLINOIS CENTRAL RAILROAD
COMPANY, Plff. in Err.,

v.

WILLIAM BARRON.

(See S. C., 5 Wall., 90-106.)

Liability of railroad, for death by negligencecaused by train of another road-damages, measure, and rule of.

Where a Railroad Company owned the road upon which it was running the car in which a passenger was killed by a collision, it was liable for such death, although the collision was caused by the fault of another train, run by its permission, by another Company, on the same road. The proper measure of damages, under the Illinois Act, is the pecuniary injuries resulting, in the judgment of the jury, to the wife and next of kin.

It is not necessary to a recovery in such action that it be shown that the widow and next of kin had a legal claim on the deceased, for support.

The Cincinnati express train of the Michigan Central Railroad Company was a very fast train. At the time the Hyde Park train left Woodlawn, the Cincinnati train was nearly an hour behind the regulation time, and had lost its precedence of the Hyde Park train from Woodlawn to Chicago. From Calumet to Woodlawn, a distance of six miles, the railroad track was straight. When the Hyde Park train started from Woodlawn for Chicago, the Cincinnati train was not in sight. Shortly afterwards it came up, and passed Woodlawn and Hyde Park at a very high rate of speed. But before reaching Hyde Park a curve commences, which extends to within twelve or fifteen hundred feet of Kenwood, whence the road is straight to Kenwood. When the Hyde Park train passed Kenwood, the Cincinnati train was seen approaching at a very high rate of speed, and at a distance of three fourths of a mile; the track was icy, so that the Hyde Park train could not get in rapid motion. The Hyde Park train was in plain sight from the Cincinnati express train, and there was abundant time and space to have brought the latter train to a stop between the end of the curve and the place of collision, if it had been properly managed. The conductor of the Cincinnati express train was provided with the time table and card regulating the running of the trains of both Companies, and there