VI WALLACE. 6 Wall. 1-15, 18 L. 836, MAURAN v. ALLIANCE INS. Co. Insurance. A capture within meaning of a marine insurance policy, may be a taking by the enemy; taking of a neutral ship by a belligerent, juri belli; by a friendly power in time of peace; or even by the government to which it belongs, p. 10. War.- Capture is deemed lawful only when made by a declared enemy, lawfully commissioned, and according to laws of war, p. 10. Insurance. Where policy insures against capture, insurer is liable whether capture be lawful or unlawful, p. 10. States. All proceedings of Southern States whereby existing governments were overthrown and new ones erected, were wholly void, p. 13. Cited and applied in Hall. v. Hall, 43 Ala. 498, 499, 502, 94 Am. Dec. 708, 709, 711, holding guardian liable for investment in Confederate funds, made under laws of insurrectionary State government; Ex parte Norton, 44 Ala. 180, holding lawful State government may authorize new trials of causes tried by courts under insurrectionary government; Todd v. Neal, 49 Ala. 269, holding person appointed notary by insurrectionary government of Louisiana, not a notary de facto, and his protest ineffective; Noble v. Cullom, 44 Ala. 560, 564, 581, holding courts created by secession government of Alabama, illegal, and their judgments void; Scruggs v. Mayor, etc., 45 Ala. 222, holding Alabama Constitution adopted during secession void, and former Constitution not abrogated thereby; Mosely v. Tuthill, 45 Ala. 648, 649, 6 Am. Rep. 715, 716, and Cuyler v. Farrell, 1 Abb. (U. S.) 180, F. C. 3,523, holding void, proceedings under decree of Confederate court ordering probate sale; Thomas v. Taylor, 42 Miss. 704, 2 Am. Rep. 635, holding law of insurrectionary government of Mississippi, making cotton notes receivable In payment of taxes, not binding on subsequent legal government. Distinguished in Newton v. Bushong, 22 Gratt. 635, 12 Am. Rep. 557, exempting Virginia executor from liability for surrendering to Confederate government under its laws, money bequeathed to Indiana legatee. War. While Confederate government was not a lawful government, it was one in fact, so as to be deemed the ruling power over Its territory, and to be accorded many belligerent rights by the United States, which conducted the war as a public war, p. 14. 788 Cited and principle applied in New Orleans v. Steamship Co., 20 Wall. 394, 22 L. 358, holding lease made by Federal military governor, valid as act of conquering power; Mitchell v. United States, 21 Wall. 351, 22 L. 587, holding purchase of cotton in Confederacy by citizen of loyal State commerce with enemy and void; Ford v. Surget, 97 U. S. 616, 619, 24 L. 1025, 1026, affirming S. C., 46 Miss. 155, holding destruction of cotton by order of Confederate authorities a legitimate act of belligerency and destroyer not liable; Coolidge v. Guthrie, 1 Flipp. 99, F. C. 3,185, holding sale of captured cotton by military officer, valid; Kanawha Coal Co. v. Kanawha, etc., Co., 7 Blatchf. 409, F. C. 7,606, holding rebellion a public war, and sale of land by resident of Confederacy to resi dent of New York, void; Ford v. Surget, 46 Miss. 155, holding destruction of cotton by order of Confederacy a legitimate belligerent act, and destroyer not liable; Wellman v. Wickerman, 44 Mo. 486, holding seizure and sale of mare by Federal military officer an act of belligerency, and title passed thereby; De Jarnett v. De Giverville, 56 Mo. 444, holding Civil War a public war, and commerce between citizen of loyal and seceding States interdicted; De Rothschilds v. Auditor, 22 Gratt. 49, holding State not liable for destruction by Confederates of tobacco stored in State warehouse, same being act of belligerency. Cited in Coppell v. Hall, 7 Wall. 554, 19 L. 247, arguendo, British consul's contract to protect rebel cotton during war, void; The Ambrose Light, 25 Fed. 430. 446, arguendo, ship commissioned by Colombian insurgents, not a pirate, collecting cases. Cited generally in Pfeuffer v. Maltby Cases, 54 Tex. 462, as to status of Confederate government. Cited in dissenting opinions in Sprott v. United States, 20 Wall. 471, 22 L. 374, arguendo, Confederacy possessed power to hold personal property, majority contra; The Emancipation Cases, 31 Tex. 543, as to status of Confederate government. Qualified in Billgerry v. Branch, 19 Gratt. 409, 100 Am. Dec. 689, holding existence of war did not release indorser where parties were residents of seceding States, they being still citizens of the United States; Caperton v. Martin, 4 W. Va. 159, 160, holding ples of belligerency no defense against detention of citizen by Confederate provost marshal. Insurance.- Seizure of a ship by Confederate naval forces, constituted capture within terms of warranty, assuming risk from capture, p. 14. Cited and applied in Lewis v. Ludwich, 6 Cold. 372, 98 Am. Dec. 457, holding common carrier not liable for non-delivery of goods captured by organized rebels. Cited in 86 Am. Dec. 532, note on capture by Confederate navy. Distinguished in Babbitt v. Sun Ins. Co., 23 La. Ann. 316, holding seizure of vessel by mob without pretext of authority, not capture within terms of warranty. Miscellaneous.- The Three Friends, 166 U. S. 60, 41 L. 917, 17 S. Ct. 501, citing brief in principal case; Louisville R. R. v. State, 8 Heisk. 788, erroneously cited. 6 Wall. 15-18, 18 L. 818, HAIGHT v. RAILROAD CO. Railroads. Provision in mortgage that company pay interest on bonds without any deduction on account of taxes is not violated by the railroad's conduct in withholding the amount of a tax levied under revenue act of 1864, upon such bondholder's interest, p. 18. Cited in United States v. Baltimore, etc., R. R., 17 Wall. 325, 21 L. 599, affirming S. C., 24 Fed. Cas. 978. See next syllabus. Internal revenue.- Tax levied under revenue act of 1864, upon interest due on railroad bonds, is a tax upon the bondholder, p. 18. Followed in United States v. Baltimore, etc., R. R., 17 Wall 325, 21 L. 599, affirming S. C., 24 Fed. Cas. 978, holding such duty a tax on bondholder, which for convenience may be paid by company. Applied in United States v. Erie Ry., 106 U. S. 332, 27 L. 154, 1 S. Ct. 229, holding company liable for amount of tax on interest paid in full by it to bondholder; New Jersey, etc., R. R. v. Beardsley, 35 N. J. L. 481, holding court may deduct amount of tax from bondholders' judgment for interest, company having paid tax. Cited in Street R. R. Co. v. Morrow, 87 Tenn. 426, 11 8. W. 353, 2 L. R. A. 860, as authority for sustaining Tennessee act, containing like provisions; Ammidown v. Freeland, 101 Mass. 310, 3 Am. Rep. 362, where purchaser was held liable for duty paid by vendor, under chapter 173, section 97, act of 1864, a similar act. Followed in dissenting opinion in Barnes v. Railroads, 17 Wall. 319, 21 L. 551, majority holding said duty a tax upon the company. Departed from in United States v. Louisville & N. R. Co., 83 Fed. 831, holding said duty a tax upon business of company. 6 Wall. 18-30, 18 L. 806, THE AMELIE. Shipping.- Master of vessel has power to sell her in case of necessity, without express authority from owner, p. 26. Cited and applied in McCall v. Sun, etc., Ins. Co., 66 N. Y. 517, where master sold wrecked bark, expense of repairs exceeding her value. Qualified in Astsrup v. Lewy, 19 Fed. 541, holding master must communicate with owner if possible; The Julia Blake, 107 U. 8. 428, 27 L. 599, 2 S. Ct. 699, holding sale void where master had opportunity to communicate with owner, but neglected it. Shipping.- Sale of ship by her master becomes a necessity when nothing better can be done for owners, p. 27. Cited and applied in The Bark Herald, 8 Ben. 411, F. C. 6,393, holding condition fulfilled where repair would amount to twothirds ship's value, master lacking funds; L'Amerique, 35 Fed. 843, holding necessity a question of fact, dépending on circumstances. See 63 Am. Dec. 639, note, reviewing cases, on master's power to sell ship. Shipping.— To justify a master in selling his ship, good faith and necessity must concur (mere expediency being insufficient), and purchaser must prove both, pp. 27-30. Cited and applied in The Raleigh, 37 Fed. 126, holding sale valid where ship was bought by one of the surveyors, but with underwriters' approval, and at public auction. Cited Astsrup v. Lewy, 19 Fed. 541, holding master's right to sell limited by nature of necessity. Cited generally in McCall v. Sun, etc., Ins. Co., 66 N. Y. 517, and The Trenton, 4 Fed. 662, holding sale justifiable under circumstances of each case; note in 63 Am. Dec. 638, 639, on "master's power to sell his vessel," collecting cases. Cited in Howland v. India Ins. Co., 131 Mass. 255, denying application where owners could have been but were not notified; The Bridgewater, 4 Fed. Cas. 107, as enunciating above rule. Shipping. Before selling his ship, master must, if possible, consult her owners, and cause her to be surveyed by disinterested parties, capable of advising as to whether or not she can be repaired, p. 27. Cited and applied in The Bark Herald, 8 Ben. 411, F. C. 6,393, where communication with owners was unfeasible and surveyors advised sale; Howland v. India Ins. Co., 131 Mass. 255, holding sale invalid where master, having the opportunity, failed to notify owners; The Julia Blake, 107 U. S. 428, 27 L. 599, 2 S. Ct. 699, holding hypothecation of cargo void, where it could have been forwarded by another ship, and master had opportunity to notify owner. Cited in The Blue Jacket, 10 Ben. 252, F. C. 1,569, and The Bridgewater, 4 Fed. Cas. 107, to point that advice of surveyors is strong evidence in justification of master's proceedings. Cited generally in Astsrup v. Lewy, 19 Fed. 541, as to necessity for communication with owners; McCall v. Sun, etc., Ins. Co., 66 N. Y. 517, as defining master's duties before selling; note in 63 Am. Dec. 240, on "master's power to sell his vessel," collecting cases. Shipping. When ship is lawfully sold by the master, purchaser takes absolute title, divested of all liens, which are transferred to proceeds of sale, p. 30. Cited and relied upon in Meissner v. Stein, 72 Ga. 236, holding pilot's lien followed proceeds of sale, not ship. Cited generally in The Lottawanna, 20 Wall. 221, 22 L. 263, holding proceeds of sale payable intact to owner, no liens existing; The Trenton, 4 Fed. 659, 662, holding sale under decree of foreign Admiralty Court will be held valid everywhere; note in 63 Am. Dec. 241. Shipping. Where ship is sold by her master, bill of sale is unnecessary to pass title, p. 30. Followed in Scranton v. Coe, 40 Conn. 162, and The Marion S. Harris, 85 Fed. 799, 56 U. S. App. 106, both holding sale complete on payment and delivery, and bill of sale unnecessary. Cited gen erally in Navigation Co. v. Vancouver, etc., Co., 32 Or. 536, 52 Pac. 514, holding written authority unnecessary for execution of lease of steamer. Cited but application denied in Dize v. Beachem, 81 Md. 609, 32 Atl. 245. Shipping.- Sale by master, in Hayti, of disabled ship, owned in Holland, after careful survey by five disinterested persons appointed by Dutch consul, who advised such sale as necessary, held valid, p. 30. Cited and applied in McCall v. Sun, etc., Co., 66 N. Y. 517, holding sale under similar circumstances was necessary, and did not affect insurance company's liability; The Raleigh, 32 Fed. 635, holding fact that it subsequently appeared that ship was not severely injured, did not invalidate sale. 6 Wall. 31-35, 18 L. 749, SOUTHERN S. S. CO. v. PORT WARDENS. Commerce. Exclusive power to regulate interstate commerce was given Congress, with intent to place it beyond interruption from conflicting or hostile State laws, p. 33. Cited in Webb v. Dunn, 18 Fla. 724, holding State law levying harbor fees, irrespective of services rendered, unconstitutional. Commerce.- Power of Congress over interstate commerce was not intended to interfere with jurisdiction of States over subjects properly within their sphere, such as quarantine, health, police and internal trade, p. 33. Cited and applied in Morgan's, etc., Co. v. Board of Health, 36 La. Ann. 669, 670, upholding State quarantine law. Distinguished in Williams v. The Henderson, 29 Fed. Cas. 1374, holding Florida act exempting ships owned in State from halfpilotage fees, not a police regulation, and void. States.- Congress by omission to exercise certain powers has left to States, regulation of some matters clearly within such powers, p. 33. Cited in Phelps v. Racey, 60 N. Y. 15, 19 Am. Rep. 144, upholding law prohibiting sale of game from other States at certain seasons. |