Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-13
nd Georgia Railroad VS.. Nelson l, Cold.

| ara Georgia railroad VS.. Nelson /, Cold.
| 272.
And many authorities go farther and
| hold that this liability cannot be limited
by notice or express contract. HOlister
vs.. Newlen 10, Nend 234; Cole vs..
Goodwin 10, Wend 25l; Gould vs. Hill, 2
Hill, N. Y. Rep.
And in view of the fact of the con-
stantly increasing business of this char
acter, and the great power exercised by
common carriers over the lives and prop
erty of the citizen, we are not disposed
to weaken, in any degree, the force of
this rule.
Thirdly, Are the United States troops,
who, it is alleged, destroyed these goods,
to be regarded as ''the public enemies"
or 1.-THE enemies of the country" in the
sense OF The law, SO as to excuse the
plaintiff in error for the loss of the goods
caused by these acts, without fault on
the part of the agents of the
company3 His Honor, the Circuit
Judge, decided this proposition in
the negative, and said: "Ths United
States army or troops were not
enemies to the Government, or public en-
emies; they were public friends and
friends to the Government; there was but
one Government in the United States
and that was the United States Govern
ment. :" Consequently the United States
troops, under Gen. SLOVENIAN, United
States General, and commanding for the
United States, were not the enemies of
the United States Government. His
Honor further told the jury 'that the
Confederate States never were recognized
by any Government as a Government de
jtre or de .fdctO. Our Supreme Court
recognized them as belligerents so as 10
regulate criminal intent in robbery and
some other felonies, but no further. The
army of the so-called Confederate States
was an unlawful combination, nothing
bat mob, however huge its proportions
may have been; consequently if the goods
were destroyed by the United States
troops, that would not exoneTate the
company"
We are of opiniJn that the definition as
above given by his Honor of the charac-
ter of the late war, and as to the status of
the Confederate Government, is not cor
rect or accurate; but the only question of
practical importance Is, was he correct in
holding that the United States troops were
rot to be regarded as the public enemy,
ag'inst whose acts the plaintiff in error
did not insure. If he was in error in this,
it was an error affecting the merits, and a
new tIial should he granted. If, on the
other hand, he answered this question
correctly, then the error which followed
in giving a definition of the character of
the reballiOn-a definition which was I'M
necessaIy-was imaateIia', and couldnot
have pIejudiced the plaintiff in error.
The term ''public enemy" or the "enemy
of the country" has, in general, techni- |
cal legal meaning. 1t is understood to
apply 10 foreign nations, with whom |
there is open war, and to pirates, who are |
considered at war with all mankind; but
it does not include robbers, thieves or II
o.erS or insurgents, whatever be their |
violence" Story Contr. 752.
In England the term "publc enemies" |
or ''the Kings enemies, nas applied to the |
law of treason, has been held not to apply |
to insurgents or rebels, they not being en-
emies. Hawkins Pleas of the Crown, |
55.
1t has been held by the Supreme Court |
OF the United States, in anumber of cases
known as the prize cases, that the late re
belliOn was 'ta war" in the legal sense,
as cOntradIstinguished from q mere in
SURE ction, and that as a consequence
OF this in the conduct of the war during
its penGency, the person living upon
either side of the line dividing the con-
tending forces were 10 be regarded as
the enemies of the other, to the extent,
to authorize the forfeiture of the prop
erty of either captured by the other upon
the high seas.
In the case of Thorington vs. Smith,
9 Wallace, l, Chief Justice Chase classes
the Confederate Government among that
class of cases where a foreign govern
ment, at war with orr own for instance,
oh ans temporary possession of portion
CT our country, aud establishes their au-
thOrity over it, and enforces the same by
military power; and referring to the
Confederate Government, says: "Bel-
ligerent rights were conceded to it, and
thereafter its territory held TO be enemy's
territory, and for most purposes lis inhab-
itants held to be enemies
1t is clear that during the war the Lar-
ties upon each side treated each other as
enemies, and this was justified by the laws
and usages of war.
AS an abstract proposition, it cannot
be doubted that the United States Govern
ment was the Tightful government, and
that the war was rightfully prosecuted for
the enforcement of IFS laws, and the at
tempted revolution being unsuccessful,
no portion of the citizens were at any
time released from their allegiance to the
rightful government however, they may
be excused or justified rendering obedi-
eace to the usurped government in civil
matters, so long as this obedience might
have been enforced by actual military
power, and We are not to be understood
As announcing the proposition that in
reality the United States Government or
troops were the pu enemy of its own
citizens during the Progress of the war.
Bot in constituting this contract and de-
the rights and liabilities
o the parties themselves, we must
give the term spublic enc
N.Y." 4 "epemy of tle country"
the meaning that attached 10 it at the
time and pace the contract was made.
We have seen that at the date of this
both parties resided within
the military lines Of the Confederate
States" We have also seen that at that
time, ''fOr most purposes" the people
upon each side of the dividing line were
treated as the enemies of the other. So
that the term public enemy" or ''enemy
of the country" as understood and ap-
pied by the contracting parties at the time,
included the troops or the United States
and that the plaintiffs in
error are not, under the circumstances, to
be held as insurers against loss that
might occur by the act of the United |
States troops.
Such was not the legal import of the
contract they made, or its meaning ss
they then understood it.
1t follows, therefore, that while in one |
sense the proposition of his Honor was
correct, it was not the proper instruction |
to the facts of the case. For
this error alone we reverse the Judgment
and remand the cause for a new trial.
There is evidence in the record upon
which the plaintiffs in error might well
have been held liable for their failure to
carry the goods or return them before the
time they are alleged to have been de-
stroyed by the United States troops; but
as this was a question of fac, they were
entitled to have the case submitted to the
jury upon a correct charge.
Reverse the judgment
r. MCFARLAND, Special Judge.
A true copy.