Opinion of the court.

But it is said it was the province of the court, and not the jury, to determine the point of time at which the service was ended; that as the facts were undisputed, it was a question of law, and the court should have told the jury the relation of master aud servant subsisted when the accident happened.

We do not think so. One of the theories on which the suit was prosecuted was that McCue's special employment had ceased when he was injured. This theory was resisted by the defence, and the court, not taking upon itself to determine as an absolute proposition when the employment terminated, left it to the jury to find how the fact was. This ruling, in our opinion, was correct. It was for the jury to say, from the nature of the employment, the manner of engaging the hauds, the usual mode of transacting such a business, and the other circumstances of the case, whether the service had or had not ceased at the time of the accident. The point was submitted fairly to the jury, with no more comments than the evidence justified. It was argued by the plaintiff in error that the employment of necessity terminated on the land, because it was there McCue was engaged to do the work, and he had the right to be provided with the proper means of reaching it from the boat. Ou the contrary, the defendant in error contended the special service ceased when McCue had finished his work and was paid off; that after this he was not subject to the control or direction of the officers of the boat, but at liberty to stay on the boat or go off as he pleased. The jury took this latter view of the relation of the parties, and we cannot say that they did not decide correctly. At any rate, their decision. on a question of fact is not subject to review in this court. The defence at the best was a narrow one, and in our opinion more technical than just.

JUDGMENT AFFIRMED.

[See Railroad Company v. Fort, infra, p. 553.]

Statement of the case.

GOODWIN v. UNITED STATES.

In August, 1865, at the close of the rebellion, A. chartered a vessel to the United States, at a fixed sum per day, to carry military stores from Wilmington, North Carolina, to the city of New York, A. warranting her to be then "tight, staunch, and strong," and agreeing that while in the service of the government she should be kept so, and that the time lost by her not being so should not be paid for by the government; "the war risk to be borne by the United States, the marine risk by the owners.” On her voyage she sprung a leak and put into the island of St. Thomas, raised money there on a bottomry bond, and with it was repaired. Arriving in New York, and the bottomry bond not being paid, the vessel and cargo were libelled by the holder of the bond, attached by the marshal, and retained by him from the 10th of March to the 30th of July, a space of one hundred and forty-four days; when a decree was made against the vessel, and the cargo was liberated. The vessel was discharged from the service of the United States on the 7th of August following.

On a suit in the Court of Claims by A. to recover the per diem of $50 a day, for the one hundred and forty-four days, during which the vessel was detained by the marshal, held that the United States was not liable for a per diem during that term; that the detention was incident to the "marine risk," which the owner had expressly assumed, and that the United States not having been blameworthy, there was nothing to shift the burden from the party on whom the contract placed it.

APPEAL from the Court of Claims, in which court one Goodwin, who had chartered a schooner to the United States, at a fixed per diem, sought to recover the per diem during one hundred and forty-four days in which, under the circumstances hereinafter mentioned, the vessel had been detained by the marshal of the United States on a libel filed against her.

The Court of Claims dismissed his petition, and Goodwin took this appeal.

Mr. T. J. D. Fuller, for the appellants; Messrs. G. H. Williams and C. H. Hill, contra.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

The charter-party out of which this controversy has arisen

Statement of the case in the opinion.

is dated on the 26th of August, 1865. It stipulates, among other things (1), that the schooner was then, and while in the service of the government should be kept, "tight, staunch, and strong," at the cost of the owners, and that the time lost by any deficiency in these respects should not be paid for by the United States. "The war risk to be borne by the United States, the marine risk by the owners." (2) The United States agreed to pay $50 per day for the time the vessel was engaged in their service.

On the 17th of November, 1865, pursuant to the charterparty, the schooner left Wilmington, in North Carolina, for the port of New York, laden with ordnance and ordnance stores. On her way she sprung a leak and was compelled to bear away and put into the port of St. Thomas, in the West Indies, for repairs. There the captain executed a bottomry bond, binding the vessel and cargo, and amounting, principal and interest, to $17,399.71. Having received the necessary repairs the vessel left St. Thomas on the 26th of January, 1866, and reached New York on the 13th of February ensuing. There, the bottomry bond not being paid at maturity, the vessel and cargo were libelled in the District Court, and, on the 10th of March, they were attached on that proceeding. The District Court dismissed the libel. An appeal was taken to the Circuit Court. That court affirmed the decree as to the cargo but reversed it as to the vessel, and finally decreed against the latter for the amount due on the bond. The vessel was held by the marshal under the attachment from the 10th of March until the 30th of July. She was discharged from the service of the United States on the 7th of August.

A claim was made against the United States in general average. It was adjusted and paid to the satisfaction of the owners. All the per diem compensation claimed has also been paid except that for the time the vessel was in the hands of the marshal. Whether the claim for general average, and that for the time lost by the vessel in deviating from her course, going to St. Thomas, there awaiting re-. pairs, and going thence to her port of destination, were not

Syllabus.

covered by the marine risk she had assumed, are questions not before us, and which we need not, therefore, consider.

The claim of per diem compensation for the time the marshal held the vessel, is the only ground of controversy between the parties, and it is the only subject open for examination in this case.

During that time, she was in the custody of the law, she was in no wise in the employment of the United States nor subject to their control. She did not, and could not render them any service while thus held.

The United States had not stipulated to pay in such a contingency. On the contrary, the detention was incident to the marine risk which the owners had expressly assumed. It was a fruit of that peril. The United States are not blameworthy, and not responsible. The contract puts all such burdens upon the shoulders of the owners. Those burdens cannot be shifted and thrown upon the other party. JUDGMENT AFFIRMED.

CUTNER V. UNITED STATES.

1. A sale made without "a license to trade," by a loyal citizen of the United States, on the 6th of March, 1865, when Savannah was occupied by the Federal troops, to a loyal citizen of New York, of cotton which had been returned by the owner, registered, and taken into possession by the United States, and sent for sale to New York under the Captured and Abandoned Property Act, held void, although the bill of sale of the cotton authorized the attorney of the vendors to receive the proceeds of sale and pay them to the vendees, and was thus argued to have been not a sale of the cotton at Savannah, Georgia, but a sale of claim in Washington, D. C. This was apparently decided under the act of July 13th, 1861, prohibiting and making unlawful "all commercial intercourse between the inhabitants of any State proclaimed to be in a state of insurrection against the United States, and the citizens of the rest of the United States, so long as such condition of hostility should continue;" and the act of July 2d, 1864, making the prohibition applicable to all commercial intercourse to persons being within districts within the lines of National military occupation in such States.

Statement of the case.

2. Held further, the full consideration-money of the purchase having been paid, that the vendor could not sustain a suit in the Court of Claims for the proceeds of the cotton, for the use of the vendee; that the vendor was not entitled to sue for himself, because he had been paid in full; nor entitled to sue for his vendee, because the sale was unlawful and void.

APPEAL from the Court of Claims; the case as found by that court was thus:

Cutner, a loyal citizen of the United States, resident at Savannah, Georgia, one of the States which went into rebellion, was, on the 21st of December, 1864, the owner of thirty bales of cotton. On the day just named Savannah was captured by the army of the United States. On the 23d of February, 1865, Cutuer reported his cotton to the commanding officer, and it was registered, in compliance with general military orders, by the Treasury agents in his name; and on the 3d of March following taken into the custody of the Treasury agents of the United States and shipped to New York, and there sold by the United States; the net proceeds, amounting to $6897, being paid into the Treasury.

On the 6th of March, 1865, Cutner executed a bill of sale of the cotton specifically, and describing it as "all that certain lot and quantity of cotton, viz., thirty bales of cotton, marked S. C.," to Schiffer & Co., of New York, and received at the time, from one Stewart, the attorney and agent of Schiffer & Co., $2250, the entire consideration named in the bill of sale. The bill of sale recited that the cotton sold was the same which he, Cutner, had described in a petition of March 6th, 1865, to the President of the United States; and it authorized Stewart, the attorney, "to pay over to Schiffer & Co. any and all proceeds which may arise from the same when sold." At the time of this sale Schiffer & Co. had no license to trade with the enemy.

By act of July 13th, 1861,* it was enacted, that "all commercial intercourse" between the inhabitants of any State, or any section, or part thereof, who the President should declare "were in a state of insurrection against the United

* 12 Stat. at Large, 257.