Copen v. Flesher.

the demurrer is filed in this case, comes clearly within this definition. This is apparent from the statement alone of the double aspect of the bill.

It is urged, however, that Fitzgerald has been admitted to come into this case as a defendant, at his own request, and by leave of the court, and can not, therefore, object to the structure of the amended bill, on the ground that the matter charged against him is distinct from that set up against the other defendants, the heirs of Flesher. Whether Fitzgerald was properly admitted as a defendant in this case is not now in question. The court, no doubt, in granting the leave to make him å defendant, acted on the supposition that he had an interest in the title to this land, which rendered it proper he should be permitted to file an answer to the allegations of the bill. In making his answer, he would of course be restricted to matters that were responsive to the bill, and could not introduce anything foreign to it, or which would lead to a mere collateral investigation. If, instead of demurring to the original bill, he had filed his answer, I suppose he would have been limited in his response to the facts alleged, and could not by introducing foreign matter, have presented an issue wholly distinct from that presented in the original bill. It would follow that the mere fact that he had been allowed by the court to stand as a defendant, would not permit the complainant, in his amended bill to introduce matters which, under other circumstances, would have been clearly multifarious in their

nature.

The amended bill, therefore, for the reason indicated, is objectionable, and the demurrer must be sustained. Not only is this conclusion justified by the well-settled rules of chancery practice, but clearly does not violate the rights or equities of the complainant. If he is successful in obtaining a decree in accordance with the object of the original bill, which will result in vesting in him the legal title to the land, the way will be open for proceeding against Fitzgerald to test the validity of his title and possession, and to obtain

United States v. Six Boxes of Arms.

such equitable or legal relief, as the facts may justify. On the other hand, if he fails in establishing his own title, it is clear he can have no claim against Fitzgerald, and there will be no ground of controversy as between these parties. In either event, it is most obvious that the claim first set up by the complainant must be disposed of before there can be any litigation between him and Fitzgerald.

The third ground of demurrer to the amended bill is also tenable. It is, that in the amended bill, the complainant sets up a title to the land, acquired since the commencement of this suit. This has been already referred to. In the original bill the complainant asserts a release or quitclaim from the other heirs of John Copen, which he repudiates in the amended bill, and relies on a conveyance or quitclaim from them, executed in June, 1860, which was long after this suit was brought. The law seems well settled, that in chancery no material fact which has occurred since filing the original bill can be introduced in an amended bill. The party can only avail himself of such fact by filing a supplemental bill. And when such new matter is introduced in an amended bill, it is a cause of demurrer.

For the reasons indicated, I feel bound to sustain the demurrer to the amended bill.

(DISTRICT COURT.)

THE UNITED STATES v. SIX BOXES OF ARMS.

By the law of nations where a war exists between two distinct and independent powers, there must be a suspension of all commercial intercourse between their citizens; but this principle has not been applied to the States which joined the so-called Southern Confederacy. The destination of arms and munitions of war, and the use intended to be made thereof, at the time of seizure, must furnish a test of their status as contraband or otherwise.

United States v. Six Boxes of Arms.

Flamen Ball, District Attorney, for United States.

Lincoln, Smith & Warnock, for claimants.

CHARGE OF THE COURT:

This is an information filed by the district attorney in behalf of the United States, praying for the condemnation and forfeiture of certain property as contraband of war. The information avers, in substance, that six boxes containing guns and other munitions of war, were shipped from the port of Baltimore on May 10, 1861, to Little Rock, in the State of Arkansas; that on the 27th of April last, and ever since, that State, with others, was, and has been, in a state of insurrection, rebellion, and war; and that the ports and places within the same have been declared by the proclamations of the President of the United States under blockade; and that the property specified in the libel was shipped to the State of Arkansas in violation of the blockade and the laws of the United States, and is legally subject to forfeiture as contraband of war. The property has been seized by and is now in the custody of the marshal, under the process of this court.

William J. Syms and Samuel R. Syms, doing business in, and being citizens of the city of New York, under the name of W. J. Syms & Brother, have intervened in the case, and have filed their answer, verified by oath, in which they allege in substance, that on the 15th day of February last, at the city of New York, they entered into a written contract with two individuals, as commissioners of the State of Arkansas, by which they agreed to furnish the articles named in the information at the prices stipulated, together with others not now in controversy of the same character; that pursuant to said agreement, the property was shipped, a part on the 3d and a part on the 9th of April last, from the port of New York, directed to their agent at Little Rock, in Arkansas, by way of Baltimore, and thence westward by the Baltimore and Ohio Railroad; and that the

United States v. Six Boxes of Arms.

articles now in question were taken on the 17th of April, without legal warranty or authority, by a number of citizens at Cincinnati, and a day or two afterward were delivered to the chief of police of said city for safe-keeping, until the circumstances of the shipment could be legally investigated, and were retained by him until seized by the

marshal.

The claimants allege that they are loyal citizens of the United States, and that at the date of said shipment there was no blockade of the ports or places within the State of Arkansas, and that none has yet been formally proclaimed, and they deny that the property, either when shipped or seized, was liable to condemnation as contraband of war. They also aver that on the 15th of February, the date of the contract, and for two months subsequently, the State of Arkansas was reputed and believed to be in favor of the Union, and that a convention of the State had voted against secession. They further allege that it was not until about the 25th of April that there were any marked indications of the purpose of the State to secede, and that the act of secession did not pass until the 7th of May, and that about the 25th of April their agent in Arkansas repaired to Cincinnati, countermanded the order for shipment to that State, and ordered all the property not delivered to be returned to New York; and that the claimants thereupon made a contract with the Union defense committee of that city for the sale to them of such of the property as should be returned to that place.

The evidence offered by the claimants sustains the allegations of their answer, as to the sale and shipment of this property and its seizure and detention at Cincinnati. The testimony of George P. Williams, in behalf of the claimants, is before the court. He was the clerk of Lyons & Brother at the time of the contract made with the Arkansas commissioners, and identifies the property libeled as a part of that furnished by the claimants, and shipped by them from New York on the 3d and 9th of April. He proceeded to

United States v. Six Boxes of Arms.

Arkansas in the early part of that month, to receive and deliver the property as the agent of the claimants. He traveled a good deal through the State, and swears that while the sentiment of the people in the southern part of the State was favorable to secession, in other parts they were for the Union; and that assurances were made to him that the State would not secede. He also states that it was not until after the information was received of the proclamations of the president, of the 15th and 19th of April, that there were any decisive indications of the purpose of seceding; and that on the 25th of April he left Arkansas, and proceeded to Cincinnati for the purpose of stopping all further shipments to Arkansas, and that such an order was given, and no further shipments were made. He also states that the claimants agreed to sell the property to the Union defense committee of New York, when it should be returned to that place. The testimony of the witnesses to the state of things in Arkansas, prior to the 25th of April, is sustained by other witnesses offered by the claimants.

On these facts, it is insisted by the district attorney that the articles seized are liable to forfeiture: first, as having been shipped in violation of the President's proclamation of blockade; and second, that the State of Arkansas was at war with the United States, and the property was, therefore, when seized, contraband of war.

The first of these positions is clearly not sustained. The State of Arkansas was not embraced in the proclamations of the President of the 19th and 27th of April, declaring the ports of the seceded States under blockade. The formal act of secession by the State of Arkansas, as before stated, did not take place until the 7th of May. Until after that date the President could not properly declare the blockade of her ports; and trade with her was not, therefore, interdicted on that ground.

But the question still remains whether this property was subject to condemnation as contraband of war on general principles of national law. The affirmative of this prin