their agents so that they might look after their property, it would probably be free from difficulty. But the charge holds that even though there may have been no negligence in these respects, the company would still be liable if the liability of a common carrier attached to it at the time the whiskey was received for shipment.

This therefore is the question to be determined. We do not doubt the correctness of the charge as to what would be sufficient to fix upon the company the liability of a common carrier, and that the liability did attach in this case. If the whiskey was destroyed by the Confederate troops, an overpowering force, without negligence or collusion upon the part of the carrier, there can be but one reason why this should not be a valid defence, that is, that the carrier is an insurer against such losses.

The carrier is liable for losses by fire, theft, robbery or unavoidable accident, even though resulting from an overpowering force. The rule is founded upon grounds of public policy, in the interest of commerce and trade.

The argument for the plaintiff is that the carrier is liable for all losses except those resulting from the act of God, the public enemy, or the shipper himself, and if having been held that the Confederate army was not in this sense the public enemy it must follow that the destruction of the property by the Confederates would be no defence.

But it has been held that there are other exceptions to the carrier's liability, as, for instance, where the property is taken from him by judicial process rightfully issued. See the case of Brein G. Mead v. Hudson River R. R. Co., 36 N. Y. 403, where it is held that it is a good defence for the carrier to show that the goods were seized by judicial process at the suit of the rightful owner, provided notice be promptly given to the consignor. Also in the case of Shiles v. Davis & Banton, 1 Black. 101, it was held that where goods are attached in the hands of a common carrier by garnishment, in a suit against a third person they are in the custody of the law and the carrier is not justified in surrendering them to the consignee until a judicial determination of the question and until the question is determined is not bound to deliver to the shipper on demand. In this latter case nothing special is said in the opinion about notice, but it appears that the owners demanded the goods of the carrier a few days after the levy of the attachment, and delivery was refused upon the ground that the carrier had been summoned as garnishee in the attachment suit, thus showing actual notice.

The case of Wells v. Maine Steamship Co., decided by the U. S. Circuit Court for Maine, Justice Clifford sitting with the district judge (4 Clifford, 228), is also on the same subject. In that case whiskey was shipped from New York by the steamship company consigned to the plaintiff at Portsmouth, New Hampshire, by way of Portland, Maine, at which latter point it was the duty of the car

rier to deliver the freight to the Eastern R. R., the next in the line. At Portland the whiskey was seized by officers of the State of Maine, claiming that it was forfeited for an alleged violation of the laws of that State. A proceeding was instituted in the nature of a proceeding in error to have the forfeiture declared. It was so declared and the whiskey was destroyed; the owner had due notice" of the seizure. It was held (Justice Clifford delivering the opinion) that the carrier was discharged from all obligations to deliver the whiskey unless it could be shown that the court of Maine declaring the forfeiture had no jurisdiction, or that the law under which the seizure was made was unconstitutional and void. Neither of which positions were in the opinion of the court maintained.

The seizure having been made under a constitutional law and by a process from a court having jurisdiction, and notice given to the owner, the carrier was discharged, and was not bound to show that the decision of the court declaring the whiskey forfeited was correct either in law or fact.

The opinion refers to the cases of Brein v. Hudson River R. R. and Stiles v. Davis above cited, besides other authorities.

The case of Edwards v. White Line Transit Co., 104 Mass. 159, holds that it is no defence to an action for breach of the contract to carry, that the goods were taken out of the hands of the carrier under an attachment against a person who is not the true owner.

These authorities, while not directly in point, tend to illustrate the principle involved.

It is however not in all cases sufficient to show that the goods are taken from the carrier by an overpowering force, for if taken by robbery or insurgents it is no defence, even though the force be overpowering.

The Confederate government having been recognized as a government de facto having actual possession of the country, its acts in prosecuting the war in reference to the citizens and their property must be held to have had the same effect for the time being as the acts of a rightful government. The seizure and appropriation of private property in accordance with the usages and customs of war must be held to have been within its powers. The citizens therefore would have no redress against the soldiers and others who, in obedience to military orders, may have seized or destroyed their property. They could only have such redress as the government might choose to make. The acts of the Confederate military, therefore, in regard to the citizens and property within the territory of the Confederate States, would stand precisely as the acts of the United States' forces toward the citizens and property of the loyal States. The property might have been seized and destroyed by the military if in the hands of the owner; in that event he would have had no remedy against the soldiers individually.

That such property might be thus destroyed, see Harrison v. Wisdom, 7 Heisk. 99.

Does it alter the case that at the time of the seizure the property of the plaintiff is in the hands of a carrier? The case of the I. C. R. R. Co. v. Ashmead, 43 Ills. 487, seems to recognize the doctrine that the carrier will be excused if he is prevented from complying with his undertaking by the acts of the United States military forces. And in the case of the Railroad v. Hurst, 11 Heisk. 625, it was held not only that citizens but common carriers were justified in submitting to the orders of the military officers of the Confederate army, and for doing so incurred no liability to third parties.

This is upon the ground not only that it is an overpowering force, but a force exercised in obedience to the authority of the government having for the time being dominion and control of the country, which it is the duty of citizens and subjects to obey in the same sense that it is their duty to submit to legal process and the laws of the land. This brings us therefore to the conclusion that the charge of the trial judge was erroneous, if the questions we have been considering were fairly presented. It will be noticed that in cases above referred to, where the goods were seized under civil process, it was regarded as essential that the owner or consignor should be notified of the proceeding. This was for the purpose of giving him an opportunity to appear and litigate his rights.

Notice in a case like this, where the goods were seized and at the same time destroyed by the military, could not be essential for the same reason. It might, however, be important to show that the owner had either notice or actual knowledge of the destruction of the goods, for in that event he might obtain compensation from the government. No notice appears to have been given in this case, nor does it appear when the plaintiff acquired knowledge of the facts; the question was not made in the court below. It is probable, however, from the circumstances that the consignor had knowledge of the destruction of the whiskey soon after it occurred. We do not, however, hold that notice or knowledge was essential.

Upon a reconsideration, therefore, of our former opinion we have arrived at a different conclusion, and the affirmance will be set aside and the judgment reversed and a new trial granted.

MICHAEL LEARY

v.

THE CLEVELAND, C., C. AND I. R. R. Co.

(Advance Case, Indiana. January 2, 1882.)

The plaintiff sought shelter from the rain underneath a building belonging to the railroad company, which had formerly been used as a freight house, but not being in use had been permitted to become dilapidated and insecure. While at the freight house he noticed that a portion of the roof was lifted by wind and in danger of falling. While running to escape the falling fragment he was struck by it and injured. Held, that the plaintiff was a trespasser and could not recover damages for the injury.

APPEAL from the Madison Circuit Court.

Kettinger, Harrison & Pierce, attorneys for appellant.
A. C. Harris, attorney for appellee.

MORRIS, COM.-The appellant sued the appellee for damages alleged to have been sustained by him through the negligent failure of the appellee to repair a building standing on its ground and formerly used by it as a freight house, situate within the limits of the city of Anderson, Madison County, Indiana.

The appellee answered the complaint by a general denial. The cause was submitted to a jury for trial. The appellant having introduced his evidence to the jury, the appellee demurred to it and the appellant joined in demurrer. The Court sustained the demurrer and the appellant excepted.

The ruling of the Court upon the demurrer is assigned as

error.

The facts which the evidence proved or tended to prove are substantially as follows:

The appellee, called in the evidence the "Bee Line," on the 3d of April, 1873, owned and operated a railroad, passing through the town of Anderson, Madison County, Indiana. In the south-east part of said town it crosses the "Pan Handle" Railroad, the course of the appellee's road being nearly east and west, and that of the "Pan Handle" from north-west to south-east. On the west side of the Pan Handle tracks, and north of the Bee Line tracks, there was a passenger depot. A freight house had been built several years ago, about twenty feet west of the passenger depot, with a platform on the south side and west end of the same. The surface of the earth on which the freight depot stood inclined to the north the house and platform rested on stone pillars. Next to the track, the platform and floor were some two feet above the level of the track, and on the further side, some seven or eight

feet above the surface of the ground. The space between the platform and floor and the earth was open. A year or two before the alleged accident the appellee moved its general freight business to a depot near the city, and the freight house in question was no longer used as the general freight house of the appellee, though still used for some purpose, such as storing the appellee's wood and lumber. A highway or avenue led from the crossing northwardly to the town dividing the angle formed by the railroads. The appellee owned half an acre of ground between its track and this highway or avenue, upon which the depot stood.

Patrick Leary, the father of the appellant, lived near the Bee Line tracks, and some distance west of the crossing a road leads west towards his home. A heading factory stood some distance south-east of the crossing. The appellant, then twenty years of age, was on the 3d day of April, 1878 employed in this factory as a joiner, and had been employed in it as a common laborer for some time before. On the 3d of April, 1878, it rained so that the factory shut down by ten or eleven o'clock in the forenoon. The appellant, in company with several other boys, started for home, and when they reached the crossing they walked along the Bee Line tracks until they reached the old freight house. The appellant had been in the habit of passing this freight house almost daily for some time. He noticed in July, 1877, that a part of the roof of the building was off, but had never given it further notice. As the appellant and his companions came up the Bee Line track they were throwing mud balls at each other. It was raining and they ran under the platform of the freight house, where they continued their sport of throwing mud balls and pitching pennies. The appellant, to avoid the mud balls thrown at him by his companions, run behind one of the stone pillars supporting the platform on the west end of the freight house. They had been playing some ten or fifteen minutes, when a severe and sudden blast of wind struck the freight house while the appellant was behind the pillar. It tore off a piece of the roof of the building some ten feet square. The appellant being frightened by the noise, ran out in the open space, and looking up, saw the piece of the roof, blown off, in the air. He ran towards the avenue, but before, or as he reached the edge of it, this fragment of the roof fell upon and crushed him to the earth. The appellant was bruised and internally injured by the accident, and had not at the time of the trial entirely recovered from the injury.

Upon the facts thus stated, can the appellant maintain this

action?

There is no testimony tending to show that the appellant was at the freight house by the invitation of the appellee, nor that he was there for the purpose of transacting any business with the appellee. The appellant intruded upon the premises of the ap