concurring:
Judge'Milligan and myself are of the opinion that the proviso of the first section mentions the kinds of property it specifies as examples merely, and not as an enumeration of the articles excluded, and that the purpose and effect of the proviso are to exclude'all property used or intended to be used with the assent of its owner for carrying on war against the United States. No subsequent statute refers in any way to property used or intended to be used for carrying on war against the United Statesand on this construction of the law only we find for the defendant in this case; for the plaintiff bought this steamer while she was under charter in the rebel service, and with the knowledge that he could not recover from that service. This, (as his purchase was optional,) was his assent that his property might be used in waging war against the United States. We think, therefore, that by the proviso this case is removed from our jurisdiction, and that by force of the Act 3cl March, 1863, the plaintiff is disabled from bringing any suit in this court by having aided, abetted, and given encouragement to rebellion.
Nott, J., agreed with the opinion read by the Chief Justice, except as to the effect ascribed to the Act 4Ah July, 1864.