#### VILLALONGA’S CASE. John L. Villalonga *v.*The United States.

*On the Proofs.*

*A cotton-factor during the rebellion residing in Savannah receives cotton from various persons and malees advances thereon in the money of the Confederate States. All of this cotton is seised, by the army, and the proceeds are in the Treasury. The factor brings his suit to recover the proceeds, claiming to be*the. *owner within the meaning of the act. JECe fails to prove the intrinsic or mar-leetable value of the Confederate notes at the time of making the advanees.*

*453A factor in possession, with a lien upon the property for advances made, is entitled to hold the property, and may sell it to repay advances or may maintain an action of trover or replevin to the exclusion of any action by his principal, and he will become the trustee of the original owner to the extent of his residuary interest. Therefore, under the decision of the Supreme Court in *Carroll’s Case,*(7 C. Cls. R., p. 255,) holding that an administrator in possession is the owner of captured property within the meaning of the act, it is now held that a factor in possession with a lien upon the property for advances made, is the owner, within the meaning of the act, and that he may maintain an action for the proceeds in the Treasury. The factor on recovering will be liable to his principal for the surplus, after paying his own advances, as if this suit were an action of trover.

*Mr. Denver*for the claimant.

*Mr. Alexander Johnston*for the defendants.

*The Reporters'*statement of tbe case:

The court found the following facts:

I. The claimant was a resident of Savannah during the rebellion, and owned, in bis own rigbt, one hundred and ninety-six bales of cotton, which were captured by the army in December, 1864. They were sold by the agents of the Government, and the proceeds paid into the Treasury of the United States, being $175.33 per bale, amounting in the aggregate to $34,364.68.

II. Before the capture of Savannah, the claimant was, and for a long time had been, engaged in business as a cotton-factor. At various times during the years 1863 and 1864 he received cotton as a factor from various persons, and made advances thereon in the money of the Confederate States. At tbe time of tbe capture of Savannah be thus held seventy bales of sea-island, and two hundred and twenty-seven bales of upland cotton, on which be had made advances to the amount of $51,-153.17 in the notes of the Confederate States. All of this cotton was seized by the Army of the United States, and subsequently sold, and the proceeds thereof paid into the Treasury *¡*which proceeds, being $231.79 per bale for the sea-island, and $175.33 per bale for the upland cotton, amount in the aggregate to $56,025.21. The claimant has failed to prove the intrinsic or marketable value of tbe Confederate notes at tbe time of making tbe advances.

*454Nott, J.,

delivered the opinion of the court:

The Supreme Court decided in *Carroll’s Case*(7 C. Cls. R., p. 255) chat a suit may be maintained under the *Abandoned or captured property Act*by one who was not the owner in his own right, but who, at the time of seizure, was possessed of the property under a title upon which he could maintain an action of trover or trespass, and who, at the time of bringing suit, was entitled to receive the proceeds as the trustee or representative of parties not before the court. We perceive no difference in principle between the case of an administrator and of a factor in possession with a lien upon the property for advances made. The factor is entitled to hold the property; he may sellit to repay his advances, or maintain an action of trover or replevin, to the exclusion of any action by his principal]'; andmn recovering its value he becomes a trustee of the original owner to the extent of his residuary interest. It may be doubted whether the original owner not in possession, not entitled to possession, and not primarily entitled to the proceeds, could maintain a suit here under the statute; and it is tolerably certain that he and the factor could not have brought several and conflicting suits for their respective interests, and compelled this court to settle disputed accounts between them. Therefore it seems tolerably clear that this suitis properly brought by thefactor, who, on recovering, will be liable to his principal for the surplus, after repaying his own advances, as if this suit were an action of trover brought in a court of the common law.

The judgment of the court is, that the claimant recover the proceeds in the Treasury of four hundred and twenty-three bales of upland cotton captured at Savannah, being $175.33 a bale, and of seventy bales of sea-island cotton, being $231.79 a bale, amounting in the aggregate to $90,389.89.