#### DILLON'S CASE. Robert Dillon, appellant, *v.*The United States, appellees.

(5 Court of Claims R., p. 586. Not reported in Wallace.)

*On the claimant’s Appeal.*

*A merchant in Neto*Pori: *owns stock in a corporation in Savannah. After the President’s*Proclamation 15th. April, 1861, *hut before the passage of the*Non-intercourse Act, *he executes a conveyance of the stock to a friend, in Savannah for the purpose of saving it from Confederate seizure. The friend accepts the conveyance, buys cotton for the benefit of the merchant, and applies the dividends of the stock in payment for the cotton. On the captwe of Savannah he reports the cotton as the property of the merchant, who ratifies the purchase and*, *brings his suit against the Government to recover the proceeds in the Treasury. The Court of Claims decides that the deed purporting to convey the stock, being made in time of war between enemies, toas void, and that the transactions under it and the intended transfer of the cotton to the claimant gave him no title. Judgment for the defendants. The claimant appeals.*

The decision of the Court of Claims affirmed without an opinion being rendered by the Supreme Court.

*63
      *The Reporters’*statement of the case:

The following are the material facts found by the court below :

That the petitioner was a merchant of New York, and owned one hundred and ninety-five shares of the corporate stock of the Central Cotton-Press, a corporation in the city of Savannah.

That, by deed executed on the 22d day of April, and acknowledged the 20th day of May, 1861, in the city of New York, the petitioner purported to convey to Augustus Cohen, of Savannah, the said one hundred and ninety-five shares for the sum of $23,500,

That the deed was sent from New York, by Mr. Dillon, to Mr. Cohen, at Savannah, and by him received there between the 20th day of May and the 31st day of May, 1861; and that it was recorded in the records of the superior court for Chatham County, Georgia, on the 16th of March, 1864.

That no part of the consideration specified in the deed was paid *$*and that the deed was intended only to place the property in the name of Mr. Cohen to protect it from seizure by the confederate government; and Mr. Cohen held the property for the benefit and account of the petitioner.

After commercial intercourse was prohibited between the States loyal to the Union and those in insurrection, Mr. Cohen advised the petitioner that he had possession of his property, and the petitioner replied that he had received Mr. Cohen’s letter. This correspondence was by the way of Liverpool, and through a friend of Mr. Cohen’s there.

In October, 1863, Mr. Cohen purchased for himself and with his own funds, one hundred and fifty-three bales of cotton; and, at some time subsequent to this purchase, he received, as dividends from the shares of the Cotton-Press, standing in his name and belonging to the petitioner, $37,303.26; and he afterwards, to wit, on the Igth of March, 1864, invested this money in the one hundred and fifty-three bales of cotton he had purchased for himself, and thus transferred the cotton to Mr. Dillon at its cost and *expenses;*and he thereupon entered the cotton on his books to the credit of the Cotton-Press to protect it from sequestration by the confederate government: The cotton remained in the Central Cotton-Press, where it had been previously stored by Mr. Cohen. At the time of this transfer of the cotton Mr. Cohen was abundantly provided with funds of his own.

*64At the time of tbe purchase of the cotton, in October, 18C3, by Mr. Cohen, he had in his hands no funds of Mr. Dillon’s j and the dividends, as they were afterward received from the 'Central Cotton-Press by Mr. Cohen, were entered in his books in the name and to the credit of the Central Cotton-Press, to separate them from Mr. Cohen’s property and to protect them from seizure by the confederate government.

An invoice of cotton, dated Savannah, January 18,1864, was made out by Mr. Cohen, and sent by him to Mr. Dillon; but when it was sent did not appear.

In January, 1865, the cotton was returned by Mr. Cohen to Colonel Bansorn as the property of Mr. Dillon, and it was taken ' possession of by the United States and sold by them at auction, and its net proceeds, amounting to the sum of $20,532.60, paid into the public treasury.

The one hundred and ninety-five shares in the Central Cotton-Press, conveyed by Mr. Dillon to Mr. Cohen, were retrans-ferred by him to Mr. Dillon, by deed executed and acknowledged by Mr. Cohen and recorded in Savannah, February 13, 1865.

*Messrs. Carlisle and McPherson*for the claimant, appellant:

1. The judgment of the Court of Claims is founded entirely upon the invalidity of the deed from Dillon to Cohen. Without conceding that that deed is invalid under the law of nations, in the circumstances disclosed by the record it is submitted that the claimant’s right of recovery in no degree de- ■ pended on that deed. It plainly appears, upon the whole case, that the purpose of that deed was simply to cover and protect the property of the claimant, a loyal citizen residing in New York, from seizure or confiscation by the enemy; nor did Cohen ever claim any beneficial right or interest in the property under that deed. There is no principle of the law of nations which forbids such a transaction.

2. The acts of Cohen for the protection of the claimant’s property the court find to have been *“*done for the benefit of Mr. Dillon as an old and intimate friend.” To enable him “ to protect it (the shares) from seizure,” the deed in question was sent to Mr. Cohen between the 20th and 31st days of May, 1861, at which time, as this court will take judicial notice, the regular *65mails between the two sections of country had not been interrupted. In this respect the case is not within the principle of *Grossmayer’s Case,*where the intercourse was secret and in violation of the *Act July*13.1861. In that case the court said, “ we are not disposed to deny the doctrine that a resident in the territory of one of the belligerents may have in time of war an agent residing in the territory of the other, to whom his debtor conld pay his debt in money or deliver him property in discharge of it.” The court, however, added, “ but in such a case the agency must have beeh created before the war began.” 9 Wall., 72, 75.

In the present case there is nothing to show that the agency was created *flagrante bello.*The deed did not purport to create such agency, and the court below find that Cohen acted for Dillon “ as an old and intimate friend.” This naturally carried back the agency to a period before the war, and in no aspect of such agency could it injuriously affect the rights of the United States. As to the- enemy, such a strategem was perfectly lawful. Its effect was to withdraw from the enemy and ultimately to place in the Treasury of the United States the proceeds of the cotton, in trust for the loyal owner, as has been repeatedly decided by this court.

Under the deed which the Court of Claims have found to be void, and the invalidity of which is the sole foundation of their judgment, Dillon never acquired or claimed any right whatever; on the contrary, the deed simply purported to divest him of the ownership which he had. In no respect, therefore, does his title depend on that deed. It was not by virtue of that deed that Cohen purchased the cotton, nor did it authorize him to do any of the acts upon which Dillon’s right of recovery now depends.

*Mr. Assistant Attorney-General Hill*for the United States, appellees:

The only question in this case is, was the cotton, when seized by the United States officers, the property of the claimant Dillon *%*If it was not, his petition must be dismissed.

At the time this transfer of the shares in the Cotton-Press was made from the claimant to Cohen, and the deed executed to him, war existed between the United States and the States in rebellion. — Prize Cases,. 2 Black, 635.

*66Although some of the dicta and statements in the cases upon this subject may go further than the settled doctrines of the law do, and may seem to include intercourse which in itself may be innocent and lawful as well as commercial intercourse, yet there can be no doubt that the prohibition of intercourse between enemies extends to all cases of trading and dealing in personal *property.*— United *States*v. Grossmayer, (9 Wallace, 72;) *Kershaw*v. Kelsey, (100 Mass., 561,) and the cases there reviewed.

What effect the transfer of the shares in the capital stock of the Cotton-Press Company may have had as between parties, it is unnecessary now to consider. The question is whether, assuming that Cohen acted as. agent of Dillon, it was lawful for a man professing to be a loyal subject of the United States to make purchases, through an agent residing in the 'enemy’s country, of any article of merchandise, and particularly of cotton, which was one of the chief reliances of the rebel government during the war; and therefore was held by this court to be liable to capture and confiscation, although private property ?— *Alexander’s Cotton,*(2 Wallace, 404.)

There was no such relation between Dillon and Cohen at the time that the purchase of this cotton was made as can entitle Dillon in any way to take advantage of it in a court of justice. It is not necessary to cite authorities to show that an agency to do or perform an illegal act or to carry on an illegal business is, in itself, illegal and void.

Nor can any subsequent ratification by the claimant, Dillon, render that legal which was illegal at the time it was done. Cohen professes to have bought this cotton of himself. At the time he attempted to transfer the interest in it to Dillon the property was not only liable to seizure as being, in a sense, contraband of war, but having himself at that time given aid and comfort to the enemy, Cohen could not then have brought a suit to recover its value.

The judgment of the Court of Claims was affirmed by the Supreme Court, no opinion being delivered.