#### William Pollard *v.*The United States.

*On the Proofs.*

*A colored drayman m Savannah huye cotton between November and the 12th December,*1864. *Both of the vendors are known to the vendee*as *having been in the Confederate service. At the time of sale, General Sherman is marching on Savannah; but it is expected that he will debouch on Beaufort. The sale is made at the current price of cotton in Savannah, and there is no intent by the parties to defrdud the JJniled Slates of their right of capture by a change of tifie.*

A sale of cotton in Savannah ten days before the capture of the city, while it is supposed General Sherman will debouch on Beaufort, made at the current price, and with no intent by the parties to defraud the United States of their right of capture by a change of title, is valid under the “ *Confiscation”*and *“Abandoned or captured property acts,”*(12 Stat. L., p. 589; *Id.,*p. 820,) notwithstanding- the vendee knows that the vendors are disloyal, and have been in the Confederate service.

*Messrs. Biddle mid LesM*for the claimant:

The claimant is a colored man, and the evidence of his loyalty to the United States is of a *positive*character, by acts and deeds for the Union cause and Union men ; and in doing which he risked his life.

He was harboring Union prisoners, and aided their escape; he also assisted Union men escaping from serving in the rebel army, and helped them to get through the lines.

*329The claimant purchased from Erwin *&*Hardee, cotton commission merchants at Savannah, in the fall of the year 1864, sixty bales of upland cotton, which cotton he caused to be hauled to and stored on his jiremises on Bryant street, where it reznained until the occupation of the city by General Sherznan.

It is further showzi by the testimony that sixty bales of cotton were removed frozn the claimant’s preznises on behalf of the United States.

The official return from the War Department to this court shows the fact.

The Secretary of the Treasury reports to this court in all the Savannah cotton eases, that the net average proceeds of one bale of upland cotton, as ziearly as can be ascertained, were $176 56.

It is.respectfully submitted that the evidence and proof before the court fully establishes—

1. The taking- and' selling by the United States of the property claimed.

2. That the claimant was the lawful owner of the property and is entitled to the proceeds.

3. That the claimant always was loyal to the United States and did not aid, comfort, or assist the rebels, or sympathize with the rebellion during its duration.

*Mr. B. 8. Sale,*special counsel of the Treasury, for the defendants.

Loring, J.,

delivered the opinion' of the court:

The claimant was a colored drayman in the city of Savannah, in the State of Georgia, possessed of property real and personal, azid of good credit azid reputation in business. Between ' some time in November and December 12, 1864, he purchased sixty bales of upland cotton of Messrs. Erwin & Hardee, commission merchants. The cotton was delivered to the claimant on December 12, 1864, and it was paid for in three instalments and fully paid for by December 12,1864, or a day or two. after.

After the capture of Savannah, on the 21st of December, 1864, upon an order made by the military authorities of the United States for the surrender of cotton, the claimant reported his cotton to them, and it was seized and afterwards sold by the United States, and its net proceeds, amounting to the stun of $10,020, paid into the treasury.

*330Messrs. Erwin & Hardee, tbe vendors, resided in Savannah, and both were in the service of the Confederate government in the rebellion. Mr. Erwin was a captain in the army, and left it in 1862 on account of his bad health. Mr. Hardee was deputy collector of the port of Savannah when the city was captured.

At the time of the sale, General Sherman’s army was approaching the South Atlantic coast, and it was expected that he would debouch about Beaufort, where preparations were making against him, while property was being brought into Savannah from other places for safety.

Previous to and at the time of the sale, Messrs. Erwin *&*Hardee were seeking to collect their debts by getting cotton from parties owing them, and selling it for cash. And as General Sherman approached, they and other commission merchants having cotton on hand and debts outstanding, pressed the sales of their cotton for confederate money wherewith to pay their debts, for which it was a legal tender. And at this time property rapidly changed hands. The claimant was loyal; aided Hnion prisoners and persons drafted into the rebel service to escape, and never gave aid or comfort to the rebellion.

It was claimed that the sale of the cotton was colorable, that is, as the allegation is understood, a mere pretense, leaving the ownership of the cotton in the vendors, and for their sakes covering it with the name of the claimant. But we think this is not’ proved, and that on the other hand the evidence is, that at the time of the sale the parties to it did not apprehend the capture of Savannah. Mr. Erwin, the vendor, on cross-examination was asked: “ Had you heard, at the time of the sale of this cotton to this claimant, that the United States military forces, under command of General Sherman, were advancing towards Savannah? *Ans.*I had at the time I made that sale the general impression in Savannah, which was that he would cut across from about Marion and strike Beaufort; they were preparing at Beaufort, little thinking he would come here. Property was being run into Savannah from all quarters for safety.”

Here Mr. Erwin testifies directly as to his belief about the capture of Savannah, and the fact he testifies to, that “property was being run into Savannah from all quarters for safety,” shows the belief of the community and its neighborhood.

But apart from this, we think it is answer enough to say that the sale between the claimant and Erwin & Hardee was *dona**331*fide,*and made with, tbe intent and effect of changing the ownership of the cotton from them to him. Mr. Erwin’s testimony is distinct, that the cotton was delivered to the claimant, and the full price of it paid by him to them. And the confirmatory fact is shown that the obtaining Confederate money for cotton was at that time the general purpose of Erwin & Hardee, and that the latter of these partners carried eighty thousand dollars so obtained out of the city at its capture, to pay their creditors in the country. And on the other hand it is equally clear that it was desirable for the claimant to exchange his Confederate money for cotton as a safer investment.

And if the sale was *dona fide*between the parties to it, and each acted for a plain advantage to himself, then that motive being shown, there is no reason or room for presuming that their motive was to defraud the United States; especially as the attempt would have been futile, for the United States, by seizing the cotton and proceeding against it under the act of 17th July, 1862, to judgment, would have avoided the sale whether colorable or *bona fide.*And the parties to the sale knew this, if they knew of the confiscation act, and if they did not know of that, they had no motive for a colorable sale.

And if it had been expected by the parties to this sale, *bona fide*between themselves, that the cotton would have been seized under the act of July 17,1862, and claimed by the petitioner under the act of March 12, 1863, we think it would have been immaterial here, because the vendors and vendee were under no obligation to act for the United States, or to sacrifice to them their own business purposes, or to take care of the United States in any way. For the United States were able to take care of themselves, and had done so by the statute of July 17, 1862, which, as to them, avoided all sales of captured and condemned cotton made by rebel owners after September, 1862. And the United States, at the time of the sale of this cotton, had no lien upon it and no title to it. They might acquire a title by seizing the cotton and prosecuting it to judgment. And this was the right they had measured out for themselves; and it was the only liability to which the laws subjected the parties to the sale, and subject to this liability, of having their sales avoided in favor of the United States, they were perfectly free to trade with each other and buy and sell as their interests dictated, and whether their dealing with each other was just *332before or after the capture of Savannah, was, we think, equally immaterial.

And so we think it is immaterial, the sale being *bona fide*between the parties, that the vendors were rebels; for the statute of July 17, 1862, does not forbid sales by rebels, or any business transactions between inhabitants of a rebel community. It only avoids sales, as against the United States, of cotton which has been seized and confiscated to the United States by judgment of court, and in this it follows the old law of treason, which carried the title of the government back, by relation to the act of treason, and avoided subsequent conveyances. And this is the policy of the statute of 17th July, 1862. But it is not the policy of the United States as to captured or abandoned property, like this cotton, for against that they have not proceeded to judgment under the statute of 17th July, 1862, nor sought to avoid the sales made by rebel vendors, nor to defeat the title of loyal vendees, nor to appropriate the property to thfemselves. Because it was known that of the mass of captured and abandoned property seized there was much of it which, at the time of its seizure, belonged to loyal owners, “the faithful few among the faithless found,” whose titles would be avoided by proceedings under the statute. And to prevent this the act of 12th March, 1863, was enacted, which in its purpose, character and policy, is entirely different from the act of 1862; for the statute of 1862 is a jtenal statute, and its purpose is to punish rebels by the confiscation of their property. The statute of 12th March, 1863, is (in the best use of the word) a remedial statute, and its purpose is to do justice to loyal citizens by the restoration of their property. And to effect this purpose' of the statute, and at the same time confine its bounty to the loyal citizens for whom it was made, all claimants are required to prove their own loyalty; that by the statute is material, and the loyalty of no other person is. The statute does not require the claimant to prove the loyalty of his vendor nor make that material. And this court cannot impose on the claimant’s recovery a condition which the statute does not.

Nor does the statute of June 25, 1868, alter the statute of March 12,1863. The statute of 1868 enacts that where in any suit the loyalty of a person shall be “ material,” (and that necessarily means is made material by statute,) that in such case, it shall be proved affirmatively by the party asserting it. That, *333in this court, applies only to claimants, and as to them, had been adjudged here before it was enacted.

Where the sale is *bona fide*between the parties to it, it cannot be a fraud against any of the statutes cited. None is possible by the vendee against the statute of July 17, 1862, for that founds the title of the United States on the treason of the vendor, which is antecedent to the sale, and that is defeated by the statute irrespective of the vendee, and equally whether he is loyal or disloyal, honest or dishonest. And if the sale is *bona fide*between the parties to it, and vests the ownership of the property in the vendee, it cannot be a fraud against the statute of March 12, 1863, for that only'requires the claimant to prove a title good against third persons, that is, others than the United States, and a *bona fide*sale, vesting the ownership in the vendee, does exactly that; and, as has been said before, this court cannot require of the claimant any thing more than the statute does. The United States do not aslc nor authorize this court to ascertain whether the title of the claimant is good against them; for it cannot be, but only that it is such as will protect them against other claimants. And as the statute does not require *bona fide*vendees to sacrifice their opportunities for profit to the United States, nor to forbear advantageous purchases on the approach of their armies, and does not impute it to them as a fraud or a fault that they sought their own advantage in markets deranged by war, this court cannot do so.

It may be possible that a citizen shown to be loyal, and neither wishing cotton for any purposes of his own or to cover it for a vendor, may yet buy cotton merely to prevent its coming into the possession of the United States, but such a remote possibility has not as yet been shown in evidence here, and it is not a ground for the construction of a statute, “ *ad ea qiim frequentius aecedunt, jura adaptantur.”*

And on the whole case we decide as conclusions of law—

That where it is proved that a sale was *bona fide*between the parties to it, and made with the intent and effect of transferring the ownership for the price, it is immaterial that the vendor was a rebel, or that the capture of the property and its seizure by the United States was imminent, and known to be so by the parties of the sale.

That where the sale was colorable, and made to cover the property of the nominal vendor by the apparent ownership of *334tbe nominal vendee, it is fraudulent and void; and tbe vendee cannot recover tbe net proceeds of tbe property in this court, for want of title in himself.

On tbe facts stated, tbe court find that tbe claimant is entitled to judgment for the net proceeds of sixty bales of upland cotton, amounting to tbe sum of $10,020.

Casey, Ch. J.,

concurring.

I agree that tbe claimant is entitled to judgment. I dissent from tbe construction given to tbe statutes.

Nott, J.,

dissenting:

If tbe facts in this case were like those in *Grossmayer’s Case, {ante,*p. 1,) I should not feel at liberty to dissent again upon tbe point there determined, for a point of law properly decided by a court is tbe law of tbe land until properly overruled, and as such is obligatory not only upon citizens and suitors, but equally upon tbe judges and officers of tbe court.

Tbe difference between this case and *Grossmayer’s*is that there tbe claimant gave no evidence'whatever as to tbe loyal or disloyal character of those from whom be bought bis cotton, and, in fact, did not himself know; while here it appears positively that tbe vendors from whom tbe claimant bought, and with whom be dealt, were disloyal persons, and had been, the one an officer in tbe rebel military service, and tbe other tbe Confederate cotton agent in Savannah.

With regard to tbe construction given to tbe *“ Confiscation”*and *"Abandoned or captured property acts,”*I fully agree that a claimant in this court seeking tbe proceeds of captured property, lias but to prove three things: ownership, a right to the proceeds, and his own loyalty; bub as to what constitutes *"*ownership ” under those statutes, and as to tbe construction given to those statutes on tbe requisites of “ ownership,” I dissent upon the following grounds:

1st. The *“ Abandoned or captured, property aet”*removed from tbe jurisdiction of tbe district courts all cases relating to abandoned or captured property; .so that this court possesses, respecting them, an exclusive jurisdiction, and it would be absolutely impossible for tbe government to libel tbe property *335and proceed to judgment under tlie “ *Confiscation act.”*Allowing a suit here for tbe proceeds of tbe propeity, and requiring a suit there for tbe forfeiture of tbe property, would be a circuity of action and double vexation never intended by tbe later act.

2d. Tbe *“ Abandoned or captured property act”*not only substitutes another remedy for that given by tbe “ *Confiscation act,”*but entirely reverses tbe positions and rights of tbe parties. Under tbe earlier act tbe proceedings were instituted by tbe government, and were against tbe property; under tbe later tbe government acquires possession of tlie property, and tbe suit must be maintained by tbe owner against tbe government. Under tbe former act tbe property remained till condemnation in tbe custody of tbe court; under the latter tbe property vested in tbe government, and tbe owner has but an equity in the proceeds. Tbe legal title followed possession, and passed without condemnation by tbe capture. Tbe burden of proving a superior equity in, and a better right to, tbe .proceeds, is expressly thrown upon tlie claimant.

3d. Tbe “ *Abandoned or captured property act”*maybe a remedial statute, and may be liberally construed; and yet is not to be held to work tbe repeal of other statutes by implication, nor to enable guilty parties to escape tbe penalties which tbe existing law imposed. Certainly it is not a remedial statute enacted after tbe events were over and tbe condition of parties fixed, lienee our construction must relate back to tbe time when it was enacted, which was before tbe rebellion was half over, and but a few months after tbe “ *Confiscation act”*bad been enacted. Hence, it was a prospective statute, and not merely remedial, and its framers could never have intended that it should thenceforth allow parties whose property was liable to confiscation to evade the penalty by a sale to their loyal neighbors. Such a construction must also involve this anomaly as a part of tbe legislative intent: that if A, a loyal person, should buy property of B, a rebel, and it should not be captured, then at tbe end of tbe rebellion it should be liable to confiscation, and tbe sale and transfer be deemed void; but if it shoiddbe captured, then A should be deemed tohave a good title, and tbe sale and transfer from B be held valid. Such could not have been tbe legislative intent. If the act ivas intended to be remedial, it was intended to be remedial for property already *336owned, and not for property thereafter to be bought from public enemies, and in violation of the unrepealed “ *Confiscation actP*

4th. The “ *Abandoned or captured, property*act” does not require or imply a construction at variance with the previous statute. It does not say that the claimant shall prove possession, but that he shall prove “ *ownership ”*Possession is not “ *ownershipf*it is but evidence, whence the law, in some cases, implies the right of possession. But against one holding lawfully, prior possession is not evidence of superior title. In tliis case the defendants show title to the proceeds by the capture of the property,* and the claimant shows title by a prior transfer from a public enemy, which law and public policy declared absolutely void. Shall the latter title prevail because the statute under which we are proceeding has changed the tribunal having jurisdiction, or cast the burden of proof upon the claimant instead of upon the defendants ? As this case now stands we must hold to support a recovery that Congress, midway in the rebellion, enacted, that thereafter it should be lawful for a rebel officer, then voluntarily bearing arms against the United States, to sell his property while the army of the United States might be actually marching to capture it; and that he who thus bought should acquire a title which should defeat any the United States might acquire by capture'; and, finally, that actual capture and possession of the property by the United States, instead of enuring to their benefit in any way, would only tend to defeat their right to confiscate it, and practically make valid a transfer that would otherwise be declared void.

I also dissent from the ride laid down that the legality of the sale depends upon the honest intent of the parties. The rule which I think should prevail is that where the capture was imminent, and the vendor disloyal, and both these facts known to the vendee, there the sale was a fraud on the act, and the law will impute fraud to the parties, whatever might have been the motive or intent.

*

*In Cote’s Case,*(3 C. Cls. R., p. 64,) this court held that “captured property, after the capture is complete hy twenty-four hours undisturbed possession, or hy being carried into a place of safety is divested from the owner and becomes vested in the captorand also that “under the captured and abandoned property act” the title of the United States is made complete and indefeasible.”