Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-10-20
Y OLUME XXXIII.

I be illegal, and the safe void. lhc act US
flcio does not work the forfeiture of prop
erty, real or personal, subject TO confscation
or Of itself in any way prohibit those en-
, gagged in rebellion, OF giving aid or comfort
thereto frOm continuing the title therein
The forfeiture results from the judgment o.
the court, the order Of condemnation and
decree Of sale The United States is a
necessary party in every proceeding Of this
character and the proceeds OF the sale ol
all such sequestered property by the terms
Of the act goes to the use Of the Government
Of the United States.
The crime through which the forfeiture is
worked is against the United States, and the
atonement is made alone to that nation. No
other person can take advantage Of the law
or enforce its penalties denounced against
those who violate it. Il follows, therefore,
that the clause Of the 9th section which de-
clares that call sales, transfers, or convey
ances Of any such property after the expira-
/ tion Of said sixty days from the date of such
I warning and proclamation, shall be null
! and vOid,o must be construed to mean as
against the United States, and no other or
third person. This construction is sustained
by the latter clause Of the same sentence,
which declares that 'it shall be a sufficient
bar to any suit brought by such person, for
the possession OF use Of such property or
any Of it, to allege and prove that he is one
Of the persons described in this section"
The obvious meaning Of this provision of
the act is, TO protect purchasers at "Confs
cation Sales" made under a decree of the
United States Courts against any suit that
the former Ownerof such property may bring
against them for its recovery. In other
words, 70 secure the title to the purchaser
and at the same time to prevent fraudulent
conveyanees, made to defeat the right of the
United States 10 confscate the property of
those who offended its law. How otherwise
could the rebellion of the vendor be plead
as a bar TO a suit brought by him to recover
property which he had voluntarily sold or
conveyed? This would, indeed, be anoma-
lous, and certainly not within the scope and
meaning Of the act Of Congress.
This construction, we think, isin harmony
with the spirit and meaning Of the act it
self and certainly not in conflict with the
enlightened christian view entertained by
all modern nations Of cOnfscation laws.
IL results that the deed from the defend
ant, MCFARLAND, to the complainant
is a valid muniment of title as against all
persons except the United States, and liable
only to be contested by it under a regular
proceeding to confiscate the lands conveyed
for the crimes Of the vendor.
ID. This view Of the act of Congress as
affecting this case, render it necessary mi
nutely to review the Chancellor's decree in
other respects so elaborately criticised in ar
gument It is propeR however, TO say, with
reference to the attachment issued by the |
Justice of the Peace, 4. X. MEEK, that we are |
Of opinion that there il no valid objection to |
it. The attachment upon its face is made |
returnable TO the Circuit Court Of Jefferson |
county, and the fact that the amount Of the |
debt claimed by the plaintiff in the attach |
ment is beyond the jurisdiction Of the JUS |
tice 10 hear and determine, can make no |
difference. The provisions of the act of /
1852 are carried into the Code, which de- |
clares, section 4, l2l, that "Justices Of the /
Peace are vested with the power, To /
grant writs Of attachment returnable to the /
Circuit Court in the same manner, and to
the same extent as the Circuit Judge"
the policy Of this provision Of the
statute may be doubted, we are not, under
the liberal rules Of construction which have
so often been recognized by this court as ap-
plicable TO the attachment laws, at liberty to
restrain its meaning by construction, within
the jurisdiction Of Justices Of the Peace in
other cases.
Sd. The objection that the attachment in
his case was returned TO the Circuit Court
1t cambridge, and received and endorsed,
filed" by the Clerk Of that court some short
lime after the term for which he was Nected,
had by its own limitation expired, i, alike
and invalid. No objection is
made to the regularity and qualifications of
he Clerk, and it is clear, as well upon the
e bx~ gfa |
ute of 1865, chapter 81, section 2; that he
vas at least an officer de fdctO, and as such
ais official acts, so far as they concern the
lights of third persons and the public, are
Is efectual and valid as if they had been
by an officer de jure.
This principle was fully recognized in 3
omewhat similar case, in manuscript Opin-
on at the last term Of this court at jackson,
md we think it is well sustained both by
he general law and the uniform cause Of de-
,isions in this Stated KENT's Com, 295,
farmers and Merchants Bank VS.. CHESTER,
Hump, ASS, 8 HUMP, 163, 2 SWAN, 81.
4th. Objection is also taken to the validity
# the Chancellor's decree, with reference to
he defendants, LIVINGSTON and wife,lo the
round that they were not served with
,rocess 70 answer.
The record, it is true, is silent as to the
ervice of process upon these parties; but
whether they have not waived their right to
nsist on this defense, by their appearance in
he court below, does not very clearly appear,
lor is it now material for us TO inquire.
The original attachment relied on by
hem. appears tohave been lost or destroyed,
nd a copy has been substituted. The man
ler in which this substitution appears to
ave been effected is fatally defective. 1t is
nough TO show by affidavit or otherwise,
hat The record or other paper designed to be
upplied, is lost or mislaid unintentionally.
{ must appear in addition thereto, that
Ipon proper application to the court, il was
rdered by the court that the lost record or
,aper be supplied by the fest secondary evil
.ence the nature of the case will admitof. Code,
ection 1907, LANE ct al, vs. r. and S. G.
-oNEs, manuscript. No order of substitu-
ion in this case appears, nor does the record
how the fact that any such application was
yer made. The court is compelled theres
ore to treat this attempted substitution as
utility, and the papers thus introduced into
he record, as furnishing no ground upon
which any valid decree can be pronounced.
The decree Of the Chancellor will be re-
-ersed, and a decree entered here in confor-
aitv TO this opinion, with leave TO the de
endant Mrs. HoIsToN, to have the cause
ii need be, to enforce her attach
nent upon such property as was seized un-
Ter it. and not affected by this opinion.
MILLIGAN, Judge.
A true copy. Attest: