
    FURMAN & CO.’S CASE. Francis Furman and Geo. Searight v. The United States.
    
      On the Proofs.
    
    
      The claimants, at the outbreak of the rebellion, are merchants at Nashville. One of the firm goes to Alabama to collect debts. Having collected a sum of money, he deposits it at Florence, prior to the capture of Nashville by the Union forces, and directs it be sent to New Orleans and invested in sugar; this is subsequently done prior to the capture of Nm Orleans, and the sugar stored in that city. In the summer of 1863, it is seiged by the United States military authorities, sold by an assistant quartermaster, and the proceeds accounted for on his current accounts. The defendants object to the competency of the evidence offered of the sale.
    
    I. Where a loyal citizen, residing ■within the Confederate lines, transmits money to another city, also within the Confederate lines, to heinvested in sugar, &c., and the investment is not made until after the place of domicile is captured, so that the purchaser becomes thereby a resident within the Union lines, the transaction does not come within the prohibition of the “Non-intercourse acl,” lZth July, 1861, (12 Stat. L., p. 257.)
    II. A letter, written by an ex-quartermaster to the Adjutant General, inclosing an account showing the sales of captured property, is, with the account, competent evidence for the claimant to fix the amount of the proceeds when transmitted to this court, properly authenticated by the War Department.
    
      Mr. li. J. Atkinson for tbe claimants:
    This case arises on tbe following state of facts:
    Prior to and at tbe breaking out of tbe rebellion, tbe claimants, Francis Furman and George Searight, under tbe name of Furman & Co., were engaged in tbe wholesale dry goods business in Nashville, Tennessee. In tbe fall of 1861, when tbe rebels occupied Nashville, they were compelled, by confederate officers commanding their military forces, to vacate their store, which was occupied by tbe confederates, without any compensation being made therefor, and their business was substantially broken up. They bad debts due to them from their customers in Tennessee and Alabama, and were themselves indebted.in New York, Philadelphia, and Baltimore. Being out of business in Nashville, the rebel forces still occupying it, in the latter part of 1861, Mr. Searight concluded to go to or near Florence, Alabama, where he had lived before he went to Nashville, and where his wife had some relatives, thus removing her from scenes of actual warfare to a quiet and interior point, and devote himself to making collections from their debtors in that region of Alabama and Southern Tennessee. The funds collected were generally notes of Tennessee, Georgia, and South Carolina banks, as well as confederate notes. As he collected, he deposited in the hands of McAlister, Simpson & Oo., merchants of Florence, for safekeeping. Having accumulated some funds from collections, of the unstable character circulating there, and which passed current in New Orleans, he instructed McAlister, Simpson & Co. to purchase, through their correspondents in New Orleans, one hundred hogsheads of sugar for the firm of Furman & Co., and hold the same in store until further advised. Accordingly, on the 21st February, 1862, McAlister, Simpson & Co. advised Messrs. Payne, Huntington & Co., of New Orleans, to purchase one hundred hogsheads of sugar for said Furman & Go., and on the 6th March, 1862, said Payne, Huntington & Co. advised that said purchase had been made. The sugar was stored in Wood’s cotton press, and marked “F. S. N.” — (meaning Furman, Searight, Nashville.)
    Said sugar remained in store, until, in July, 1863, Captain J. W. McClure, acting quartermaster United States Army, seized said cotton x^ress for military purposes; and the sugar, suxqiosed to be “the x>roperty of rebels,” was also seized, and sold by Cax>-tain McClure at auction — being refilled,produced 69 hogsheads— the net proceeds of which amounted to $10,42171, as reported by Captain McClure.' This was returned in his accountfor the month of- July, 1863, and the same has been duly accounted for to the United States and carried into the Treasury to the credit of the “captured and abandoned x>rox>erty fund.”-
    The evidence discloses all the facts, in a manner connected and clear, and is corroborated by the Government records and returns.
    The net proceeds of the sales were $10,421 71, as shown by auctioneer’s return, (pp. 8, 9, Record;) also by official letter of Captain J. W. McClure to the Adjutant General of the United StatesArmy, wherein he says: “ The x>roceeds of sale, $10,421 71, were taken up in my account current as cash, for the month of July, 1863.” Iu Ms account current for July, 1863, Captain McClure credits the United States as follows:
    “By cash received from sales of confiscated property,, $29,986 52.”
    And by official letter of the Third Auditor of the Treasury, dated May 14, 1869, it is shown “that the above amount ($29,986 52) has been transferred by requisition to the credit of the ‘ captured and abandoned property fund,’ on the books of the Secretary of the Treasury.”
    This evidence establishes, beyond question, the facts of ownership of the sugar, its seizure and sale by Captain J. W. McClure, acting quartermaster; that the proceeds thereon have been accounted for in his returns; and that the same have been transferred to the credit of the “ captured and abandoned property fund,” on the books of the Secretary of the Treasury, as required by law.
    The record of claimants is clear, not only as loyal Union men, devoted to the Government, and opposed to the rebellion, but as men of standing in the community, of unquestioned integrity and good character in all respects as citizens. These facts are proven by gentlemen of their acquaintance, some of them of high position, who speak from personal knowledge.
    About the close of 1862 the military necessities of the confederacy, so-called, required the enforcement of the conscription law in that locality, and it happened (not entirely by chance, perhaps) that Mr. Searight was decreed by the tribunal in charge of the machine a good subject for service in the confedate army, but he declined the invitation. He was then arrested.
    Having no other resource, in order to evade the conscription, and be discharged from arrest, Mr. Searight furnished money for a substitute. Being again at liberty, he proceeded to close up his business, as far as possible; and when opportunity offered, made his way back to Nashville, early in 1863, where the old flag was now floating.
    The case is presented under the third section of “An act for the collection of abandoned property,” &c., appproved March 12, 1863, and other acts relative to captured and abandoned property, or property seized and sold, and the proceeds paid into the Treasury. The facts required to be shown to the satisfaction of the court are ownership, seizure, sale, amount and disposition of proceeds, and the loyalty of the claimants. All of these facts are specifically proved, with a minuteness and certainty seldom found in cases of this description. It was all done in a regular business-like manner, from the original purchase until the final transfer of the net proceeds to the credit of the u captured and abandoned property fund” in the Treasury, as the law required, and where it now remains, subject to the disposition of this court, under the law.
    
      Mr. B. 8. Rale, special counsel of the Treasury, for the defendants :
    This petition, it will be noticed, is verified by the oath of both claimants. The proof shows some important variations from these statements. By this it appears that Searight remained in Nashville till the summer of 1862, and then removed to the vicinity of Florence, Alabama, with his family, and remained there till some time in 1863. His object in so doing is said to have been to “ wind up his business through this part of the country.” While remaining there attending to “winding up his business ” he was conscripted by the rebel authorities, and hired a substitute, named Ham, and put him into the service.
    As a historial fact, it is known that Nashville was occupied by the Federal troops on the 25th day of February, 1862, and from that time remained in the firm and steadfast possession of the Union forces, and that Northern Alabama was overrun by General Buell in the early part of 1862, and an imperfect and doubtful occupation Of the same maintained by the Federal troops for a few months only.
    New Orleans was in possession and control of the rebels till 25th April, 1862.
    On these facts the following propositions are submitted:
    I. The transaction of the purchase of the sugar in question was, both in intent and in actual fact, a violation of the non-intercourse act of 13th July 1861, (12 Stat. L., p. 257,) and of the proclamation of the President of 16th August, 1861, (12 Stat. L., p. 1262,) which were then in force.
    Nashville, the domicile of the claimants, was occupied and controlled by the United States forces, as stated, 25th February, 1862. From that time intercourse between inhabitants of Nashville and inhabitants of Alabama and Louisiana, not occupied and controlled by the United States forces, was unlawful. Fort Donelson had surrendered 16th February, 1862, (Rebellion Record, vol. 4, p. 138,) and from that time the immediate occupation of Nashville by our forces was imminent and inevitable. Yet, in the face of the advance of our troops and the immediate occupation of Nashville, this firm hurries off one of its members into a State then wholly unoccupied by our forces, there to engage in intercourse with those in active rebellion, and to make purchases at New Orleans, then in exclusive occupation of the rebels.
    The domicile of both Furman and Searight was Nashville, is so alleged in their petition, and not contradicted by the proofs. Whether the order for the purchase of the sugar was given on the 26th February or the 6th of March, it was in letter and strictness illegal, being made after our occupation of Nashville; and it was certainly illegal in spirits and intent, for when Sea-right left Nashville he must have been fully advised of the immediate and near advance of our forces, and have hastened forward in advance of them for the sole purpose of this and similar traffic.
    II. Claimant’s proof of loyalty fails.
    Searight, with the assent of Ms partner, (for he went upon the business of the firm, and the firm claimed the benefits resulting, and no objection on the part of Furman appears,) deliberately removed himself from the control of the Union forces and placed himself within that of the rebel forces. By this act the claimants made themselves responsible for the resulting aid and comfort to the rebellion. By their voluntary act Searight was subjected to the conscription, to relieve himself from which he placed a soldier in the ranks of the rebel army.
    Again, the very act of attempting to carry on an illicit trade with the rebels is of itself an act of disloyalty to the Government, and of aid and comfort to the rebellion.
    III. The proceeds of the sugar in question are not shown to have come to the United States Treasury.
    The evidence only shows that McClure, acting quartermaster, seized the sugar in question. There is no proof that he sold it, none of amount of proceeds, and none that such proceeds were paid or accounted for to the Treasury.
    McClure’s account, filed with the Department, does not show the proceeds of the sugar in question to have been received by him, and no such statement appears in the Treasury Department.
    In the lack of any proof on this subject, the claimants are not entitled to recover.
   Casey, Ch. J.,

delivered the opinion of the court:

1. At and before the commencement of the war Of the rebellion, the claimants were resident at Nashville, Tennessee, and engaged in the wholesale dry goods trade.

In the latter end of 1861, and beginning of 1862, they had sundry debts due them from merchants residing in Alabama, for goods sold to such merchants. At this time Searight, one of the firm, went there to collect these moneys. Having collected a considerable sum in Confederate funds and southern bank notes, he, in February, 1862, deposited it with McAlister, Simpson & Co., merchants and factors, of Florence, Alabama, with directions to remit these funds to New Orleans, and have them there invested in sugar, for account of Furman & Co. McAlister, Simpson & Co., in accordance with these instructions, remitted the funds to Payne, Huntington & Co., of New Orleans, with orders to invest them in sugar, and store them at New Orleans, for Furman & Co. In pursuance of these orders, Payne, Huntington & Co. purchased for account of Furman & Co. 100 hogsheads of sugar, and stored it at Wood’s cotton-press in the city of New Orleans.

2. The exact date in February, 1862, when Searight deposited the money with McAlister, Simpson & Co. is not shown, Payne, Huntington & Co. acknowledge the receipt of the order to purchase on the 26th of February, and recite in their letter that the letter from McAlister, Simpson & Co. was dated the 21st February, 1862. And on the 6th March, 1862, they advise the latter again that they had made the purchase, in accordance with their former instructions, and had stored the sugars.

3. On the 24th February, 1862, the Union Army occupied Nashville, Tennessee, and it was thenceforth held by the Union forces during the war. The city of New Orleans was held by the insurgents from the commencement of the war until the last of April or beginning of May, 1862, when it was captured by the combined land and naval forces of the United States, under the command respectively of General Butler and Admiral Farragut, and from that time it continued in the occupation and under the control of the United States forces.

4. Some time in the summer of 18G3, these sugars, which had been reduced from 100 hogsheads to 67 by shrinkage and refilling, were seized under military orders, and sold by Captain J. W. McClure, an assistant quartermaster of the United States Army, for the net sum of $10,421 71. These proceeds were duly accounted for in his accounts current as quartermaster, and have been regularly covered into the Treasury of the United States.

5. The evidence shows that the claimants were loyal men, and gave no voluntary aid or comfort to the rebellion or to persons engaged therein.

6. The special counsel of the United States objected to the competency of the evidence of the sale by Quartermaster McClure, contained in his letter to General Yincent, Assistant Adjutant General, of June 7,1866, and the inclosed original bill-of sale, after said McClure was no longer in the service of the United States, certified from the records and files of the War Department. The record contained other evidence of the actual and seizure sale, in July, 1863, of these sugars by Quartermaster McClure, and of the price received for them. So his account current settled at the Department for the month of July, 1863, Showed receipts from the sale of confiscated property, amounting to the sum of $29,986 52, without showing the specific lots of property, and what each was sold for.

The court hold that the letter of McClure of June 7, 1866, and the accompanying bill of sale, received and acted upon by the War Department in the adjustment of the accounts, and certified here, taken in connection with the other evidence in the cause, was competent to show what were the net proceeds of the property in question, and so overruled the objection to its competency.

The court also, hold, as a conclusion of law, that the facts stated did not involve any violation of the non-intercourse laws, and that the property of claimants was not subject to capture and forfeiture.

That upon all the facts stated the claimants are entitled to a judgment for the net proceeds of the sale of their property seized, amounting to the sum of $10,421 71, and for which judgment is to be entered in their favor.

Nott, J.,

concurring:

I disagree to the preliminary ruling of the court admitting in evidence the letter of Captain McClure, of June 7, 1866, and the account which it incloses. The letter imports that the officer had then left the service; he should have been called to prove the facts which his letter sets forth. This unofficial communication is incompetent, as we held in Brandeis & Crawford’s Case, (3 C. Cls. R., p. 99.)

The evidence being admitted by the ruling of the majority, I deem it my duty to treat it as a juror should. The judges of this court have a double task assigned to them in determining both the law and the fact, and it leads to many complications often embarrassing and perplexing in the final disposition of a case. If these preliminary rulings come to multiply the difficulties, it will be impossible often to arrive at a result. It is best for all parties not to mingle them with the final consideration of the case on its merits, and the evidence being admitted, to give to it all the weight which the ruling may indicate it should possess.  