
    EALER’S CASE. H. A. Ealer v. The United States.
    
      On Motion.
    
    
      Judgment is rendered in an action in this court for ike claimant. The defendants appeal; subsequently a decision is made by the Supreme Court in another ease, supposed to affect the merits of this. The defendants move for a new trial tinder the Act. 25th June, 1868, (15 Stat. L., p. 75.) It appears from the evidence on the trial, that the claimant, a northern citizen, involuntarily residing within the Confederate lines, bought with Conf ederalemoney which he had earned, . cotton, which was subsequently captured. He carried nothing through the lines, and had no other commercial intercourse within the lines.
    
    I. Under the Act 25ih June, 1868, (15 Stat. L., ¶. 75,) which authorizes the Court of Claims to grant a new trial, where “fraud, wrong, or injustice in the premises has been done to the United Stales,” it cannot he held that fraud, wrong', or injustice has been done by an error of law when there existed an ample measure of redress by appeal. The inconveniences of an appeal constitute no ground for the motion, and the failure to appeal or to prosecute an appeal, under a misapprehension of their legal rights, must be deemed the defendants’ misfortune.
    II. A citizen of a loyal State involuntarily detained during the rebellion within the confederate lines may, with his earnings, buy and sell, acquire property and dispose of property, so long as he gives neither aid nor comfort to the rebellion, and so long as he brings nothing within and carries nothing without the confederate lines. Such commercial intercourse is not in violation of the non-intercourse act 13th July, 1861, (12 Stat. L., p. 257.)
    
      R. 8. Hale, special counsel of the Treasury, for the motion:
    This case was tried at the December term, 18G8, and judgment rendered for the claimant for $20,736, the net proceeds of 108 bales of cotton.
    Since its trial, the doctrines in regard to non-intercourse have received a more full discussion and construction in the United States Supreme Court, as well as in this court; and it is submitted that this case involves points which, to say the least, entitle it to a fall and deliberate reconsideration here.
    The claimant was a resident of New Orleans up to and at the time of its capture, April 29, 1862.
    On the 26th May, 1862, the claimant arrived at Opelousas, then within the rebel lines,' and placed in the hands of his brother, Charles M. Ealer, money which be instructed him to invest in cotton and bold subject to bis order.
    Under these instructions, Charles M. Ealer, in the latter part of May, 1862, purchased the cotton in question, and on the 30th May made report of his purchase to the claimant, who then left for New Orleans, in company with Simon Block, by way of Washington, Louisiana. He remained at Opelousas not more than a week. It was a direct act of communicating with the enemy through the actual lines of the contending armies, for the purpose of trade, and as such illegal, irrespective of the suit, under the general laws of war, as well as the non-intercourse act of 1861, and the President’s proclamation of 12th August, 1861, (12 Stat. L., p. 1261,) then in force.
    This point was, I think, suggested on the original argument of the cause, but was not fully discussed, and in the opinion of the court received no notice. (See 4 C. Ols. It., p. 382.)
    
      Mr. Ii. J. Atkinson, counsel for the claimant, opposed:
    First, I present the record of the case:
    1867, June 11. — Petition of claimant filed.
    T867, August 21. — Letters and papers from War Department received.
    1867, November 4. — Beport from Treasury Department received. .
    1867, November 30. — Answer to petition filed.
    1868, March 9. — Order' on Treasury allowed and filed— issued.
    1868, March 14. — Beply of Treasury received and filed.
    1868, April 3. — Claimant’s brief filed.
    1868, June 1. — Defendant’s brief filed.
    Meantime, the record shows filing of depositions on part of claimant from September 2, 1867, till May 8,1868, and record evidence and reports from Departments. The number of witnesses .examined, as stated in the opinion, was “twenty-eight;” and, in addition, u a large number of receipts, certificates, and official reports.”
    On June 2,1868, the case came to hearing.,. It was not decided, however, but continued to December term, 1868.
    During vacation some additional testimony was taken.
    On 18th December, additional brief for claimant was filed.
    
      On January 11,1869, plea of limitation and alienage was filed by counsel for government.
    February 15, motion to suppress certain testimony was filed by government counsel.
    On February 16, the case Avas argued and submitted to the court.
    On March 2, Judge Nott delivered opinion of the court. Judgment for claimant in the sum of $20,736.
    On June 3, Government counsel filed application for allowance of appeal. No special reason was assigned. On same day appeal was allowed.
    On June 8, transcript of judgment was issued to counsel for claimant, and was filed by him in the Treasury Department.
    Thus the case rested until the present term. The appeal has not been perfected. No record has been taken to the Supreme Court. It does not appear on the docket.
    
    And now, on 4th April, 1870, counsel for government submitted a motion “ for a new trial in said action, and stay of payment thereon.”
    This motion is now pending. It reads as follows :
    “The defendants, by Mr. Hale, special counsel, move for a new trial on said action, and stay of payment thereon, on the ground that the purchase of the cotton in question by claimant was in violation of the non-intercourse acts, and that he derived no title thereto.”
    This is “the ground” on which it is predicated.
    It Avill be observed that no reference is made to any particular act that was violated in the purchase of the cotton in question.”
    The object of the passage of the “non-intercourse laws” was to prohibit and prevent commercial intercourse and trade between citizens residing in the State declared in insurrection, and citizens of the States that remained true to the Union.
    These acts applied, therefore, to transactions of purchase and sale between a citizen of a State declared in insurrection and a citizen óf a State not in insurrection. That was positively prohibited.
    Eut they did not apply to ordinary business transactions between citizens resident in a State in insurrection, some of whom were loyal to the Union, and had not participated in, or aided, or sympathized with the rebellion. The mere fact of residence — sometimes invohmtary, as shown in this case — did not affect the right to transact private legitimate business with citizens residing in the same State.
    In the case of Mayer v. The United States, (3 C. Cls. It., p. 249,) the principle involved is analogous to this case on the point now presented by government counsel. In fact, it comes more nearly within the statute relating to “non-intercourse” than this ease of Ealer.
   Nott, J.,

delivered the opinion of the court:

The judgment in this case was deliberately considered by the court after its merits had been elaborately argued by counsel. If the court committed an error of law, the defendants had a sufficient remedy, by appeal to the Supreme Court. If an error of fact was committed, arising from inadvertence or mistake, the court was willing to correct its oversight But the motion now made is grounded on a supposed error of law, or rather upon a decision of the Supreme Court, pronounced in another case since the judgment in this was rendered.

The Act 25th June, 1868, (15 Stat. L. p. 75, § 2,) under which the motion is made, empowers this court “ to grant a new trial” upon such “evidence as shall reasonably satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States.” We cannot say that “fraud, wrong, or injustice” has been done when the law previously provided an ample measure of redress. The inconveniences of an appeal constitute no ground for th e motion. The failure to appeal, with these defend-fendants, as with all others, must be considered their misfortune or their fault. It does not, however, exist here, for an appeal was taken, though subsequently abandoned.

In the present case we reach this conclusion with the less reluctance, because the equity appears to be strongly with the claimant, a citizen who, with no intent to do wrong, invested his money in property in a manner which this court, at least, thought proper and lawful, and who afterward rendered signal patriotic services to his country. In such a case, the judgment should not be set aside, unless there would be unquestionable wrong or injustice done.to the defendants by refusing the motion.

The doctrine laid down by the Supreme Court in Grossmayer's Case we do not propose to extend by ajiplying it to cases resting on different facts. In tliis case' the claimant was involuntarily within the rebel territory when the purchase was made; the cotton was bought with Confederate money; he toot nothing into the insurrectionary district; he brought nothing out. His commercial intercourse with the enemy is only theoretically interdicted by the statute; practically it worked no possible advantage to the Confederacy. If anything it tended to withdraw from them their real wealth, and to hasten the depreciation of their worthless money.

The Supreme Court has held that a loyal citizen residing within the insurrectionary district had the right to acquire property, even though he bought of rebels; and that for the proceeds he may maintain an action under the Abandoned or captured, property act, (Pollard’s Case.) We do not think that a loyal citizen did not possess that right, because his home lay within a northern State; nor because his residence in the insurrectionary district was involuntary. This claimant was bound neither to bring his Confederate money through the lines, nor to throw it away. While within the rebel territory he possessed all the rights of any resident to buy and sell, to acquire property and to dispose of property, so long as he gave neither aid nor comfort to the rebellion. The motion for a new trial must be denied.  