
    MRS. BELLE OSBORNE, Executrix, v. THE UNITED STATES.
    [Congressional 97.
    Decided May 6, 1889.]
    
      On the Proofs.
    
    Two partners, one loyal, the other disloyal, own and work a plantation in ' Louisiana. A quantity of sugar made on the plantation is seized in bulk. It has not been divided between the partners, nor is the condition of the partnership now shown. The claim of the loyal partner to half is transmitted under the Bowman Act. The defendants object that the loyalty of both partners must be established before-the court can entertain jurisdiction.
    I.Congressional cases transmitted under the Bowman Act involve no legal question for the court to determine, and do not necessarily rest upon ^a legal right. ,
    II.The responsibility for the investigation of such a claim when it is unknown to law, equity, or admiralty, and is not founded upon any principle of legal or natural justice, rests with the committee which transmitted it and requested the investigation.
    III. The Bowman Act recognizes the right of the Government as a belligerent during the civil war to take enemies’ property in enemy’s territory without compensation, coupled with the policy of making compensation to its own loyal adherents.
    IV. The jurisdictional restriction of the statute, the loyalty of the claimant, is strictly personal; it simply forbids the party to speak or the court to listen until it be primarily established that he was an adherent and not an enemy of the United. States.
    
      V. The voluntary continuance of a prior partnership to carry on an innocent business after the beginning of hostilities did not per se make a man disloyal because his partner was.
    YI. Though the legal title to partnership property islodged in the partnership, still the individual par, ners have several rights and interests therein, sufficient to entitle one to a several hearing in a Congressional case.
    VII. In a Congressional case, a loyal partner possessed of a right or equity in property taken for the use of the Armj^ during the civil war is entitled to have the facts found.
    
      The Reporters’ statement of the case:
    The claim in the above entitled case for supplies or stores alleged to have been taken by or furnished to the military forces of the United States for their use during the late war for the suppression of the rebellion was transmitted to the court by the Committee on War Claims of the House of Representatives on the 18th day of April, 1884.
    On a preliminary inquiry the court found that John Osborne, the person alleged to have furnished the supplies or stores, or from whom they were alleged to have been taken, was loyal to the Government of the United States throughout said war. The defendants then moved for a rehearing upon grounds set forth in the opinion of the court.
    The claimant in her petition makes the following allegations:
    That there was taken from the decedent, John Osborne, in Louisiana, for the use of the Army, by military authority, certain property thus described in the petition: 500 hogsheads of sugar, 10,010 bushels of corn, 50 mules, 14 horses, 100 head of cattle, of the alleged value of $67,050.
    The court filed the following findings of fact to be transmitted to Congress:
    I. The plantation from which the property was taken is situated 10 miles below Alexandria, La., and was the property of Jolln and William Osborne. It was worked by them in partnership, both before and during the war, up to the time of seizure. The state of the partnership at the time of the seizure, in l&ay, 1864, has not been shown, either between the partners or .between the firm and third persons; nor has the loyalty of the other partner, William Osborne, been established. The property seized was in bulk on the plantation, and had not been divided between or set off to the respective partners.
    
      II. Between the 5th and 13th of May, 1.864, the military or naval forces of the United States seized and took from the plantation of John and William Osborne 1,000 hogsheads, containing 1,000,000 pounds of sugar belonging to them as partners. This sugar was laden on naval gun-boats or army transports on the Bed Biver. It does not further appear what became of it, nor whether it was issued to or used as stores or supplies by the Army or Navy; nor whether it came to the official custody of the chief quartermaster of the Department of the Gulf,*iu New'Orleans, or of the chief commissary of the department; nor whether it was treated as abandoned or captured property and sold, and the proceeds paid into the Treasury,
    III. The value of the sugar at the time of capture in the local market of Alexandria has not been shown; but it appears that on the 5th May, 1864, the commissary department purchased large quantities of sugar in Alexandria at about 9 cents per pound. Private property at that time could not be taken out from the vicinity, for Ihe reason that the evacuation of Alexandria by the military forces of the United States was then taking place, and all of the means of transportation were in the possession and control of the Government.
    IV. During the same campaign of General Banks on the Bed Biver, in the spring of 1864, there was taken from the plantation, by and for the use of the Army, property of the kind described in the petition, consisting of corn, mules, horses, and cattle, likewise belonging to the said partnership of John and William Osborne, the fair and reasonable value of which at the time and place of seizure was $19,750.
    V. The decedent, John Osborne, in the year 1869, was adjudged a bankrupt on his own petition, and received a discharge in bankruptcy. This claim was not included in nor made a part of his schedule of assets filed in the proceedings in bankruptcy.
    
      Mr. Gilbert Moyers for the claimant.
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The claim in this case was transmitted under the Bowman Act on the 18th of April, 1884, by the Committee on War Claims of the House of Representatives.

The petition alleges it to be the claim of John Osborne for certain personal property furnished by or taken from him for the use of the Army. The evidence shows that the claim is for quartermaster and commissary stores and supplies taken from the plantation of John and William Osborne, near Alexandria, La., in May, 1864.

Concerning the title, the court has found that the plantation from which the property w as taken belon ged to John an d William Osborne and was worked by them in partnership, both before and during the war, and up to the time of seizure. The state of the partnership at the time of the seizure in May, 1864, has not been shown, either between the partners or between the firm and third persons. The property seized was in bulk on the plantation, and had not been divided between or set off to the respective partners.

Concerning the loyalty of the persons from whom the property was taken, the court has found that John Osborne was loyal to the United States and that the loyalty of William Osborne has not been established.

On these facts the counsel for the G-overnment seeks to dismiss the claim for want of jurisdiction, upon the ground that the loyalty of 1,1 the person who furnished such supplies or stores” has not been established as required by the fourth section of the Bowman Act.

If the case were a suit at law, unquestionably the position of the counsel for the Govérnment would be well taken. That partnership property is the property of the firm and not of the individual members thereof, and that the loyalty of a partnership can be proven only by proving the loyalty of every member are propositions too well established to be discussed. But in Congressional cases, which are cases transmitted by a committee of Congress under the Bowman Act for the ascertainment of facts, no legal question is involved, and they do not necessarily rest upon a legal right. The court, in compliance with the request of a committee, simply causes a claim to be investigated, and finds whatever facts either party may prove.

The claim may be one unknown to law, or equity, or admiralty, and not founded upon any principle of legal or natural justice. The responsibility for the investigation of such claims by judicial means and for finding the facts established, and for reporting them to Congress, rests with the committee which transmitted the claim and requested the investigation.

This being the nature of the procedure, the fourth section of the act recognizes as the policy of the United States during the civil war thebeliigerent’s righttotake enemies’property in an enemy’s territory without compensation, coupled at the same time with thepolicy of the Government’s recognizing its own loyal adherents and ofmaking justcompensationfortheirproperty wher-evertaken. Accordingly,whilethestatuteallowsacommitteeof Congress to send any kind of claim here, however shadowy, fanciful, or unjust, it provides that the court shall not assume jurisdiction of this class of war claims until the petition shall aver and the evidence prove that the person from whom the property was taken “ was throughout that war loyal to the Government of the United States.”

This jurisdictional restriction, therefore, is strictly personal. It does not relate to the cause of action nor to the locus of the transaction, nor does the finding of loyalty affect or relate to the merits of the case. The law simply forbids the claimant to speak or the court to listen until it be primarily established that the person from whom the property was taken was an adherent and not an enemy of the United States. It can not be that a man shall not be heard in Congress through the medium of this court because somebody else was guilty of a disloyal act.

The persons from whom the property in this case was taken were John and William O-borne. The one has been found loyal and the other, to all intents and purposes, though not in form, has been found disloyal. In the earlier litigation of the civil war it was maintained on the part of the Government that ordinary transactions with disloyal persons constituted disloyalty, but that assumption was emphatically overthrown by the Supreme Court; and in many forms it was held that persons domiciled within the Confederate lines might carry on the ordinary transactions of life so long as those transactions did not constitute aid and comfort to the enemy. We may therefore assume it to be settled that John Osborne had a right to continuo the ordinary business of a planter though his partner was disloyal; that is to say, the voluntary continuance of a prior partnership to carry on an innocent business did not per se make a man disloyal because his partner was disloyal.

The question then reverts whether the loyalty has been established of the person from whom the property which is the subject of the present claim was taken. That claim is not for the partnership property as such; it is simply for the share or interest therein of theloyal partner. The ownership and possession of that property were both in two men whose business relations as between themselves and the rest of the world constituted them partners. Neither had a several right in the property, but each had an equal and equitable interest therein. It can not be supposed that Congress intended in a proceeding authorized in the interest of equity and justice that the court should interpose a fiction of the lex mercatoria or a technicality of the common law. The legal title to partnership property is indeed lodged in the partnership, and a joinder of the partners is necessary to support an action at law; and still the partnership is made up of persons, and those persons are the only persons who in fact and in law can control the property or suffer from its loss. It is sufficient for the purposes of the statute that John Osborne owned and possessed, not the entire legal title to the property, nor yet a several right or interest therein, but that he did own and possess a valuable legal right, which would have enabled him to go into a court of equity and procure-a receiver for its protection and the ultimate ascertainment of his own share or equity in the property itself.

That share or equity the Government has virtually taken in taking the property. The court does not pass upon any question of legal or equitable right, either as against the other member of the firm or as against the assignee in bankruptcy of the claimant’s decedent. Those questions belong to Congress. All that the court does is to find the facts for Congress to consider; and all that it now decides is that in these Congressional cases a loyal partner possessed of a right or equity in property taken for the use of the Army or Navy during the civil war is entitled to have the facts found.

The order of the court is that the defendants’ motion for a rehearing on the preliminary question of loyalty be overruled.  