
    William Donnelly et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants become partners in 1863. Before that they lived in different places within the inswrreclionary States. Each is a witness and testifies of the other's loyalty and of his own. No other proofof loyalty is given which goes to the entire 
      
      length of the rebellion. Parol proof is offered to show that claimants’ names were on a list of persons “ obnoxious ” to the rebel military authorities, but the list is not produced or accounted for, while its existence subsequent to the capture of Wilmington is shown. The claimants’ place of business is Wilmington, North Carolina, but they say nothing on their examination to negative the suggestion of their being engaged in blockade-running.
    
    I. The testimony of two partners, each as to Ms own and the others’ loyalty, is insufficient and unsatisfactory under the “Abandoned or captured property act,’’ (12 Stat. L., p. 820,) especially where it appears that they lived in different places during a part of the rebellion.
    II. Where a confederate list of “ obnoxious persons ” is shown to have existed after the capture of a place by the United States, parol testimony of its contents is not admissible, unless its loss be proved or its absence accounted for.
    Mr. L. G. Hine for the claimants :
    This cause comes before the court by original petition.
    The petitioners were owners of 348 bales of cotton at Wilmington, North Carolina, at the time that city was occupied by the Union army, in March, 1865. The cotton was captured by the army, sold, and the proceeds turned into the Treasury Department.
    The petitioners bring their suit to recover the proceeds of the sale of said cotton, and base their claim upon the act of Congress entitled “An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States,” approved March 12, 1863.-
    This case presents no controvertible point of law.
    Questions of fact only are involved, to wit :
    1. Petitioners’ ownership of the cotton.
    2. Its capture, sale, and the net proceeds of its sale.
    3. The petitioners’ right to said net proceeds.
    4. That petitioners never gave any aid or comfort to the then flagrant rebellion.
    
      Amount, ownership, and capture of the cotton.
    
    General Hayes testifies : “ I seized 348 bales of cotton, as near as I remember, belonging to or claimed by Donnelly & Co.; I think the cotton was seized the latter part of March, 1865.”
    Patrick Egan, one of the claimants, testifies that William Donnelly and himself, as partners, had on hand 348 bales of cotton on the 22d day of February, 1865, when the city was occupied by Union troops; that every bale of it belonged exclusively to the petitioners ; that in obedience to orders of the commanding officer the petitioners reported said cotton to General Hayes, and' soon thereafter it was taken by treasury agents and shipped on two different vessels to the city of New Tork, and that said cotton weighed 166,600 pounds.
    William Donnelly, one of the petitioners, testifies that the petitioners at the close of the rebellion had 348 hales of cotton, weighing about 166,600 pounds; that as near as he can recollect, in March, 1865, there were 268 hales shipped by the schooner Sir John Her-schell to New Tork, and the balance of it, 80 bales, by the schooner Charles J. Baymond to New Tork; that General Hayes took possession of this cotton, and that witness informed him that petitioners had it stored in various places in Wilmington.
    This cotton was turned over to the treasury agent. See page 3, printed testimony.
    General Hayes testifies : “ It was part of my duty to investigate the loyalty of parties whose property I seized; I spent a large part of my time in such investigations; I know what the general speech of people was in regard to claimants having given aid or comfort to the rebellion. The general information that we received was that claimants were foreigners and had never given any aid or comfort to the rebellion. * * * I made particular inquiry in regard to these gentlemen, and never ascertained that they had committed any disloyal act.”
    On cross-examination this witness says : “ I saw an order issued by the commander of the confederate forces to burn the cotton of all Union citizens, and these claimants’names were on the list.”
    Patrick Egan, one of the petitioners, testifies : “ I know that William Donnelly and myself were in all respects loyal to the government of the United States during the late rebellion; that neither the said Donnelly nor myself ever gave any aid or comfort to said rebellion; the petitioner, Donnelly, and myself had innumerable conversations in relation to said rebellion, and in relation to the government of the United States during the continuance of said rebellion from its commencement, and I am thoroughly satisfied from these conversations, and from the conduct of said Donnelly during said rebellion, that he had no shade of sympathy with said rebellion.”
    William Donnelly, one of the petitioners, testifies : “I never served the confederate government in either a civil or military capacity, nor joined any organization connected with it; I never supplied them with anything in any way; I had expressed my sentiments, so far as I could, always in the success of the North; my name was on the black list; that was a list of men of Union proclivities, and Wade Hampton issued an order that the property of those who had Union proclivities should be destroyed, and I had great trouble in saving our cotton ; this order of Hampton’s was issued some time in January, 1865 ; I never in any way gave aid or comfort to the rebellion. In his private conversations Mr. Egan always expressed Union sentiments, and the futility of the rebellion ”
    On cross-examination the witness says : “I never took an oath of allegiance to the confederacy; I' did to the United States when they took possession; I was among the first to take the oath. * * I made no contributions to aid the confederacy during the rebellion ; I had to pay taxes, of course. * * I know that he (Mr. Egan) never served the southern confederacy in any capacity ; he was too old a man — he was, 1 should think, 60 years of age.”
    The petitioners’ right to the net proceeds of the sale of their cotton is dependent upon the 1st, 2d, and 4th facts heretofore stated.
    
      Conclusion.
    
    The petitioners’ ownership of 348 bales of cotton, weighing 166,600 pounds, and its seizure under the act of Congress referred to, I shall consider as proved beyond all possibility of dispute.
    The fact that said cotton was sold and the net proceeds conveyed into the United States treasury is shown by the best attainable evidence. It is no fault of the petitioners that their cotton was commingled with other lots, and the sales aggregated so that it is impossible to separate the net proceeds of the sale of cotton belonging to the different owners. I apportion it, (to the petitioners’ unquestionable great loss,) as the only way in which an approximate correct result can be reached.
    The central fact in suits under said act of Congress, necessarily, is whether or not the suitors ever gave any aid or comfort to the then raging rebellion. I concede that the petitioners are required to prove a negative; to show that their hands have no stain of complicity in the rebellion upon them. ^Reversing the rule of evidence which has prevailed so many ages that its origin is concealed in the night of time, these petitioners must prove themselves not guilty. Under this act of Congress it is not required that claimants should have done anything on behalf of the United States; it only requires that they should have done nothing to add force to that wonderful whirlwind of passion and folly which entombed more than half a million of men and laid waste a large section of the Union.
    
      The petitioners are foreigners, and as such “ owed ” no allegiance to the United States. All that can be required of them is, that while domiciled on our soil they shall obey our laws, and not adhere to our enemies, giving them aid and comfort.
    The evidence shows that petitioners were in the south at the outbreak of the rebellion, engaged in business; that they would have come north if it had been possible; that they were considered as Union men, and gave no aid or comfort to the rebellion, from the commencement to the close thereof; that they were considered as disloyal to the “ Southern Confederacy,” and favorable to the United States, by the rebel military authorities.
    The testimony of General Hayes on this point is important, as showing the estimation in which the petitioners were held in their city, and the result of his investigations at a time when the rebellion was rife, and as showing too that they were marked for destruction by the rebel commander because of their “ Union” sentiments. It were a sad commentary on American justice, if the Union sentiments and acts which instigated a rebel commander to order the destruction of the petitioner’s property, should not be very strong evidence in a court of justice of the United States that they were entitled to the proceeds of the sale of that property, when their right depends only on the question of their having aided the rebellion. The testimony of Edward J. Egan is direct, positive, and unequivocal. ■ And he testifies from an intimate personal association with them from the commencement to the close of the rebellion.
    But above all, as showing the justness of their claim and the genuineness of their pretensions to ownership, and freedom from acts unfriendly to the United States, these petitioners presented themselves as witnesses and submitted to a most searching and ingenious cross-examination, the one in this city by the learned Assistant Solicitor, the other in Wilmington by a lawyer of ability selected to represent the government. Their testimony -is clear, succinet, and unhesitating, and unaided would establish their right to the proceeds of the sale of their cotton in the absence of adverse testimony.
    The net proceeds of the sale of petitioners’ cotton was $27,804 18, for which amount they ask judgment against the United States.
    The Deputy Solicitor for defendants.
   Peck, J.,

delivered the opinion of the court:

William Donnelly and Patrick Egan claim the proceeds of 348 bales of cotton, which they aver were seized at Wilmington, North Carolina, and sold in New York, under authority of the United States, for a sum not less than $90,000, which sum is in the public treasury.

The cotton was seized at Wilmington in the month of March, 1865. These parties rest their claim for the proceeds upon the 3d section of the act of March 12, 1863.

Before a recovery can be had under the section referred to, among other facts which must neoessárily be proved to the satisfaction of this court, this stands prominent, that a claimant has never given any aid or comfort to the recent rebellion. In the case of Margaret Bond, (2 C. Cls. B,., p. 529,) which is the leading and ruling case, best considered by the court as determining what would be required of parties in similar cases, it is said: “ To entitle a claimant to recover, the act requires that he should prove, by those who had the opportunity of observing his conduct, that he did not give assistance or encouragement to the insurrection. He must go further. His evidence to that effect must cover the entire period, of the war, so that it shall appear that he never gave any aid or comfort to the rebellion.” This requirement is that of the statute, and we see no reason for modifying the ruling so well stated. Without such proof we cannot restore the proceeds of captured and abandoned property. Congress had the right to declare the terms and conditions upon which this should be done, and, having exercised the right, all who seek the benefits of the law must conform to its demands.

Except the testimony of claimants, which is given in a loose and general manner, there is no satisfactory proof that they did not at some time within the progress of the rebellion give to it aid or comfort. The unsupported assertions of claimants to this essential fact does not prevail on the court. We require disinterested testimony stating facts from which conclusions may be drawn. Interest might persuade a claimant that his intentions were good, and if he is permitted to interpret his own actions he might consider himself innocent, when we would think otherwise.

There is no hardship in requiring of claimants, in respect to so marked an event as the rebellion, that they should show by others than themselves that they were at least blameless as to supporting and encouraging it. The testimony of claimants is not convincing, and leaves too much to doubt and conjecture.

Egan says of Donnelly that he has known him since 1859, and that they entered into copartnership in January, 1863; that he knew that both were in all respects loyal to the United States government during the late rebellion, and that neither of them 'gave aid or comfort to it. He (loes not state how he knows these facts about Donnelly, except froth frequent conversations with him. Ho could not speak otherwise than from hearsay as to the c mduct of Donnelly until after January 1863. They did not reside in the same place, and it does not appear that'they were often together. If we recur to the testimony of Donnelly, we have reason to believe that they were separated most of the time from 1859 to 1863. Donnelly says he was “in Wilmington off and on ” during the rebellion, but did not go there to reside or engage in business until 1863. He had resided previously “ in Savannah, Charleston, Augusta, Petersburg, &e.” That Egan resided nearly, if not all the time, in Wilmington; but'in the same breath he says he thinks Egan first went to Wilmington to reside in 1863, and that he met him casually only. Donnelly says of himself that he was constantly moving about engaged in speculation. That when the rebellion broke out in 1861 he was engaged in general speculation, residing in Savannah, which was his regular place of business.

In another part of his deposition Donnelly says, “ After the rebellion broke out I followed the army (confederate) doing a general trading business.” These inconsistent statements show that he could not well have known what Egan was saying and doing prior to 1863 about the rebellion. Neither of these parties declare expressly that they were together for any length of time until after their partnership commenced. How then can either testify correctly as to the other from personal knowledge previous to that time ? Nor does any other witness speak of his own knowledge of the conduct of Donnelly and Egan anterior to this time. What little is said of the loyalty of claimants has reference to a subsequent period.

We do not require affirmative proof as to each day and hour of the life of a claimant during the rebellion, but he must show what his conduct was in reference to months and years. This record is deficient in proof, and does not satisfy us that the claimants are within the conditions required by the statute.

One witness, Edward I. Egan, states that he has known both claimants since 1861; how long since he does not state. He says, also, that he was very intimate with the claimants during the rebellion. This witness of course does not mean during the entire rebellion, as his acquaintance with claimants commenced since 1861. The battle of Bull Run was fought in July, 1861, and the rebellion was flagrant and had been extensively aided and encouraged months before then. It is to be hoped that the words since and during in these dep-osifcions were not used because they admit of a double interpretation, and with a design to convey a wrong impression.

The intimacy of witness with claimants may have existed as he alleges, but he does not state that he lived near either of them, until subsequent to 1863, after they commenced business in Wilmington. It is therefore difficult to understand how this witness can say that neither of these claimants gave aid or comfort to the rebellion “ during its continuance.” Other witnesses give favorable testimony as to the loyalty of claimants after 1863; they only give their impressions and conclusions, but do not state facts. Not one of the witnesses who resided at Wilmington has a word to say in support of his own loyalty, and the presumption is that they could not commend themselves in this respect or they would have done so. They seem willing to express their opinions in a qualified way that claimants were loyal; but omit to show that they have experience or qualifications to enable them to pronounce authoritatively upon the question.

The counsel for claimants seems to rely with confidence upon the assumed fact, that because the names of these claimants were upon a list of individuals who were obnoxious to some rebel general, that they were therefore loyal. The list upon which he relies is not in proof. A witness states that he had seen the list and that he had the original in his hands, and that he handed it over to General Hawley. If the claimants placed any reliance upon the evidence furnished by such a list, they should have produced it, or shown some good reason why it is not in the record.

Claimants, as they say, were transacting a large business at Wilmington from 1863 to 1865, and it is matter of surprise to us that no word is in this record in reference to the blockade. It might be supposed that the attention of the representatives of the defendants would have been directed to some inquiry into the conduct of claimants connected with that subject; but it appears to have been neglected. It may be that the claimants are innocent of any infraction of the laws regulating commerce; if so, we should like to know it by satisfactory proof.

If these claimants are unsuccessful in their efforts to recover the eighty-nine thousand dollars demanded by them, it is not because of any diligence on the part of those representing the United States.

We think this petition should be dismissed, and it is so ordered.  