
    John A. Kline, Administator of V. F. Wilson, v. The United States.
    
      On the Proofs.
    
      Wilson, a resident of Vicksburg during the war of the rebellion, and a man of wealth, in 1862 brings to Vicksburg nearly six hundred bales of cotton, the greater part having the plantation marks where it was purchased, and all stored in Ids otm 
      
      warehouse in Vielcsburg. When the Union forces approach Vielcsburg, the Confederate authorities of the place eanse the cotton to be forcibly seized and talcen from his ivarehouse without Ms consent and placed in the defences of the toum. Upon the capture of the town all the cotton found in the rebel defences is gathered up by the military authorities, .shipped to the Treasury agent at St. Louis, Missouri, sold, and the net proceeds paid into the Treasury. The cotton so shipped and sold ineludes five hundred and sixty bales belonging to Wilson. Wilson never voluntarily gives aid or comfort to the rebellion or to persons engaged therein, and adheres consistently to the government of the United States. Kline, his administrator, at various times does commit acts, voluntarily, lending to give aid and comfort to the rebellion. There is no proof touching the loyalty of the distributees of the estate of Wilson except that most of them were minors during the rebellion and some of them infants of tenderyears. The persons from whom the eoiton was derived were voluntary residents in the insurrectionary territory.
    
    I. Tlie seizure of cotton by the so-called Confederate authorities, though actually received by them into possession and converted to their use, does not divest á loyal owner of his title to the same, and when captured hy the United States the title is not thereby vested in the United States as captors of the property of the so-called “ Confederate States.”
    II. Property of a loyal owner seized by the military authorities of tho insur-rectionary States and actually used for waging- war against the United States does not come within tho exception contained in the proviso of the first section of the “Abandoned or captured property act,” (12 Stat. L., p. 820,) which proviso is, “ That sueh property shall not include any land or description which has been used, or which was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance, ships, steamboats or other water-d'aft, and the furniture, forage military supplies or munitions of war.”
    
    III. There being no proof of tho loyalty of the distributees of an estate of an intestate who was loyal, the administrator is not thereby barred from a recovery under the “Abandoned or captured property act,” (12 Stat. L., p. 820.)
    TV. An administrator, guilty of acts of aid and comfort to the rebellion, is not thereby debarred from xn-osecuting a suit in the Court of Claims under the “Abandoned or captured property act,” (12 Stat. L., p. 820,) for the benefit of the distributees of an estate of a loyal intestate.
    
      Messrs. T. I). Lincoln, T. W. Bartley and Ii. M. Oorwine for the claimant:
    Ownership of the cotton is required to he proven “ to the satisfaction of the court.” We adopt the construction given to this provision of the act of Congress in Bond v. The United States, (2 C. Cls. B., p. 532,) where it is said: “ The evidence of the ownership of the property required is, at least, equal to-that necessary to sustain an action of trespass or trover. The ownership must be a bona fide one, not collusive, or colorable ,” &c.
    It is a familiar principle that the possession of personal property under an undisputed claim of right is always prima facie evidence of ownership. Webb v. Fox, 7. Ter. B., 397; Philip on Evidence, vol. 1, (with Oowan and Hills and Edwards’ notes,) pp. 646, 647.
    Even in regard to realty a plaintiff in ejectment may recover on prior possession. 3 Mann, and Byle, 111; Moore and Payne, 181; 3d Oarr and Payne, 610; Bay v. Alverson, 9 Wend., 223.
    In trespass, as to personal property, the plaintiff is allowed to recover on possession under a bona fide claim of title. 13 Johns. B., 361, 378; so also in trover, Rowe v. Brenton, 8 Barnw. and Cress., 737 ; Jinlchour v. Gear, 3 N. H. B., 404; Bimcan v. Spear, 11 Wend., 54; Baniels v. Ball, 15 Wend., 57, and note.
    The presumption derivable from possession under a claim of ownership is that the possessor owns absolutely; but this may be rebutted by other apposite evidence. Jayne v. Brice, 5 Taunt., 326; per Savage, C. J., in Livingston v. The Bern Iron Company; 9 Wend., 520, 521; 9 Wend., 50, 53; 9 Wheat., 59 ; 4 East. B., 130; Starkie on Evidence, vol. 1, p. 1488.
    But in this case we have not only proof of possession under claim of ownership but also proof of Wilson’s purchase of the chief part of this cotton from the planters in Louisiana who raised it.
    To the argument in the defence that Wilson’s title to the cotton was divested by the capture or seizure by the rebels we reply:
    1. That the seizure was not a capture in war, for it was not a talcing from a belligerent, or an auxiliary of the adversary belligerent party, but from a citizen living within the dominion of the rebel military power at the time, and who, although in sympathy with the Federal cause, ivas not in a possible condition at the time to be allied or connected in any way with it as a belligerent.
    2. Although a seizure by military force, it was not that kind of a seizure which by the lex belli, passes or divests the right of property from the lawful owner.
    3. This very cotton in question was actually collected and received and sold under the authority of this law as abandoned or captured property, and its net proceeds are now held by the Treasury Department under the acknowledged authority of this law. The military officers at "Vicksburg, at the time, did not claim to hold this cotton by any right of property which had been vested in the rebel authorities and captured from them.
    
      The identity of the cotton is as fairly and clearly established as the nature of the case would admit.
    Adopting the test which this court has laid down on the question of loyalty, we say that it is shown by the testimony in the case that Victor F. Wilson did not "voluntarily aid, abet, or give encouragement to the rebellion agmnst the government” of the United States. Sec. 12 of the act of Congress of March 3,1863.
    His loyalty is established by a long train of circumstances, the general tenor of his conduct and his general character, preceding and during the rebellion, as follows:
    1; His violent opposition to secession and the rebellion, and his attachment to the Union previous to the war, and for some short time after its commencement, is a conceded point, and established even by the testimony in the defence.
    2. Before the rebellion and after its commencement, and until freedom of speech became unsafe, he denounced the leaders in the secession movement, and declared that the rebellion would bring ruin upon the country, and threw the weight of his opinion and character against it; and from the beginning to the end, showed an utter want of confidence in the success of the rebellion.
    3. He was instrumental in keeping .men out of the rebel army by his private advice and influence.
    4. Wilson assisted persons to get out of the Confederate army.
    5. Wilson’s extensive and peculiar business interests and connections, and his large investments in property which could not be readily sold or removed, required his presence and attention, and he could not have removed to the northern States without sacrificing his entire fortune and impoverishing his family.
    6. When the war first broke out he owned three steamboats, one named Ike Hammett, one Victor F. Wilson, and the third, Capitol. The two first he sent north at the beginning of the war, and they were engaged in the Federal naval service until the surrender of Vicksburg-, after wbicb they were returned to Mm. He used the Capitol for towing ice barges out of the Illinois river; but in the spring of 1861 he sent that boat north, but she was seized, on her way by the Confederates, and sent up the Yazoo Eiver, where she was afterwards sunk.
    7. He was largely indebted at Pittsburg, Pennsylvania, which he could not pay in the Confederate currency. He conceived the idea of procuring and storing away cotton to send north for the payment of his debts when the Federal army should succeed in opening the free navigation of the Mississippi Eiver. Hence he procured, stored away, and endeavored to conceal fi-om the rebels this cotton, which they afterwards seized by force and took from him.
    8. Shortly after Mr. Lincoln’s “proclamation of emancipation,” he treated his slaves as free, told them that they were free, and advised them to take care of themselves and keep out of the rebel army. At the same time he gave them money, or paid them wages, and had a care over them.
    9. During the war he acted with, the northern and Union men in the south, and his sympathies were manifestly with the cause of the Union.
    10. Immediately after the surrender of Vicksburg he sent to Memphis for a permit that he might bring out the cotton in question and abandon it to the United States, under the law of March 12,1863.
    11. After the surrender of Vicksburg his property was seized upon the representations of Strong and others, who had a grudge against him, and condemned upon their evidence. Upon a full hearing by a court ordered by General McPherson, they found him loyal, and his property was restored to him by the order of General McPherson.
    12. He was appointed a judge of the court by General McPherson immediately after the surrender of Vicksburg, and acted as such with two of the officers of the Federal army.
    13. When this court was dissolved he was appointed collector of the port of Vicksburg, took the necessary oaths, and gave bond as such collector.
    14. He took the oath under Mr. Lincoln’s amnesty proclamation of the 8th December, 1863, more than a year before the war closed, and at a time when the prospects of its successful close were not very brilliant. It is shown that he took this oath not because be bad ever done anything requiring it, but as another evidence of bis entire accord with the policy of the United States government.
    15. It is shown that though rebel flags were common over the houses of prominent citizens of Vicksburg, none ever floated over his house.
    
      Mr. B. S. Rale, special counsel of the Treasury, for the defendants:
    I. The cotton in question having been seized by the Confederate authorities, and actually reduced to possession by them many days before the capture of Vicksburg; having been placed in the fortifications as a part of the same, and thereby converted to their own use and to military purposes, the title of Victor F. Wilson to the same was terminated, and upon its recapture he could, by the laws of war, make no reclamation, the title then vesting absolutely in the captors.
    Halleclds International Law, p. 451, ch. 19, § 7, and authorities there cited; id., pp. 462,463, §§ 19 and 20; id., ch. 35, § 7, p. 870; Wheaton, Int. Law, p. 630.
    And whatever may be held as to the rights of the Confederate government, as a government de facto, in regard to the powers of a government relating to questions of peaceful authority, there can be no question that at the time of the siege of Vicksburg they occupied the position of a power with belligerent rights.
    They were so recognized by all departments of the government, executive, legislative, and judicial, and by all the civil and military authorities of the United States and by foreign nations.
    The Supreme Court in the prize cases distinctly recognized and established this character.
    II. The cotton in question having been actually used in the waging and carrying on war against the United States, comes within the exception contained in the proviso to the first section of the captured and abandoned property act of the 12th March, 1863. Its proceeds cannot, therefore, be claimed, under the third section of the act, in this court. (Gearing v. The United States, 3 C. Cls. R., 165,167.)
    III. The cotton in question was purchased by Wilson in the fall of 1862. No proof is given of the loyalty of the parties from whom the same was purchased. Under the statute of the 17th of July, 1862, section sis, and the proclamation of the President of the 25th July, 1862, any transfer from a person guilty of complicity with the rebellion after September 23,1862, is void j and under the act of the 25th of June, 1868, section three, the burden of proof as to the loyalty of such prior owner is upon the claimant. In the absence of such proof claimant cannot recover.
    IY. Wilson voluntarily brought the cotton into the city of Yicksburg while occupied as a fortified town by the military forces of the rebels. He voluntarily marked it with the sign of ownership of the rebel government, “O. S. A.;” and this, as he himself alleged, in order that it could be shipped in the transports or public vessels of the rebels. A portion of it was from time to time taken by the rebels, as they had occasion for it for hospital use. And this taking appears to have been with the assent, or at least without the objection of Wilson.
    Y. The evidence that the whole, or even the bidk of the cotton in question, came to the hands of the Federal quartermasters, and its proceeds reached the Treasury, is entirely insufficient.
    YI. No proof is made of the loyalty of the distributees of the estate of Yictor F. Wilson, for whose benefit this action is brought. It is submitted that no recovery can be had without such proof.
    YII. The loyalty of the claimant, John A. Klein, is abundantly disproved. In addition to all the other evidence of acts and expressions inconsistent with his true allegiance to the United States, there is positive and uncontradicted evidence that he voluntarily furnished his son, on entering the rebel army, with a horse, saddle, bridle, clothing, money, and a servant.
    YIII. The loyalty of Yictor F. Wilson, the claimant’s intestate, is also fully disproved.
    It clearly appears that Wilson, though originally opposed to secession, remained at Yicksburg, carrying on his ordinary business, and maintaining his intimate relations, social and business, with the rebels about him, and preserving their confidence to an extent which no loyal man could have done. He was a man of great wealth and extensive business connections; and it is contrary to all experience of the war that such a man could have retained the position he did and retained the confi-úence of the rebel authorities and citizens as he did, while still preserving his allegiance to the Union, and abstaining from giving aid and comfort to the rebellion.
   Casey, Ch. J.,

delivered the opinion of the court:

This is a claim preferred by the administrator of Victor F. Wilson, deceased, to recover from the United States the proceeds of over six hundred bales of upland cotton; and from the evidence and proofs in the case, we find the following facts:

1. Victor F. Wilson was a man' of northern birth, who removed to Vicksburg in the year 1849. He continued to reside there during the entire period of the war of the rebellion, and up to the time of his death. He was largely engaged in the ice and coal trade for that region, and had amassed a considerable fortune.

2. In the fall of 1862 he had brought to Vicksburg nearly six hundred bales of cotton and stored in a warehouse belonging to himself. The bales of this cotton were marked, some “Ion plantation — I. James,” others “T. Coon,” and others “Elliott,” and all these bales were also marked “0. S. A.” These latter were the letters or initials used to designate the cotton belonging to the so-called Confederate States of America. The claimant’s intestate alleged at the time that it had been so marked by him to procure transportation, and to protect it in transit. This same cotton remained in the possession of Wilson, he claiming it as his own, and in his own storehouse, no one making any adverse claim to it; and this claim by him, and the unchallenged possession proved, was the only evidence of ownership, there being no evidence in the record of its actual purchase from, or the payment of any consideration to the original owners.

3. When the Union army under General Grant was besieging Vicksburg, the insurgent military authorities commanding at that place caused this cotton to be forcibly seized and taken from Wilson’s warehouse, and without his consent placed the same in the forts and various defences of the town, to protect it against the assaults of the Union army, and where it was upon the capture of the town by the Union forces.

4. After the capture of Vicksburg, all the cotton found in the rebel fortifications was gathered up by the military authorities of tbe United States and pnt into proper condition, and shipped to William P. Mellen, a duly authorized agent of the Treasury Department, at St. Louis, Missouri. And we find that the cotton so gathered and shipped included five hundred and sixty bales which had belonged to Victor F. Wilson, the claimant’s ■ intestate, and this cotton was afterwards sold by Mr. Mellen, and the net proceeds of the same, after deducting all expenses, amount to the sum of $125,300. These proceeds are now in the Treasury of the United States, and to recover them this claim is preferred.

5. We find that Victor F. Wilson, the claimant’s intestate, never gave any voluntary aid or comfort to the rebellion, or to the persons engaged therein, but did consistently adhere to the United States.

6. We further find that John A. Klein, who prosecutes this suit as administrator of Victor F. Wilson, deceased, at various times during the existence of the rebellion committed acts voluntarily tending to give aid and comfort to the rebellion and to the persons engaged therein, and did not at all times consistently adhere to the United States.

7. There is no proof in the record showing whether the dis-tributees of the estate of Victor F. Wilson, deceased, are or were loyal or disloyal; except that most of them were minors, and some of them infants of tender years.

8. The persons from whom the cotton was derived were voluntary residents in the insurrectionary'territory.

The special counsel for the United States contends that upon the facts and findings in this case, the claimant cannot recover:

1. Because the cotton, the proceeds of which are claimed, had been seized or captured by the so-called Confederate authorities, aud actually reduced by them into possession, and converted to their own use; that the title of Wilson was thereby divested, and that it was not revested in him by the recapture; but that its capture under the circumstances vested it absolutely in the United States, as captors of the property of the so-called Confederate States of America.

2. That the property, the proceeds of which are in question in this case, having been actually used by the insurgents for waging and carrying on war against the United • States, comes within the exception contained in the proviso to the first section of the "Abandoned or captured property act” of March 12,1863; and that, therefore, no suit can be maintained for them, in this court.

3. That the cotton, the proceeds of which are claimed in this case, having been purchased by Wilson from disloyal owners after the 23d September, 1862, he could derive no title to it; that by virtue of the act 17th July, 1862, and the President’s proclamation thereon of the 25th July, 1862, it was absolutely forfeited to the United States, and’that the attempted sale and transfer to Wilson was absolutely null and void, and there can consequently be no recovery in this case.

4. That Wilson having voluntarily brought his cotton within a fortified town held by the insurgents, their seizure and use of it to strengthen the defences of the place against the assaults of the United States forces, is to be deemed and taken as an assent or dedication of it to such use by Wilson, and it was thereby upon the capture of the place absolutely vested in and forfeited to the United States.

5. That there being no proof of the loyalty of the distributees of the estate of Yictor F. Wilson, deceased, for whose use this suit is prosecuted, the claimant cannot recover.

6. That John A. Klein, the administrator of Victor F. Wilson, deceased, having been guilty of acts of aid and comfort to the rebellion, no judgment can be rendered in his favor for the proceeds of the cotton in question.

7. That upon all the facts of the case, the United States are entitled to judgment.

We overrule the objections to the claimant’s recovery, and upon the facts stated, we hold, as matter of law, that the claimant is entitled to recover the net proceeds of five hundred and sixty bales of upland cotton, at the sum of two hundred and twenty-three dollars and seventy-five cents per bale, and amounting to the sum of one hundred and twenty-five thousand three hundred dollars, ($125,300,) and for this sum judgment is entered in favor of the claimant, as administrator.  