
    John A. Hudnal v. The United States.
    
      On the Proofs.
    
    
      A citizen of northern birth, living in Texas at the beginning of the rebellion, abandons his business and leaves the State, rather than take an oath of allegiance to the confederacy. An agent subsequently collects debts in cotton and sends it into the United States lines at Brownsville. It is seized by the military and sent to New Orleans. There the quartermaster sells it and uses the proceeds for military purposes. The Secretary of the Treasury informs the Senate that the quartermaster’s accounts are under examination, and that the moneys received by him from abandoned or captured property will be credited to that fund.
    
    I. The fact that a citizen, living in Texas, abandoned his business at the beginning of the rebellion, and went beyond the confederate lines to avoid taking an oath of allegiance to the confederate government, is satisfactory evidence of his loyalty under the “ Abandoned or captured property act," (12 Stat. L., p. 820,) he at the same time remaining within the United States lines till the end of the war.
    II. An action may be maintained and a decree rendered under the “ Abandoned or captured pioperly act," (12 Stat. L., p. 820,) when the Lt net proceeds” are constructively in the treasury, though not appearing in that fund; as where a quartermaster has expended them in the military service and his accounts are under examination in the Treasury Department, the quartermaster’s department not having been yet charged with the moneys expended, nor the 11 Abandoned property fund” credited with the amount received.
    'Messrs. Cooley and Clarice for claimant:
    The claimant seeks to recover the proceeds of 186 bales of cotton, which were seized by the United States forces at or near Brownsville, Texas, shipped to New Orleans and sold, and the proceeds of which have been paid into the treasury of the United States.
    Under the decision of this court, in the case of Margaret Bond v. The United States, the claimant, to recover, must prove—
    1. That he is the owner of the property seized.
    2. That he is entitled to the proceeds.
    
      3. That he has never given any aid or comfort to the recent rebellion.
    The claimant’s account of the manner in which he got the cotton, the seizure, shipment, and sale of it, is simple and convincing.
    He says :
    “I left Galveston about the 1st of May, 1861, on account of the order having been issued that those that would not take the oath to the confederate government, and enter the service, must leave the country.”
    “ There were men owing me all through the country, in Texas, and, before going to Mexico, I made arrangements with William Lake, a resident of Marlin, Texas, to' receive this cotton for debts owing me from him and others, delivered there, at Marlin, Texas. I had it delivered there because it wasthe'nearest point to the planters in the country. This cotton was so delivered to me and John Finley, the man whom I had employed to haul the cotton, in June, 1861. This cotton was stored in the warehouse of Mr. J ohn Bush. The cotton was not marked at the time, having come direct from the diiferent plantations. On receiving the cotton, getting the weights, 1 instructed Mr. Bush to put the planters’ initials on each bale. I received 186 bales, averaging 500 pounds per bale, thus delivered to me at Marlin.”
    He then employed John Finley to haul the cotton to Brownsville, but, by reason of the rebels having pressed his teams, he could not do it at that time, “ and the cotton remained at Marlin, from that time, in the warehouse, till August, 1863, when Mr. Finley moved it to Corpus Ohristi, where he had wagons to take it from there to Brownsville. During the month of November, when within about sixty miles of Brownsville, he was arrested by the pickets of the Union forces, with this cotton. I was advised of the seizure of my cotton before it reached Brownsville, when I applied to General Dana for an order to release my cotton; he, through W. B. Leech, his aide-de-camp, gave me án order to Captain Owen, quartermaster, who then had the cotton in his charge, to pile my cotton by itself, and the order was delivered by J ohn Finley ; I went myself, and saw and recognized the cotton, and saw it in a pile by itself; it was piled near the water at Point Isabel ; this was in the latter part of November; before this order had been delivered, the cotton had been removed from Brownsville to Point Isabel.”
    Failing to get his cotton released, the claimant proceeded to New Orleans on the same vessel (the steamer Clinton) which conveyed his cotton, and there saw it sold, in a lot of 404 bales sent from Brownsville (also on the same vessel) to Captain Jacob Mahler, assistant quartermaster.
    In an affidavit (pp. 6, 7) of John Finley, (since deceased,) which is made an exhibit to claimant’s first deposition, he says he was hauling from Corpus Christi, for claimant, 115 bales on one-train and 55 on another, when the same was seized by United -States troops near Brownsville, and taken, the former to Brownsville and the latter to Point Isabel. He also says his attention was called to 16 other bales, which he recognized as the property of Mr. Hudnal.
    William Lake, who received the cotton for Mr. Hudnal at Marlin, testified (p. 8) that there were “186 hales or a little over.”
    At page 38 of H. B,. Ex. Doc. 97, 2d Ses. 39th Congress, there is a statement of cotton sold by S. B. Holabird, assistant quartermaster, December 24 and 25, 1863, being 404 hales, the exact number, and was the same that Mir. Hudnal saw sold, and of which his cotton was a part. The average net proceeds were about $258 58 per hale.
    The total amount realized from sales of cotton by Colonel Holabird was $834,529 34; and the correspondence with regard to this shows that “ this amount was used in the quartermasters’ department, as if belonging to the regular funds of that appropriation.”
    Having shown the ownership of the property, and traced the proceeds into the treasury, it only remains to show that the claimant “has never given any aid or comfort to the recent rebellion.”
    We have seen that he left Texas rather than take any oath of allegiance to the confederacy, and he says:
    ‘.‘After leaving Houston I went to Matamoras, Mexico. I have always been loyal to the United States government, and have never given aid or comfort to the rebellion in any way.”
    After hjs cotton was sold he was employed to command a Union transport, and in 1865, until the end of the war, commanded a flag-of-truce boat.
    The whole testimony and history of this case shows that the elaim-ant.is a plain, honest man, who has been trying to save a large family from want, and do his duty as a citizen. His fortune and his future are in the hands of this, court, and we only ask (what we know we will get) a careful consideration and a fair decision.
    The Assistant SolicitoR for the defendants.
   Casey, C. J.,

delivered the opinion of the court:

Prior to the year 1858, the claimant was a citizen of the State of Indiana, and from there he removed to Galveston, in the State of Texas. There he was residing in 1861, when the rebellion broke out. He was engaged in merchandising, doing a general commission business and dealing in cotton. About the first of May, 1861, a military order was issued, requiring every person to either enter the military service of the confederacy, take an oath to support the confederate government, or leave the country. He chose the latter. Making hasty arrangements in reference to his business affairs he left Galveston about the 10th of May. He'employed a man by the name of William Lake to receive cotton for him from various persons in payment of debts they owed him; and engaged John Finley to haul what cotton Lake might receive for him to Brownsville. Under this arrangement Lake received altogether for the claimant 186 bales of upland cotton. Finley’s teams, however, in the mean time were impressed by the rebel authorities, and he was consequently unable to move the cotton until August, 1863, when he took it to Corpus Christi, where, in November following, he had it loaded on teams and started for Brownsville. When within about 60 miles of the latter place he was arrested by the pickets of the Union army, then in possession of the country, the teams were taken to Brownsville, and from there sent with the cotton to Point Isabel. The cotton was seized by the Union forces and shipped to New Orleans, to the quartermaster at that place, and on the 26th or 27th of December, 1863, it was sold by him at auction, in connection with other lots, to the number of 404 bales, and at the sum of $104,467'96 after deducting expenses of transportation and sale. This makes an average of $258 58 per bale net proceeds.

The ownership of Mr. Hudnall is proved very satisfactorily to the extent of 170 bales. It is very clearly and distinctly proved that he owned, and Mr. Lake had in possession for him at Marlin, 186 bales, and probably delivered that number to Mr. Finley, the teamster, who was to transport them to Brownsville. But the testimony does not satisfy us that more than 170 were delivered by Finley of claimant’s cotton to the officer of the United States at Point Isabel, or that more than that quantity was received and sold by the quartermaster, Colonel Holabird, at New Orleans.

An objection was made on the argument to the recovery of the claimant because Colonel Holabird sold the property, and, under the order of tbe general commanding tbe department, used tbe proceeds in providing for tbe wants of tbe army, and did not pay them over into tbe treasury of tbe United States, as tbe 2d section of tbe act of March 12, 1863, requires.

It is true that Colonel Holabird, like many other quartermasters, .'either overlooked or entirely disregarded tbe provisions of that law. By tbe 6th section, it was made bis duty, when that cotton was shipped to him, to have promptly turned it over to a treasury agent, whose official duty it was to take charge of or dispose of it, and pay tbe net 'proceeds into tbe treasury; and for his failure or neglect so to turn it over be was guilty of a military offence, liable to be court-martialed, reduced to the ranks, or suffer such other punishment as tbe court-martial might have ordered. And in undertaking to keep charge of tbe cotton and sell it, in violation of a plain and positive statute, he was not only not acting within tbe scope of bis duties and his powers, but in direct opposition to both, as defined by a clear and distinct congressional enactment. Had be embezzled the proceeds, or they bad been lost by capture of the enemy or by robbery or otherwise, it is questionable whether tbe United States would have been liable for them to loyal claimants in any way or manner whatever.

We are, however, fortunately relieved from tbe necessity of considering or deciding any such question in tbe present case, by tbe fact that, so far as appears, Colonel Holabird has honestly and fully accounted for all tbe proceeds of the property sold by him. His action has been recognized and adopted by the executive government and its various departments, to whom the enforcement and administration of these laws were committed. His accounts and returns on the subject made to the War Department were examined and approved. They have been submitted to the accounting bureaus of the Treasury Department and fully settled and adjusted, and the net amount of the sales turned over to the captured and abandoned property fund. The following letter of the Secretary of the Treasury, in answer to a resolution of the United States Senate of the 29th November, 1867, fully explains how the matter stood then:

“Treasury Department, November 30, 1867.
“ Sir: In reply to a resolution of the Senate of the United States of the 29th ultimo, calling on me to inform the Senate, at my earliest convenience, whether a sum of $834,529 34, which appears from House of Representatives Ex. Doc. No. 97, second session 39th Congress, page 38, to have been received by Colonel S. B. Holabird, assistant quartermaster, chief quartermaster-of the department of the Gulf, up to February, 1865, as the net proceeds of captured and abandoned property, and to have been used in the quartermasters’ department as if belonging to the regular funds of that department, by direction of the major general then commanding the department of the Gulf, ‘has been credited to the account of captured and abandoned property in the treasury of the United States, and is included in the net sum realized from such property, as shown in said report; and whether the said sum of money has been charged to the account of the-quartermasters’ department; and if not so charged to the quartermasters’ department, what legislation is necessary to effect that object.’ I have the honor to state that the exhibit referred to, appearing in the Ex. Doc. No. 97, second session 39th Congress, shows the result of a preliminary examination of Colonel Holabird’s accounts by the quartermasters’ department; that in the regular routine of official business they have been under examination for about a year last past in the office of the Third Auditor, which examination will probably he completed during the next two months; that whatever amount shall thereupon be ascertained to have accrued from the sale of captured and abandoned property, and to have been used for expenses of the quartermasters’ department, will then be transferred, by executive action already authorized by law, upon the statement of the Third Auditor, to the fund to which it belongs, and be charged against the quarter-, masters’ department; and that no legislation is necessary to effect this object.
“ I have the honor to state further that such amount is not included in the total net sum shown by the report referred to to have been thus far realized from captured and abandoned property.
“I have the honor to be your obedient servant,
“H. McCulloch,
Secretary of the Treasury.
“The President of the Senate of the United States."

This shows that the money is actually in the treasury of the United States, and that nothing remained at the date of this letter but to adjust the matter between the War and the Treasury Departments, so as to secure regularity and system in the accounts, and have each debited and credited with the matters pertaining to their respective operations. With this the claimant has nothing to do. For his purpose it is sufficient to show, that the government is in possession of the proceeds of his property, and that he is under the law entitled to those proceeds. As to how the different executive officers may or ought,to arrange their accounts and statements, cannot affect his rights; for as to him the government is but one.

We are all entirely satisfied that the claimant, has shown that he never gave aid or comfort to the rebellion. The man who leaves a prosperous business and a large real and personal estate to the chances of war, rather than give in his adhesion to a usurping government, gives strong evidence of his patriotism and fidelity to his country, and, next to him who volunteers to fight its battles, is entitled to its regard and protection.

Seven or eight witnesses, whose testimony is uncontradicted and unimpeached, and among them G-overnor A. J. Hamilton, of Texas, testify to the claimant’s fealty to the United States, his opposition to secession, and his freedom from any acts of aid or comfort to the rebellion. This brings him within the express provisions of the act of March 12, 1863, and entitles him to receive the residue of the proceeds of his property, after deducting expenses of sale, &e. We find the claimant entitled to 170 bales, and the net proceeds to he $258 58 per bale, amounting in the whole to the sum of $43,958 60; and this sum we accordingly award to him.  