
    SCHREINER AND SON’S CASE. John C. Schreiner et al. v. The United States.
    
      On the Proofs.
    
    
      _J. business firm in Savannah, consisting of three partners, buys eotton during the rebellion. Subsequently the cotton is captured. Only one member of the firm, it appears, gave aid or comfort to the rebellion.
    
    
      If one member of a business firm within the insurrectionary districts give aid or comfort to the rebellion, it defeats a recovery as to all of the firm in an action under the Abandoned or captured property aet; for the court-cannot sever the copartners, nor ascertain their individual interests.
    
      Mr. F. F. Stanton and Mr. A. S. Meguire for the claimants:
    Of tbe three claimants, H. L. Schreiner is a citizen of the United States; the other two are neutral aliens and subjects of the Duke of Saxe-Coburg-Gotlia, of the North German Confederation.
    The .suit is brought for the recovery of the net proceeds of forty-three bales of cotton, which were seized by the military authorities of the United States, under General Sherman, during the month of February, 18G5, at Savannah, in the State of Georgia, and shipped from thence to the cotton Jtgent of the-Treasury Department at New York City, and by him sold, and the proceeds thereof paid into the Treasury of the United States.
    The right of property is abundantly proved. The reply of the War Department shows that forty-three bales of cotton were taken, and forty-one of them shipped on the bark Atlanta in the name of J. 0. Schreiner.
    The forty-three bales of cotton were taken from the store of the claimants as their. property, on the 21st and 23d of February, 1805.
    The witness Henderson proves the delivery of the cotton to Thomasson from the store of the claimants at the corner of' Congress and St. Julien streets, the same place mentioned in the report from the War Department. This identifies the cotton fully, and renders unimportant the discrepancy as to the marks on the bales.
    By the returns of the Secretary of the Treasury of sales of' the Charleston, Savannah, and Mobile cotton, on file in this court, it appears that the net value per bale of the Savannah cotton was $167 52. We claim the proceeds of forty-three bales, which amount to the sum of $7,203 36. For this sum we ask judgment under the third section, of the act of Congress approved March 12, 1863.
    John C. Schreiner, the father, and S. A. Schreiner, one of the-sons, were not naturalized. The proof of their entire neutrality in the war is beyond all question. It goes further; it shows that they were both favorable to the cause of the Union and against that of the confederacy.
    S. A. Schreiner had been conscripted into the Confederate army, but he evaded the service, left the Confederacy, and went to Hew York, where he remained-until the termination of the war. While in New York his sentiments were those of a Union man. There is no conflicting testimony as to these two of the claimants.
    Hermann L. Schreiner was a naturalized citizen of the United States. He remained in Savannah during the war, and kept a store for the sale of music and musical instruments. It appears from all the testimony that he was a strong Union man in sentiment.
    W. G. Eugelke testifies that he was intimately acquainted with the three claimants; that they were against secession from the beginning; that their reputation among their acquaintances was that of Union men; that Hermann Schreiner formed a German volunteer company during the early part of the war, but when the company were ordered into service he refused to go, and that after his refusal the members of his company favorable to the war threatened to shoot him for not going.
    This testimony would seem to be very full and satisfactory. But there is an attempt to answer it by proving that the house of John 0. Schreiner & Sons republished dúring the Avar certain pieces of music calculated to encourage the rebellion. All the testimony on this point is contained in the depositions of Vincent Czurda. and G. S. Obeus, taken on the part of the •United States. The latter witness states that J. 0. Schreiner sold such military goods as drums and buttons; but this is contradicted by the testimony of Czurda, wdiere this ivitness says the merchandise consisted of “music, fancy soaps, perfumes, and toilet articles; there were no military buttons, nor lace, nor caxis, nor other articles used in the manufacture of military clothes.” He does not mention drums; but it is hardly possiblé that these could haATe been brought into the Confederacy, through the Union lines.
    But in addition to the proof of loyalty hereinbefore referred to, there is a certified copy from the Secretary of State of the amnesty oath taken by Hermann L. Schreiner, September 27, 1865, and Avkich, according to the decision of the Supreme Court of the United States in the case of The United States v. 
      Padelford (9 Wallace, 531, 543) is conclusive as to tbe proof of loyalty.
    Jolin C. and S. A. Schreiner, being subjects of the North German Confederation, are entitled under the law to sue in this court.. This question was decided in the case of Ferdinand Brown v. United States, (5 C. Cls. B.., p. 571.)
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants.
   Loring-, J.,

delivered the opinion of the court:

The petitioners, a mercantile firm in Savannah, claim of the United States the net proceeds of forty-three bales of upland cotton.

The fact found, that the loyalty of Hermann L. Schreiner is not proved, prevents a judgment in his favor or in which he could take a legal interest. And we cannot sever his copart-ners from him without ascertaining their individual interests. And to do this the business of the firm must be closed, its assets collected, its debts paid, and the residuum of property ascertained and reduced to cash. And then there would be required a settlement of the account of each partner with the firm, to ascertain his interest in this residuum, and to determine whether he was creditor or debtor. We have not the means for all this, nor the power of enforcing it.

Pecic, J., did not take any part in this decision.

Nott, J.,

dissenting:

I think the loyal partner who escaped to New York entitled to recover one-third of the proceeds of the captured property, upon the ground that the partnership was then dissolved, and that the United States by capture severed the interests of the partners in the partnership effects, succeeding to the rights of the disloyal, and holding the proceeds for the benefit of the loyal. <  