
    CULLITON’S CASE. Nicholas Culliton v. The United States.
    
      On the Proofs.
    
      On a first trial, the court is satisfied of the claimant’s loyalty, but dismisses the^pelition on a question as to the ownership of captured property. A motion for a new trial is made and granted, (based on a reconstruction of the abandoned or captured property act,) and the case is restored to the doalcet. At the second trial it comes up on the same evidence as to loyalty, but on further proofs as to ownership. It appears that the claimant went with a militia company to Morris Island, but that shortly before the attach on Sumter he deserted, and when hostilities began refused to bear arms, remaining thenceforth loyal to the United States.
    
    I. Where a case has "been remanded to the docket for further evidence, either party is at liberty to take testimony, and on the second trial every fact found at the first is oiien to he controverted.
    II. The bombardment of Sumter was the beginning of the rebellion under the Proclamation, April 15th, 1861, and within the meaning of the Abandoned or captured property act, (12 Stat. L., p. 12; p. 820.) If from that event a citizen did faithfully and consistently adhere to the United States, his previous errors should not be deemed sufficient to attach to him the infamy of treason.
    
      Mr. Thomas Wilson and Wm. Penn Clarice for the claimant:
    This case is brought under the captured and abandoned property acts, for the recovery of'the proceeds of eleven bales of sea-island cotton, captured at Charleston, S. C.
    The canse has been once before the court, and decided by it adversely to the plaintiff. A rehearing was granted. The court in its former decision found, as matter of fact, the seizure of the cotton and loyalty of the plaintiff, but denied the good faith of the plaintiff in the imrehase of the cotton. The court finds—
    5th. “That the said cotton was sold by Claussen and bought by the claimant, to permit its coming into possession of the defendant, and without adequate consideration and in fraud of law.”
    To overborne this conclusion of fact, new testimony has been taken, and several matters are exhibited which will show the entire good faith on the part of the plaintiff, and an entire absence of any intent upon the part of any one connected with the transaction to prevent the United States from exercising its full rights in the matter.
    There are some things which bring conviction to the mind more than mere verbal testimony, even when delivered under the sanction of the most solemn oath. Such things are to be found in this case, and they will do more to satisfy the court of the good faith of these parties, and the absence of fraud in this transaction, than testimony from the mouths of many witnesses.
    1st. A debt from Claussen to Culliton was created by continuous labor during a period of time when the capture of Charleston was much more imminent (by the naval forces) than it was at the time of the settlement between them or the purchase of this cotton.
    2d. Neither Claussen nor Culliton knew aught of the proposal on the part of the United States to seize or sell cotton found in captured cities.
    3d. When the agreement was made by Culliton to take cotton for this debt, this cotton which he did take had not been purchased by Claussen.
    4th. If any necessity existed on the part of Claussen to dispose of this cotton to save himself, he could have avoided it by declining to purchase it.
    5th. If there had existed any intent to defraud the United States or evade the effect of any of its statutes, Claussen would, first,never have purchased these twenty-two bales; and, second, if purchased, would have sold all and not kept half.
    6th. Claussen was the owner not only of the other eleven bales of this lot not sold to Oulliton, but of 128 bales, in regard to which it is not pretended he sought to evade the effect of the statutes of the United States, nor avoid any of his responsibilities to the United States.
    7th. Claussen thought himself loyal to the United States, and sought to recover the proceeds of the cotton held by him. That he failed is no argument against him.
    The conclusion is irresistible. The sale was made in good faith on the part of both parties, in the usual course of business, and for a valid consideration.
    
      Mr. Robert 8. Sale, special counsel of the Treasury, for the defendants:
    The claim is for the proceeds of eleven bales-of sea-island cotton, captured at Charleston. The cause was heretofore tried, and judgment rendered for the defendants. Having been opened by him for the purpose of additional evidence, it is now resubmitted on the original and additional evidence.
    Claimant’s proof of loyalty is deficient.
    He was a member of an Irish volunteer company of the State of South Carolina, and in that capacity u went to Morris Island ” with the company at the attack on Fort Sumter, and participated in that assault. No proof whatever is made of any compulsion in regard to this service. The only proof on which the claimant relies to remove its effect as an act of disloyalty is, that he left the company at an early period.
    It is submitted .that the additional evidence does not strengthen Culliton’s ease as to the bona fides of his alleged purchase from Claussen.
    Olaussen’s testimony on the last examination is directly in conflict with his former testimony, and shows him unworthy of credence, especially in regard to the very transaction óf which he has given two such different accounts.
    
      In his original testimony, he says: “The cotton had belonged to me; he had some Confederate money he wished to invest, and asked me to invest-it for him; I bought a lot of cotton and divided it with him, giving him one-half and I taking the other half.”
    On his second examination, he says: “1 owed him on account' of his service about $20,000 in Confederate money. I turned this cotton over to him in payment of this indebtedness which I owed him. I asked him how I" should pay him his money; he and I had agreed upon the amount due him; the books showed the amount; he told me to invest the amount in cotton; m pursuance of that I bought cotton. On the 27th day of January, 18G5,1 bought 22 bales of sea-island cotton, and turned over one-half of it to him.”
    Claimant appears to be a foreigner, and no competent proof of naturalization is made.
   jñott, J.,

delivered the opinion of the court:

This is an action brought to recover the net proceeds of eleven bales of sea-island cotton, captured at Charleston, of the value of $5,433.

This case was the first in which the question of ownership was clearly considered by the court. On the former trial it was thought that where a party in a beleaguered city bought cotton after its capture had become imminent, he should prove a loyal title, or should at least show, from the facts and circumstances of the purchase, that it was not made with a fraudulent intent to deprive the government of a right of capture. Subsequently’, á different rule was laid down by a majority of the court in the case of Pollard, (4 C. Cls. R., p. 328,) which more recently has been affirmed by the Supreme Court. The claimant, moreover, now produces evidence showing that he bought the cotton in good faith. Therefore, the point on which the case formerly turned is no longer a question to be considered.

On the former trial a majority of the judges were satisfied as to the claimant’s loyalty. The case now comes back upon precisely' the same evidéuce as to loyalty upon which that question was before presented. Since then, however, the case has been upon the general docket, and either party' has been at liberty to offer further testimony'. The fact found in the former trial no longer remained when the former trial was set aside. The parties were not bound by it, and the court is equally free to reach a different result, though the testimony be identical. ■

This loyalty of the claimant is now strongly contested by the special counsel of the Treasury. So far as the legal aspect of the question is concerned, we are satisfied that from the time of the attack on Sumter to the end of the war, the claimant evaded military service, and consistently adhered to the United States. Before the attack, the testimony is not so clear. The claimant was a member of many years’ standing in a militia company, called the Irish Yolunteers. The company was called out one evening and sent to Morris Island. The claimant went with it. He left there within a few days, and was in Charleston at the time of the bombardment. When the Irish Yolunteers went into the Confederate service, he withdrew. As he then said, he “was sorry for it, but could not think of serving in the corps, now that it was called to act against the United States.” He claims that his going to Morris Island was under duress; that his leaving there was immediate; and that his action was grounded upon his faithful adherence to the United States.

We are inclined to think that under the Proclamation, April 15th, 1861, (12 Stat. L., p. 1258,) and within the meaning of the Abandoned or captured property act, the bombardment of Sumter was the beginning of the rebellion. It forms the dividing line between a supposed peaceful division of the territory of the republic and an actual warfare waged to compass its overthrow. Before hostilities began, many loyal persons, North as South, believed that a separation, reluctantly consented to, would be peacefully accomplished. When the reality of war came, there was no ground left for either hope or equivocation. The duty of the citizen then became as clear as imperative; men became eo instanti loyal or disloyal. As thunderstorms are commonly supposed to clear the atmosphere, so the reverberations of Fort Sumter’s guns cleared away hopes and doubts, and left every citizen either the friend or the enemy of the nation. Before that reality of war was reached, many stood in a locus penitentice. If from that event they did “ consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion,” Act 25th June, 1868, (15 Stat. L., p. 75, § 3,) their previous errors should not be deemed sufficient to attach to them the infamy of treason.

The judgment of the court is, that, the claimant recover the net proceeds of eleven bales of sea-island cotton, captured at Charleston, at $178 48 a bale, being in the aggregate the sum of $1,963 28.

Pecic, J.,

dissenting:

On the former trial I did not agree to the judgment, because I was not satisfied that the claimant had not given voluntary aid to the rebellion. I am still of that opinion, and think that he should not recover.  