
    STODDART’S CASE. Alexander Stoddart v. The United States.
    
      On the Proofs.
    
    
      A loyal citizen,residing at the North during the rebellion, owns property in Mobile,, managed by one who has been his agent many years. After the war begins aitd communication with Ms principal is cut off, the agent invests money which he has collected in cotton, buying and storing it in his own name to avoid confiscation. During the war the agent leaves Mobile and goes to England, and immediately notifies the principal of the investment, who replies, and ratifies the purchase. Subsequent to the ratification, the cotton is captured. On the trial it appears that about half of the moneys invested in it belonged not to the claimant individudlly, but to an estate of which he was the managing trustee. No evidence is offered as to the nature of this estate, nor of the loyalty of its beneficiaries.
    
    I. The nils laid down by tlie Supreme Court in Grossmcyer’s Case, concerning commercial intercourse during the rebellion, and the distinctions between this case and Crossmeyer’s, stated.
    II. Where, under existing authorities, a citizen during hostilities may pay to a resident agent his debt due to an alien enemy, and the agent may accept the money and bind the principal, there it is not illegal for the agent who lawfully receives the money to honestly protect it hy investment; and the owner, after the war, like any other principal, may follow his money and become the owner of the proijerty into which it has been . turned.
    - III. Whore property belonging to a trust estate is captured, the trustees who bring suit for the proceeds need not make proof of their own loyalty, for their leg-al estate is but a device of the law to protect the rights. of others ; hut proof must he made as to the nature aud interests of the trust estate, and as to the loyalty of the beneficiaries entitled to the proceeds. The differences between trust estates and those of executors and administrators stated.
    
      Mr. T. J. D. Fuller and Mr. ’William E. Scott for the claimant:
    This case was heard, at a former term, by a majority of the ■court, and, by a divided court, an order made to dismiss claimant’s petition, (4 0. 01s. B., p. 512.)
    Subsequently a .new trial was granted, and the case is now before the court, on the former evidence, together with new evidence. 1 ■
    With the additional evidence now in the case, including the important letters passing between the agent, Henry, and the claimant, Stoddart, -on neutral territory, after the purchase of the cotton, and before its seizure by the government, and under circumstances when this statute was unknown to them and this suit could not have been anticipated, it is confidently believed that the evidence now before the court, read and examined in the light of the decisions cited, the task of the court will be comparatively simple and easy.
    1. Henry, the agent, is a competent witness, having no interest whatever in the event of this suit.
    
      a. Agents are always competent witnesses, from the necessity of the case.
    
      b. Even to prove their own agency and the extent of it. (11 Mass., p. 242; 13 do., p. 379; 10 Pick., p. 135; 22 do., p. 158.)
    The government brings out the fact in the cross-examination of Henry that in 1865 the claimant and Henry settled all their accounts, and squared them, leaving the two hundred and sixty bales of cotton as claimant’s property. This was three years before this suit was instituted. So that, whether the claimant recovers, or- is defeated in this suit, it makes no difference to the witness. Neither can Henry be liable to the vendors of the cotton, for when he purchased it he paid for it with Stoddart’s money, as Stoddart ratified the acts of his agent subsequently by letters, and secondly by this suit.
    2. That Henry was the universal and general agent of the claimant from the time he retired from business in Mobile, in 1854, to the close of the war, concerning all of the claimant’s unfinished and diversified property and interests in Alabama.
    
      3. That the power of attorney, dated June 9, 1859, was not intended to restrain and limit the.ante-existing agency of Henry, but was intended merely to evidence his agency in that class of cases where, by the local law, it was required to be evidenced by writing, seal, and acknowledgment'.
    
    4. The agency, therefore, was as broad and comprehensive and as diversified as the subject-matter to which it applied.
    5. As Henry appears before the court in the twofold character of agent and witness, all the facts and circumstances which precede and follow the agency are very material, either as affecting his agency or his credibility as a witness aud as a trustee. The agent had been the protege of the claimant and his-partner. Their relations were cemented by the ties of strong personal friendship. That an agent under such circumstances should act for his principal as he thought would be for his interest, under the extraordinary emergency existing, where he could not communicate with his principal, having full confidence from their past relations that whatever he might do would be-ratified and confirmed, is no uncommon or unnatural thing, and should not be looked upon with distrust Toy the court.
    
    6. Henry remained the agent of Stoddart after the commencement of the toar, having the possession and control of his notes, his personal and real property, and could lawfully collect the-rents and demands due his principal. Stoddart’s debtors could tender payment to the agent, and stop accruing interest.
    In Grossmeyer’s Case the Supreme Court says : “We are not disposed to deny that a resident in the territory of one of the belligerents may have, in time of war, an agent residing in the territory of the other, to whom his debtor could pay his debt in money, or deliver to him property in discharge of it; hut in such casé the agency must have been created before the war began.”
    
    In Ward v. Smith, (7 Wallace, p. 453,) Field, J., in discussing-the right of the debtor of one belligerent to pay to an agent of another belligerent, says : “ It does not follow.that the agent, if he receive the money, will violate the law in remitting to his principal. The debtor j by paying or tendering the money to the agent, can stop the accruing of interest.”
    These cases but reaffirm the old doctrine decided in the cases 1 Peters, 0. 0. Rep., p. 49G ; 3 Wash. 0. C. Rep., p. 390; 4 Harris & McHenry Rep., p. 161; and 19 Johns. Rep., p. 137.
    
      7. Henry, as agent of Stoclclart, therefore violated no law, was guilty of no wrong in receiving payment for Stoddart on the land, notes, accruing rents, or any other indebtedness to Stoddart.
    8. But if the war revoked the special power of attorney, (which is denied,) Henry remained the same universal general agent he was before the execution of the power of attorney, and before the war commenced; and even if this proposition is denied—
    9. Then it is maintained that the war only modified the relation and substituted an equally beneficial one for the claimant, to wit, a trustee of his principal;
    In Anderson’s case the Supreme Court says: “ The Aet March 12, 1863, is remedial, and is to be construed liberally; the Act July 17,1862, is penal, and to be construed strictly. The two acts are not in pari materia, and cannot be construed together.
    
      “ The Act March 12,1863, constituted the government a trustee for so much of the property as belonged to faithful southern people. And this protection extends alike to all loyal owners, whether residing in the loyal or retel States.”
    Now, considering this case under the light of these authorities, in their true spirit, and with the exercise of a reasonable degree of charity, can the court see any insurmountable obstacles in its pathway for allowing the claimant the value of his cotton ?
    10. From the necessity of the case, Henry either 'remained the agent of claimant, (the agency being created long anterior to the war,) or he became the trustee of Stoddart to the extent that he held his goods, chattels, rights, or credits in his hands.
    11. Upon the restoration of peace, Stoddart might legally treat Henry as his agent, ratifying and - confirming his doings, or he might disown his agency and treat him as his trustee, and. follow his property wherever he could identify it, or follow the proceeds of it into whosoever’s hands it came.
    12. The court must regard Henry as occupying one of two relations during the state of war:
    First. Either that of a friend and agent; or,
    Second. That of an unfriendly trustee.
    The whole current of the testimony, all the facts and circnm-stances, point strikingly to the former relation, and not to the latter.
    13. Upon the former hearing of this case there were certain queries thrown out by the court for the consideration of counsel, which I desire to notice. One was, if the cotton had been burned after purchase, anil before ratification, whose loss would it have been ? In other words, in whom was the title to the cotton in that interval ? I answer, unhesitatingly, in Stoddart.
    
    The title could not rest in abeyance; it must be in some person. But suppose Stoddart had refused to ratify the purchase, that would not make it Henry’s property.
    He could have denied the agency, and sought to recover the money from the vendors, or from Henry, if able to refund it. In that event, a judgment against Henry might, by operation of law, vest the title to the cotton in him, on the same rule of law that in an action of trover a judgment and satisfaction by the defendant is held to vest the title of the property in defendant which before was in the plaintiff. The title to the property in the interval was, by operation of law, in Stoddart, though he might divest himself of it by refusing to ratify the act of his agent. And where the title would then pass' to would depend on certain contingencies arising afterward.
    Kent’s Com., vol. 2, p. 319; and to this point also, 1 Black., p. 559.
    14. The ratification of the purchase before seizure happily relieves the court from all doubt on this branch of the case. The fact that Stoddart treated the cotton as his own, and corresponding with his co-trustees on the subject, shows that it was a real and Dona fide transaction, and no myth whatever. The loyalty of the claimant and the amount of money in the Treasury cannot be regarded as disputed points or as deserving-extended argument.
    15. Stoddart can properly maintain this suit in his own name, as he was accountable to his co-trustee, and long since assumed and paid off the indebtedness.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    I. The defendants move to suppress the deposition of Thomas Henry, Sr., as being the person from whom claimant derives bis title, right, or claim, against tbe United States. If this deposition be suppressed, nothing remains in the case to establish claimant’s title, and his claim must’fail.
    The discussion under the following point is intended to apply also in support of the motion to suppress:
    If Henry was the legal owner of the cotton, or any part thereof, at the time of the seizure, and by subsequent arrangement or ratification, so called, his interest was transferred to the claimant, or assumed so to be, he clearly stands as not merely the vendor of the cotton, but the assignor of his right of action against the United States, and as such is within the inhibition in the fourth section of the act of June 25, 1868.
    II. Henry was constituted, 9th June, 1859, not the general agent of the claimant, but his special agent, with accurately-defined and limited powers, to wit, to sell and lease certain lands; to collect, by suit or otherwise, debts and demands due claimant; to cancel certain mortgages specified, and other mortgages due claimant; to sell certain railroad shares, receive dividends on same, and vote on same, and for no other purpose.
    See Henry’s statement: u After the war was over and intercourse permitted, .1 advised the claimant how I had acted in the premises, and he fully ayiproved of it, and expressed his gratitude for what I had done.”
    Under this action, thus approved, Henry ceased to be the trustee of Stoddart in regard to a specific fund, but became his debtor for the amount of money so received and used.
    III. But the only moneys specifically identified as having-gone into the purchase of the cotton in question were, instead of these moneys, an amount of $5,000 in gold, or its equivalent in currency, due from Henry to claimant before the war, on account of loan, as to which Henry clearly bore relation to claimant of debtor and not of trustee.
    The purchase of cotton was solely in the name of Henry, claimant’s name not appearing. Theál purchases having been made in confederate money, and the value of such currency, as compared with gold at that time, not appearing, the amount of this debt does not appear, and it is, of course, uncertain what amount of other funds went into the purchase in question, and it is perhaps not material, especially under the third point above.
    IV. This alleged ratification,was subsequent to the seizure of .tbe cotton by tbe United States government, and therefore invalid as a transfer of tbe cotton, and amounts only to an attempted transfer of tbe claim against tbe United States for the proceeds of same.
    Y. It is a suspicious circumstance, to wbicli tbe attention of tbe court is called, that tbe cotton in question is only a remainder of other cotton purchased by Henry at tbe same price and time, which be succeeded in running to Liverpool, and there realizing tbe proceeds of for bis own use.
   Nott, J.,

delivered tbe opinion of tbe court:

This is an action brought to recover tbe proceeds of two hundred and sixty bales of cotton captured at Mobile, which proceeds, now in tbe Treasury, amount to $47,673 60. Tbe case has been twice tried. On tbe first trial tbe court decided that tbe claimant bad failed to make out bis title to tbe captured property, and dismissed tbe suit. (4 C. 'Ols. B., p. 611.) A motion for a new trial on freshly-discovered evidence was made and granted, and tbe case now comes up upon its rehearing. Considering tbe legal ability, tbe time, and tbe labor that have been expended upon it, it comes with facts singularly involved and confused, and may require a third trial before complete justice can be done.

Tbe claimant, resident in Baltimore at tbe outbreak of tbe rebellion, had been previously a merchant in Mobile. Thomas Henry, of that city, bad been for some years bis personal friend and business agent, selling bis property, collecting bis rents, and taking charge of bis affairs. Tbe claimant was also one of tbe trustees of tbe estate of John Henry,.deceased; and Thomas Henry was also a member of the firm of Thomas Henry & Oo. During tbe war tbe agent collected moneys belonging to bis principal and to tbe estate of Jobn Henry. Unable to remit these moneys, and seeking to protect them for the owners, be bought cotton. Tbe cotton was captured and sold, and the proceeds are in the Treasury.' On tbe former trial tbe court held as matter of law that tbe agent bad no authority during tbe war to invest tbe funds which be had collected in tbe captured cotton ; and, as matter of fact, that no ratification of tbe investment bad been given by tbe principal before its seizure. Tbe decision of tbe court went chiefly against tbe bona fide of tbe transaction, bolding that the purpose of the parties was to enable the loyal one, under the guise of principal, to recover the proceeds of property which had been purchased and possessed by one who could maintain no action by reason of his disloyal acts. The evidence now produced shows a clear and distinct-written ratification of the agent’s purchases immediately after they were made and long before the capture took place. But this new evidence also shows that other parties were equitably interested in the purchase of the cotton, contributing funds, and giving an implied ratification. On the former trial the matters in doubt lay between the principal and the agent; on this, they lie between the trustee and his cestui que trust.

The law of the case has been learnedly argued, but it is-believed that nearly every proposition necessarily involved was considered and determined in the case of Bernheimer Brothers,. (5 O. Cls. B., p. 549.) That case, it was supposed, laid down a broad yet guarded rule, which would enable the northern citizen to seek what was equitably his own without opening the-door to transactions collusive and designed to enable the disloyal citizen to escape from the strict conditions of the statute. It was shortly followed by the decision of the Supreme Court in Grossmeyer',s Case, (9 Wall. B., p. 72.) When that case was-before this court, it had been held in effect that the commercial intercourse which the law forbade was actual and practical, not merely constructive or theoretical. It was thought that a loyal citizen of the North, acting in good faith and with no purpose to aid the rebellion, might simply save his property in the South by directing its investment there, provided that he sent nothing into the insurgent districts and brought nothing out. It was thought that the law did not compel the loyal citizen, merely because he stood on loyal territory, to watch the ruin of his property within the rebel lines with folded hands, but that it allowed him to protect his own, always, however, with the proviso that he left the resources of the rebellion precisely as as he found 'them. The Supreme Court thought otherwise, and held that a mere message through the lines from friend to friend, to invest money already in the South iu cotton, and hold it till the war should be over, was illegal, and invalidated all that followed.

In Bcüefs Case, (5 O. Cls. B., p. 70S,) this court was speedily thereafter asked to extend the severe rule of the Supreme Court to a northern citizen unwillingly detained within the insurrec-tionary lines, and to bold' tbat because of bis legal residence 'be came under tbe same ban of non-intercourse, and acquired no title to tbe personal property tbat bis money bought. We thought tbat the rule of tbe Supreme Court was not one which •should be extended, and abode by our former decision. Tbe Supreme Court has not since extended tbat rule to any different case, and tbe question now before us is, shall this court do so %

Tbe differences between this case and Grossmeyer’s are these: There no agency existed at tbe time, nor before tbe war; tbe fund to be invested was a debt, and tbe debtor was the appointed ■agent. The communications, moreover, passed from North to South, from loyal to disloyal territory, and' directly across the military lines. Here tbe agency existed before tbe hostilities; the fund invested was money derived from tbe claimant’s own property, possessed by him in Alabama long before tbe rebellion began; tbe ratification was given after the agent bad left tbe insurrectionary districts, and- tbe communications passed only between England and the United States.

In this case there are two important chapters of law involved, yet they must not be erringly intermingled. The one is public in its nature, to restrict and make criminal all intercourse between enemies; tbe other is private, to govern tbe rights and obligations of principal and agent. If under tbe former tbe act of an agent were illegal, no ratification by a private person, though tbe agent’s principal, could make it lawful ,• being forbidden by law, it would be wholly and always void. If, on tbe contrary, tbe act was not forbidden by law, then tbe question would arise under the law of agency, whether it bad become binding upon the principal.

Tbe general rule of law undoubtedly is that all commercial intercourse between two enemies is unlawful; tbat war dissolves partnerships, annuls agencies, revokes powers, and makes every person in tbe one country tbe enemy of every person in tbe other. But there is one distinct exception declared by American courts, including tbe highest, which does allow tbe one belligerent to act for the other, provided always tbat it be without intercourse; for it has been decided that during hostilities a citizen may pay to a resident agent his debt due to an alien enemy, and that tbe agent may accept tbe money and bind tbe principal, Ward v. Smith, (7 Wall. R., p. 448.) It follows tbat neither the paying nor the receiving was commercial intercourse, and tliat tbe moijiey lawfully became, eo instanti,. tbe x>roperty of tbe principal. If now tbe law of non-intercourse, both international and statutory, allows tbe agent to-turn tbe property of bis principal from a chose in action into money, wbat is there to forbid bis turning it from money into personal property? It is said that tbé terms of tbe agency, tbe power of attorney, tbe previous authority exercised and permitted, did not allow him to invest. True; but tbe terms of tbe agency and tbe powers of tbe agent can neither enlarge nor affect the law of non-intercourse. Whether such an investment was within tbe terms of tbe agency; whether without-ratification it would bind the principal; whether, amid tbe circumstances, tbe agent would be relieved from personal liability, are questions involving tbe law of principal and agent, and not-to be confounded with tbe principles of international law. Tbe illegal act, according to all tbe authorities, was not in paying tbe money, nor in receiving it -, but would have been in transmitting it to tbe alien owner.. (Ward v. Smith, supra.) There is no authority which bolds that it would be illegal for an agent, who lawfully received money to honestly protect it by investment. If tbe law of non-intercourse allows tbe alien enemy to become tbe owner of tbe money thus paid, precisely as any other creditor may, then there can be no substantial reason why be cannot, like -any other principal, follow bis money and become tbe owner of tbe property into which it has been turned.

But all tbe reasoning that would defeat a recovery in this case rests upon authorities which, in their turn, rest upon facts of actual alienage. If Alexander Stoddart bad been tbe actual alien enemy of tbe United States, instead of their resident loyal citizen, these authorities would be in point and this reasoning applicable; or if tbe late rebellion bad been successful, and he were now prosecuting his claim before some Confederate tribunal, tbe attorney general of tbe Confederate States would urge against him precisely tbe same authorities that are relied upon by tbe law officers of bis own government. And the confederate attorney general might well argue that it was against tbe interests of tbe Confederate States to kllow northern debts to be thus shielded from confiscation, and against-their policy to allow alien enemies to acquire property within their borders. But in this case there was neither alienage nor-aught done by tbe claimant against tbe interests or policy of tbe United States. He never took upon himself the risks of an alien; he left his property within his own country when he left it in Mobile, and entitled to the protection of its laws; and it seems to me that it would be a perversion of principles and authorities for courts of the United States so to apply them that the rebel debtor might pay his debt and save his interest, and the rebel agent might receive the money and bind his principal, but that the loyal citizen should neither acquire interest on the money so paid, nor be allowed to follow it in the property in which it is invested. Such a ruling would bind him so far as the acts of his debtor and agent were to their own benefit, and desert him so soon as they' were exercised for his protection.

At the first trial of the case there was no suggestion of any interest in the captured cotton existing, save that of the claimant in his individual right. Mr. Henry was examined as a witness, and he testified: As Mr. Stoddart’s agent I received (including $5,000 due him by myself) about $30,000, between 1st April, 1801, and 1st June, 1865.” “ Of this sum, between $0,000 and $7,000 was received for rents on real property belonging to the claimant, and about $18,000 was received for sales of real estate made by me for him, and which real estate I conveyed by deed in 1858 and 1859, and collected the pay for it in years 1801,1S02, and 1803. The funds received by me for sales of real estate were Confederate money, and so were all collections made for him.” This statement about Confederate money he repeated on his cross-examination. The fact is not important, for later he shows that when the first purchases of cotton were made Confederate money was u about equal to gold,” but when a large part of the collections were made, in 1801, Confederate money had not come into existence. Doubtless the witness collected the money in current bank notes, deposited them in bank, and, when he came to invest, could only procure from the bank Confederate money.

With this Confederate money, no matter how acquired, Mr. Henry purchased cotton as the agent of the claimant and on his account. It was purchased at various times from March 26, 1862, to February 7,1803, at prices varying from 6 to 15 cents per pound, and amounting in the aggregate to $18,866 62. Being brought to Mobile in 1863, it was stored withN. W. Perry & Co., separate and apart from any cotton of the agent’s, but was marked with the name of bis firm, Thomas Henry & Oo. 'The object of so marking it was to save it from confiscation. On the capture of Mobile, the cotton was seized by the United States forces. It was reported to be the property of Thomas Henry & Oo.; but as neither the agent, Henry, nor the claimant, Stoddart, was then at Mobile, this fact has not the significance upon the question of ownership which it had in the leading cases of Grossmeyer and of Bramhall.

By the evidence produced on the second trial certain additional facts are disclosed. First, Mr. Henry, in a letter to the claimant, written at Matamoras April 15, 1865, says: “I do now recollect how much I invested for you, but it toas all the money of yours and Mrs. Henry's I had on hand at the time.” “ As near as I can recollect, it toas somewhat over $20,000. I have done the best I could to protect both [your] and Mrs. [John] Henry's interests.” In the same_ letter lie speaks of the cotton that “ I purchased from the moneys collected for you, mid Mrs. Henry.” Again he adds I can only say the cotton is yours and Mrs. Henry’s — teas bought with your and her money, which at the time 1 thought best for both your interests.”

On the part of the claimant there was no disavowal of his agent’s acts or statements. He wrote on the 31st of July, 1863, approving all that he had done, and at the same time referring him to Mrs. Henry, then in Europe, for all information. He wrote' again, on the 2d September, to one of his co-trustees, that Mrs. Henry had just returned; that she had conferred with the agent in England, and that what was invested in cotton might turn out very well or might end in smoke. He wrote also to a creditor of the trust estate, on the 3d September, that Mrs. Henry had met the Mobile agent, and that everything had been done “ for our interest that the state of affairs would admit.”

It appears, among several deeds and mortgages that are in evidence, that the trustees of the estate of John Henry conveyed a plot of ground in Mobile to one Dominick Q’G-rady, the consideration .whereof was $14,000. . At the same time the claimant also conveyed an adjoining plot for $7,500. The two sales were made by the agent, and constituted but one transaction. One mortgage was given by the purchaser to the two sets of grantors jointly for $19,100, to secure the unpaid bal.ances of the purchase. A part of this purchase-money, secured thus by tbe mortgage, fell clue in January, 1862, and was collected by the agent, whereof $3,306 belonged to the estate, and entered into the cotton purchases'whicl^he, the agent, made.

To this objection, that thejtrust estate of John Henry contributed to the purchase of the cotton and is jointly interested in its proceeds, the counsel for the claimant returned two answers, which we will consider separately:

First, he said that, as a matter of fact, more money belonging to the claimant is shown to have come to the agent’s hands than the amount invested in cotton. He states his account thus:

From the sale of real estate. $9,630

From rents collected by the agent. 6,000

From the agent, for his own debt... 5, 009

20, 630

We are constrained to say that we cannot accept the statement, and that it is overthrown by the evidence. For, first, it appears that but $18,866 went into cotton, being all the moneys then in the hands of the agent, of which at least $3,306 belonged actually to the Henry estate; and, secondly, it is shown by the testimony of the agent, already quoted, that some, if not all, of the rents belonged to the same estate; and, thirdly, -we find in the first letter of the agent to the claimant, written after the cotton was purchased, and after the writer had left Mobile, reference to his mortgage to secure his own indebtedness of $5,000, with a promise that it should be recorded, and making no pretense of having paid the debt by investing it in cotton.

After a protracted examination'of the obscure and involved statements and insufficient data of the case, we are satisfied, and irrespective of this letter of the agent’s, that his $5,000 never entered into the purchase, but, on the contrary, that the $3,306 belonging to the trust estate did. And we are satisfied that the $18,866, invested in cotton, was made up as follows:

From the sale of the claimant’s real estate. $9,630

From rents collected by Henry.-. 6, 000

From the sale of the trust estate property. 3,306

18, 936

As to the above rents, it appears that at least a part of them belonged to the trust estate, and it does not appear, save in the testimony of a witness whose heedless statements cannot be relied upon, that any part was really the property of the claimant.

Upon the evidence as it stands, we conclude that of the .$18,866 invested in the cotton, $9,630 belonged to the claimant and $9,236 to the estate of John Henry, and that these respective amounts are represented in this suit, the former by one hundred and thirty-three and the latter by one hundred and twenty-seven bales of the captured cotton.

We will consider now the second answer of the learned counsel, which raises the second legal question in the case.

It is insisted, 1st, that as the agent kept no account with the estate, but only with the claimant individually; and, 2d, that as the claimant had the exclusive management of the estate, with the assent of his co-trustees; and, 3d, that as the accounts related to matters which occurred after the death of Mr. John Henry, therefore the claimant might have brought the action in his individual name, though the whole of the money invested in the cotton had belonged to the estate. Certain authorities are relied upon to sustain this: Kane v. Paul, (11 Peters’s R., p. 33 ;) Foote v. Noland, (5 Cranch C. C. R., p. 399;) Green v. Hanburg, (2 Brock C. C. R., p. 403;) Callin v. Underhill, (4 McLean R., p. 337.) But these are cases which relate only to the ordinary rights and liabilities of executors; they do not reach the true difficulty of this case.

The ordinary actions of executors fall into two classes of cases: 1st, where property was sold by the testator, and there the action must be brought in the name of the executor; 2d, where property has been sold by the executor since his testator’s death, and there he may bring the action in his individual name or in his official character. The reason why the law compels the one and allows the other is because in the one case the debtor dealt with the testator, and should be liable only to his representative as such;.while in the other he dealt with the executor, and having to respond to him it can affect no interest and disturb no right, whether the latter elect to proceed in his individual or his official character.

But in these abandoned or captured property cases there is a new and confusing element, termed loyalty, which disturbs the relations of the parties, and renders inapplicable many well-settled principles and forms and analogies of ordinary practice-Mr. Stoddart, moreover, appears in this case to have been something more than an executor, namely, a trustee. The terms and conditions and period and nature of the trust are not disclosed, yet it existed as long ago as January, 1859, as appears by one of the deeds in evidence. With regard to executors and administrators, we have already held that they come into court, strictly in a representative capacity, invested with all the equities, entitled to all the relief, and subject to all the disabilities, of their decedents. Therefore it has been decided that the loyalty or disloyalty of the representative could neither aid nor injure the estate which he represents; and it has at the same-time been decided that from the nature of things the loyalty or disloyalty of the distributees cannot be reached, and that they, like executors, must stand upon the character of the decedent. But with regard to trusts no case has yet been before the court.

There are several points of difference between trust estates, and those of executors and administrators. They are not transient, nor for a mere distributive purpose; the beneficiaries are certain and few; their interests are fixed, and can be made known to the court; in equity the cestui que trust is regarded as the owner.

The ruling of the court as to administrators, when applied to-property captured after the death of the decedent, and which, had morally become the property of the heir or the creditor at the time of its seizure in the hands of the- administrator, is-questionable; and when applied to the exclusion of the loyal heir or the loyal creditor is harsh; yet, from the nature of things, cannot be otherwise, for the court cannot, as a rule, know the distributees of such an estate; nor take proof as to-the loyalty of each; nor direct the application of the proceeds;. nor interfere with the final distribution of what comes to the-custody of the administrator. But it is not desirable that this-rule be pushed beyond it own necessity. Here is a trust estate created before the war begau. The testator’s loyalty is not in question, for his responsibilities had ceased ere the season of trial came; the trustees need not make proof of their own, for they are but agents who may be changed, and their legal estate-but a device of the law to protect the rights of others. Shall the beneficiaries make proof, or shall. a recovery be allowed under this statute, which requires proof of loyalty, without. there being a particle of proof offered, as to any person, past or present, who owned the property at law, or is entitled to its proceeds in equity ?

The statute under which we act, and under which the party claims, requires not only proof of the ownership of thé captured property, but also u of his right to the proceeds thereof.” We find in the evidence that this party did not in fact own the funds which purchased this portion of the captured property; that their investment in the cotton was regarded by himself and co-trustees long before capture as an investment which should inure to the benefit of the trust estate; and th at the same ratification was given for this portion of the investment as for the other. Therefore we think he has shown for the unknown beneficiaries of that estate the same equitable title to one portion of the proceeds that will entitle him to recover for the other. He has not shown any liablity assumed by himself for the investment, nor can we assume his right to repay to the trust estate the small amount of the investment and take to himself the large amount of the proceeds. If it be said that the parties may arrange this matter among themselves, or make it tlie subject of adjudication in other courts, we must answer that they cannot thus elude the conditions of the statute. Grantiug that the single trustee, upon general principles, may maintain the action, it does not follow that he can retain the proceeds. Granting that there is a remote liability from the claimant to the estate for the acts of his agent, it does not follow that he can reap the profits which have accrued from the use of the trust funds.

Our conclusion is that the claimant may recover for the net imoceeds of one hundred and thirty-three bales of the captured cotton, amounting to $24,391 80, but not for the proceeds of the remaining one hundred and twenty-seven bales; that judgment be entered accordingly, unless the claimant elect within thirty days to have the case remanded to the docket, and give proof, 1st, as to the ownership of the rents collected by his agent and invested in the captured property; 2d, as to the nature and interest of the trust estate of John Henry, deceased ; 3d, as to the loyalty of the beneficiaries of that estate who may be entitled to receive, through their trustees, the proceeds of the captured property.

Milligan, J.,

dissenting:

I regret I am unable to concur in the opinion of the court just announced. The grounds on which it mainly rests, in my judgment, is not the turning question raised in the record. Outside of the question of the competency of Thomas Henry as a witness, which, under the same facts now in this record as to him, was decided adversely in the former trial, the real question is as to the right of the agent to invest the funds of his principal in the cotton in question.

It is an admitted fact that the power of attorney under which the agent acted, dated June 9,1859, conferred on him no general powers. It was special in its nature and character, and expressly limited to settling up the business of the principal, selling off his real and personal 'estate, and collecting in his debts. It conferred no power on the agent to reinvest the money derived from any of these sources, or to engage in any speculation, however tempting or advantageous to the principal. The agent treated his authority in this light, and could, I think, have viewed it in no other. He says, after stating that he had collected about $30,000 for the claimant, including $5,000 due from himself, that I concluded to invest this money of the claimant, which I held as I did my own, principally in cotton.” The cotton was purchased on the agent’s own discretion, and without any previous knowledge or authority of his principal. Had this been done in time of peace, or by an agent residing in time of war within the same belligerent territory where the principal resided, and the act, with full knowledge of all the circumstances, afterward ratified by the principal, there -would h*ave been no difficulty in it. But it is far different in time of war, wrhere the principal resides, as in this case, in one belligerent territory, and the agent in the other. In such a case it is -well settled, on grounds of public law, as well as under the act of Congress, that all commercial intercourse between the two belligerents is unlawful. The only exception to this universal rule, if indeed it can be called an exception, is when the sovereign, after war breaks out, licenses a limited or special trade between the inhabitants of the belligerents. In the late rebellion this could have been done by the President under the act ©f July 13,18G1, according to the regulations prescribed by the Secretary of the Treasury, but in no other way.

But it is said, that this rule is not violated in cases where the principal resides, in time of war, iu one of the belligerent territories, and has an agent appointed before the war, residing in the other. Iu such a case the agent, if known and duly authorized thereto, may receive in money the payment of debts due his principal there. But the books go no further, and, in fact, very cautiously announce this doctrine, and sparingly treat of the reasons on which it rests. (See Ward v. Smith, 7 Wall. R., 447; Conn. v. Penn., 1 Peters, C. C., 496; Dennison v. Imbree, Ib., 396; Paul v. Christie, 4 Harris & McHenry, 161.)

But, admitting this doctrine, which certainly is not strongly sustained by the elementary writers on public law, do the facts of this case bring it within the rule ? It is clear to my mind they do not. In fact, it is not pretended, either in the argument or by the agent himself, that he had any previous authority to invest the- claimant’s money in his hands in anything whatever. He says that “ there were three sources of investment presented to him, viz, real estate, sterling exchange, and cotton, and he preferred the latter.” Now the question is, had he the authority to make the investment; and if not, does the subsequent ratification by his principal confer it? It is clear, if the act was void, and not merely voidable, no subsequent ratification can make it valid. (Story on Agency, § 240.) Was it void? The answer is found in the transaction itself. The agent says he made the investment for his principal; and the cotton, the proceeds of which is now claimed by the principal without contest on the part of the agent, is the identical cotton thus bought for the claimant. It is conceded that Stoddart, then residing out of the insurrectionary district, could not have made this purchase, for that would have been trading directly with the enemy, and unlawful by the statute. Then, can he do by an agent, self-constituted and acting for his principal, what he could not do himself? Certainly this cannot be the law. The act of purchase, being for the principal, was void, and no subsequent ratification can make it valid.

In Grossmeyer’s Case (9 Wall. R., 72) Justice Davis, in delivering the judgment of the court on a question involving this doctrine, says: u Besides, if, as is conceded, Grossmeyer was prohibited from trading directly with the enemy, how can the purchase in question be treated as lawful, when it was made for him by an agent appointed after his own disability to deal at all with tbe insurgents was created 9” He adds: “ It is claimed that the purchase by Einstein was ratified by-Grossmeyer, and that it relieves the case of difficulty, but this is a mistaken view of the principle of ratification, for a transaction originally unlawful cannot be made any better by being ratified.”

This seems conclusive of the point under consideration, for there can be no valid distinction between appointing an agent during the war, as in Grossmeyer’s case, to deal with the enemy, and in ratifying, while the war is in progress, the acts of an assumed agent who had. done the same thing for his principal. Both, in my judgment, are unlawful, and not to be countenanced or encouraged by the courts. Hardships, doubtless, arise under the rigor of this rule, but the public policy of all civilized communities is subserved by it. A great number of cases might be cited to illustrate the uniformity with which it has been enforced, but I shall only refer to a few, which will serve to show the rule and reasons on which it rests.

In the case of The Hoop, (1 Bob., 198.) Sir William Scott, in discussing the leading principles of reason and policy on which all trading and intercourse with an enemy, except by the permission of the sovereign, was interdicted, said, in substance, that the sovereign, who has the power of entirely removing the state of war, has the power of removing it in part by permitting, when he sees proper, that commercial intercourse which is a partial suspension of war. But it is not for individuals to determine on the expediency of such occasions. It is for the state alone, on more enlarged views of policy and of all the circumstances that may be connected with such intercourse, to determine when it shall be permitted, and under what regulations.

And again, the case of Willison v. Patterson et al. (7 Taunton, 439) is to the same general effect. In that case a Frenchman at Dunkirk, in France, in time of war, having goods in the hands of of the defendants, who were merchants in London, drew three bills of exchange on the defendants, which were duly remitted and accepted, to be paid when the goods were sold. The goods were sold and the proceeds received by the defendants. The bills were indorsed by the Frenchman to the plaintiff, an Englishman, residing in France, and suit was brought on them after peace. In delivering the opinion of the court, Chief Justice Gibbs said: “It is illegal for an alien in an enemy’s country, ■during war, to draw a bill on a subject resident in England and then sue him after peace for the amount of such. bill. It gives rise to a communication between subjects of both countries, which ought to be avoided. The drawing and the accepting •o/ the hills were acts in themselves illegal. All communication with an alien enemy during war must be prohibited, and is so by the policy of the law.”

Chancellor Kent, in the great case of Griswold v. Waddington, (16 John. R., 483,) after reviewing all the leading authorities on this point, in summing up says that “ there is no authority in law, whether that law be national, maritime, or municipal, for •any kind of private voluntary unlicensed business, communication, or intercourse with an enemy. It is all noxious, and, in •a greater or less degree, it is all criminal. Every attempt at ■drawing distinctions has failed; all kinds of intercourse, except that Avhich is hostile, or created by the mere exigencies of war .and necessity of the case, are illegal.”

Other authorities might be added, to the same effect, almost to an indefinite number, but enough have been presented to illustrate the principle which, in my judgment, ought to rule .the decision of this ease. It may be the strict application of this principle here contended for will impinge on some of the •opinions of this court heretofore made, but it must be remembered that they were delivered before the judgment in Gross-meyer’s case was pronounced by the Supreme Court, and if ■either has to give way, the former must yield, and not the latter.

Added to these reasons, I think, as the court held in the former opinion in this case, Thomas Henry was an incompetent ■witness, and his testimony ought to be rejected.

The petition should be dismissed.  