
    Jacob Mayer v. The United States.
    
      On the Proofs.
    
    
      A loyal citizen, residing in Pennsylvania prior to the rebellion, sells goods to persons in rebel States on a credit. Plis brother, residing within those States, is his agent. During the rebellion the agent collects the debts due and invests the same, from time to time, in cotton without the hnoioledge of his principal.
    
    I. A principal residing in a loyal State during the war may accept the beneficial acts of an agency in the insurrectionary States. Buying and selling by the ■ agent within rebel territory without the knowledge of his principal is not within the prohibitions of the act of 13th July, 1881, (IS Stat. I/., p. 255,) forbidding “commercial intercourse,” so as to deprive the principal of the benefits of the “ Abandoned or captured property act.” (12 Stat. L., p. 820.)
    II. Debts due from rebels before the war commenced, if collected while it was pending, and saved for the use and benefit of a citizen loyal to the United States, would not contribute strength to the rebellion, and would not therefore violate any law or proclamation. _
    III. The act of 12th March, 1863, (12 Stat. L., p. 820,) allows residents within rebel territory to recover the net proceeds of captured and abandoned property upon certain conditions; therefore, persons not resident in such territory should also recover upon like conditions. The intent of the act was to prevent injury to those who were guiltless of aiding the rebellion.
    Mr. A. L. MeRRJMan for the claimant:
    This claim is for the recovery of the proceeds of 50 hales of cotton taken at Savannah, in January, 1864. The loyalty of the claimant is proven by J. S. Hays, who testifies that claimant resided at Philadelphia during the rebellion, and was loyal.
    
      The title is proven by David Mayer, Aaron "Wilbur, and C. B. Wesolowsky. Mayer, who is a brother of claimant, testifies that he was employed by claimant to collect moneys due him in the South, and, not being able to remit, he invested the proceeds of such collections in this cotton, under a general order from claimant to do the best he could with his money. This cotton was purchased by David Mayer, as agent of claimant; the bill, therefore, was made to him as agent, and the whole transaction was straightforward and in good faith.
    The cotton was then, for the purpose of dividing the risk, separated —twenty-one bales being removed by Mayer to his residence.
    The taking of the cotton is proven by the same witnesses.
    The Deputy SolicitoR for the defendants :
    It is assumed, in this case, that 50 bales of cotton, out of the whole quantity stored at Savannah, must have found their way to New York, and, after sale by treasury agents, into the national treasury by way of net proceeds. This is an action, then, for $12,500, as such estimated net proceeds, and it is brought by Jacob Mayer, of Philadelphia, in the mercantile business there at the commencement of the war, but acting as sutler in the United States army during the late rebellion. There was a tabular statement of cotton captured at Savannah, reported to the Quartermaster General’s office; but íd Lieutenant Colonel Hansom’s report of shipments of cotton there is no reference to this particular lot. The New York agency, it appears, was not furnished with any distinctive marks or numbers, and hence no record of specific lots. Hence it comes that the claimant bases his action on a legal intendment, that what the military officers were in duty bound to do was in fact done.
    It is alleged in the petition filed herein that, prior to the late rebellion, there were large sums of money owing to the claimant from divers individuals in the southern States in notes and accounts. These a brother of his, David Mayer, had instructions to collect, and out of the funds so accruing to make investments in Georgia cotton. All this was under a general power, and it does not appear in what way these notes and accounts were transmitted down south, whether prior to the breaking out of the war or flagrante bello. This money was first invested in cotton at Newnan, Coweta county, Georgia. Newnan is some four miles southwest from Atlanta, at which city we find the brother and agent to have been residing during the war. He was one of the Atlanta merchants. This Newnan cotton was sold on the first intimation of tbe near approach of the United States forces, and its place supplied with the 50 hales purchased at Savannah in September, 1864, as the witness thought, but according to the better evidence, the bill made out by the person from whom it was purchased, on November 28, 1864.
    The agent had changed his residence from Atlanta to Savannah, and this Savannah cotton was marked, in due course of such trading and business, with the initials of his own name, D. M., in a diamond* and stored partly in the witness’s house in Savannah, and partly in some warehouse.
    In legal intendment the acts of David Mayer, the agent at Savannah, are the acts of Jacob Mayer, the claimant, and the whole circumstances of this case place the latter, with his proof of loyalty, being a sutler in the United States army, in collusion with David Mayer, in Georgia, in his effort, under a general power, to contravene the proclamation of 16th August, 1861, forbidding all commercial intercourse and mutual dealings between citizens of the insurgent States and those of other States. This is no cotton, eo nomine, belonging to the claimant, Jacob Mayer, but the proceeds of certain lots going through one mutation at least, and how many more changes does not appear in the evidence, through the successive years from August, 1861, to December, 1864, till Savannah was captured, as bartered through this alleged agent. The claimant is shown to have transmitted moneyed securities to the insurrectionary States, to be converted into the produce most available there, and this without authority or license. It was against the national policy so to do, and he can have no right of appeal to the act of 1863, under which he is making this claim.
   Peck, J.,

delivered the opinion of the court:

Jacob Mayer represents himself to be a citizen of the State of Pennsylvania, and that prior to the breaking out of the late rebellion he was carrying on business at Philadelphia, in that State, in the course 'of which, individuals residing in the southern States became his debtors; and that his brother, David Mayer, under instructions, collected some of the money due to him, and invested the same in cotton, which was taken to Savannah, in the State of Georgia; that he had fifty bales of cotton in Savannah, which were taken by the forces of the United States, shipped to New York, and sold, the proceeds of which are now in the national treasury, and he seeks to recover them.

The defendant objects, first, that the cotton is not shown to have been seized by the agents of tbe United States. In this, we think, there is a mistake; the testimony shows that it was. It is next objected that the cotton was the property of David, and not the property of Jacob, Mayer; this is also a mistake. It is further insisted •that because other cotton was purchased by David Mayer with the proceeds of debts he had collected for his brother, which Was sold and the proceeds thereof reinvested in the cotton now in controversy, therefore the transaction is brought within the prohibition of laws regarding commercial intercourse, and a recovery cannot be had.

The act of the 12th of March, 1863, does not forbid a recovery, no ■matter how often a claimant may have bought and sold, provided he brings himself within the required conditions, even though he remained in rebellious territory throughout the war. The question of commercial'intercourse is as much involved in any such claim as in this; yet the defendant has not interposed this objection in any such case.

Jacob Mayer was not a resident of any State in rebellion, but David was, and being so, he continued to collect debts for his brother, which had been contracted prior to the rebellion, under instructions or authority previously received, the latter being uninformed as to what was being done for him in the premises. We do not think that Jacob Mayer should suffer the penalty of forfeiture for the conduct of his •brother in any unlawful management of business to which he was not ■accessory. The legal unity of principal and agent does not go quite to this extent. The war and the statutes passed in aid of it would revoke any authority given to an agent, though the benefits arising to the principal from the proper conduct of an agent might be recognized -and availed of after peace.

The debts which David Mayer collected for Jacob were created before the rebellion commenced, and did not grow out of any intercourse which was denounced by the law or any proclamation. Nothing was contributed to those who were in rebellion, but the collecting of these debts rather diminished than added to the strength of the rebels. There was no commercial intercourse which contravened the letter or spirit of the law, since all the transactions of Jacob Mayer were anterior to the rebellion. Jacob Mayer was a resident of the loyal States and in the service of the federal army, while David resided in the States in rebellion. Each acted independently and without the knowledge of the other; and there was no prohibition against the voluntary performance of acts of fraternal kindness not positively criminal, provided no injury resulted to the government. So far as this record shows both brothers were guiltless of giving any aid or comfort to the rebellion. The act which authorizes those who resided continuously in rebel territory during the war to recover the proceeds of captured and abandoned property, provided they were innocent of" giving aid or comfort to the rebellion, is not violated by allowing a citizen always a resident of a loyal State, equally innocent, the same grace and favor. To refuse it would be to discriminate against the-spirit of the law.

The testimony shows that Jacob Mayer owned 50 bales of cotton, which were taken from him and converted into money by the agents of the defendant and paid into their treasury. This makes a case for-claimant.

We, therefore, order a judgment for the net proceeds of his 50 bales-, of cotton, which we find to be $9,523 50.  