
    BERNHEIMER BROTHERS’ CASE. Isaac Bernheimer et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants are merchants residing in New York. Zippman is a merchant residing in Savannah. For many years before the rebellion they are the agents and business correspondents of eaoh other. In 1861 and 1862, Zippman being then the claimants’ debtor, collects money due them and buys cotton. He stot es this for long storage; tells his family and the ivarehouse-man that it is the claimants’ cotton; marks itwith their initials ; sends outmessages through the lines thathe has bought cotton for them. Other cotton he buys and sells during the war, but this he keeps separated from his own until the fall of Savannah. Then he reports it instantly as the claimants’. His deposition being here admitted in evidence, it appears that shortly before, and in anticipation of the war, the claimants authorized him generally to collect and invest in whatever he should think best and safest. There is no ratification of the investment before capture, save such as . may be inferred from the claimants’ silence. There are mutual accounts between the parties still unsettled. Zippman is largely indebted to the claimants, and insolvent. The amount involved here exceeds his indebtedness.
    
    I. The government, by the capturo of personal property, does not attain the place of an attaching creditor, nor acquire the rights and equities of a purchaser for a valuable consideration. Neither will a creditor in a loyal State and debtor within theinsurrectionary districts be held to the requirements respecting the transfer of personal property,which the law exacts of such parties, in favor of third persons, in times of peace. The cases under the Abandoned and captured property act (12 Stat. L., p. 820) are without legal precedent in this particular, and, to a certain extent, must be detormined.by rules and principles of their own.
    II. Whore a debtor (or agent) within the insurrectionary districts, at the moment of capture, reports property to bo his northern creditor’s, (or principal’s,) he having previously separated it from his own, and consistently held it to await capture, exercising over it the fewest possible acts of ownership, and notifying the creditor (or principal) of his purchase whenever an opportunity enabled him so to do, the Court of Claims has uniformly held that the creditor (or principal) should be deemed-the owner within the true intent of the “Abandoned or captured property act,” (12 Stat. L., X>. 820,) though no express authority was given before purchase and no express ratification made before capture. But where the debtor, (or agent.,) at the time of capture, reports the property as his own, he having previously treated it as such, and the ownership of the northern creditor (or principal) has rested exclusively within the debtor’s breast, so that calling it the creditor’s may have been a mere afterthought, the court has uniformly held the debtor to be the owner, and the pretended transfer in fraud of the act.
    
      
      Mr. Charles P. Daly and Mr. Geo. Taylor for the claimants :
    The claim in this suit is for 936 bales of cotton — 576 of sea-island and 360 of upland — seized by the United States authorities in Savannah, Georgia, in the months of January and Feb-uary, 1865, after the capture of that city by the United States forces.
    The claimants compose the Ann of Bernheimer Brothers, a loyal house of the city of New York. At the breaking out of the war there was due to them in the Southern States about $300,000. At that time Joseph Lippman, a .wealthy and respectable merchant of the city of Savannah, was their commercial correspondent, and acted as their agent in the collection of their debts in the States of Georgia, North Carolina, Florida, and Alabama. At the commencement of the war there was due to them in these four States the sum of $101,283 94, in addition to which Lippman was himself then largely indebted to them.
    They had had, extensive mercantile dealings with Lippman for many years. All his notes’ for purchases at the North were made payable at their house, for which he remitted funds, and his notes were always paid by them at maturity Avhether they had funds at the time to his credit or not.
    Lippman came to New York to make his usual spring purchases in February, 1861. He told Isaac Bernheimer that when he left Savannah it looked a little gloomy, but he hoped it would blow over by the time he got back; that if it did not, he wished the firm to pay his notes as usual, and that he would remit them the money as fast ás he could, saying: “ I expect you to look to my affairs the same as before, and take up my notes as they fall due,” and that in the eveut of any difficulty, he would secure them in the best way that he could. Isaac Bernheimer then told him that if the trouble should be very serious, to collect their debts in the South as far as he possibly could, and invest or secure the money in the best way he could, which Lippman promised to do. The substance of the understanding was that Bernheimer Brothers gave him power to act to the best of his judgmeut in the event of any trouble; to secure and protect their interests by the purchase of property for them, or in any way that he might deem the most judicious; and with this understanding Lippman returned to the South.
    
      He proceeded, immediately upon Ms return, to collect their debts in Georgia, South Carolina, Florida, and Alabama as long as be could do so with safety, for laws were passed that all debts due to northern creditors should be paid into the Confederate treasury. He collected about-$30,000, and being in possession of a large amount of fuiids belonging to them which he could not transmit to them, he concluded, as he testifies, to buy cotton with every dollar, that he might make good the promise he had made to them in New York.
    For this purpose, he purchased, between the summer of 1861 and the month of January, 1862, 720 bales of cotton, which ho stored in the wareliouse'of Edward 0. Wade, and 300 bales, which he stored in the warehouse of William P. Yonge, merchants of Savannah; of which amount 236 bales were destroyed by a fire in one of Wade’s storehouses, the first or second night after the capture of the city, and 57 bales were taken away or stolen from Yon go’s warehouse, which was broken open on the night of General Sherman’s entrance into the City — for which 289 bales no claim is made; leaving the amount found and taken by the United States authorities from Wade’s warehouses but 465 bales, and from Yonge’s, 247 bales. He also purchased in January, 1862, 38 bales ¡-November, 1862, 76 bales; November 16,1864, 41 bales; December 7,1864, 69 bales, stored, as will appear by the evidence, in different places, making in the whole 936 bales, all of which was taken by the United States authorities.
    These 936 bales were bought and kept by him for Bernheimer Brothers, and were entirely distinct from other purchases of cotton made by him and sold by him upon his own account. He-paid for these 936 bales in cash or in merchandise, nearly all being purchased for cash, regarding and treating this cotton throughout as the claimants’ property from the summer of 1861 until the capture of the city in December, 1864, a period of nearly four years; when he could easily, as he testified, have sent it away by blockade-runners from Charleston, and ■ sold it in Europe, as many did at the time. When he placed the lot of 720 bales upon storage with Wade in January, 1862, he told him confidentially that it belonged to Bernheimer Brothers, New York, to whom he was largely indebted: that firm being-known to Wade, and he afterward told Wade that he had other cotton stored in other places in Savannah, which also belonged to them.
    The relations of Wade, who was a merchant of Savannah in high standing, with Lippman, were more intimate and confidential than with any other person, and Wade testifies that the cotton was stored with him on long storage during the war, with the information that it had been purchased for Bernheimer Brothers; that it belonged to them, and was their cottton. In. purchasing the lot from Blun & Meyer in January, 1852, Lipp-man told Meyer confidentially that he was indebted to the claimants in a very large amount, and that to secure them he would purchase cotton and keep it for them until the troubles were over.
    He also told an intimate friend, Millhauser, in confidence, in the early part of 1862, that he had bought cotton to pay what he owed in the North to Bernheimer Brothers.
    Some time before the capture of the city, Hamilton, a cotton merchant, wanted to buy some of the cotton which Lippman had, stored with Wade, but Lippman told him that he had bought it for a particular purpose, to pay his northern creditors, and mentioned the.name of Bernheimer Brothers. To his son and his nephews, who acted as his clerks, and to the whole family, the purchase of this cotton, the storing of it, and the fact that it was bought and kept as the property of Bernheimer Brothers was familiarly known and understood, from the purchase of it until it was taken by the United States authorities.
    In the summer of 1862 Lippman succeeded in sending one of his sons to the North to keep him out of the Confederate army. This young man knew all about the purchase of the cotton, and Lippman instructed him, when he got to New York, to inform Bernheimer Brothers that he had done the best he could for them; that he had bought cotton for them, and should keep on buying it for them to make good the promises he had made to them in New York.
    In June, 1863, Lippman assisted his nephew to escape to the North, and instructed him to tell Isaac Bernheimer that he had bought cotton for the claimants; that they need not feel un-' easy, that they were secure, that he had bought cotton enough to secure them and to pay what he owed them; that he would rather lose a limb from his body than let him or any one of his-creditors suffer for want of payment of his just debts; that he was then, as he always had been, for the Uni on 5 which message' the nephew delivered; and again, in 1861, he told Millhauser, whom he assisted with money to get to New York, to call upon the claimants, and tell them that he had bought cotton for them; that they were all right, and that he hoped to see them soon, which Milhauser did.
    The’ claimants paid Lippman’s notes to the amount of' $22,133 98, of which‘$11,228 22 were paid by them, before the passage of the act prohibiting commercial intercourse and more-than a month before the battle of Manassas was fought. The notes remaining unpaid, amounting to $23,410 10, are to be protected and paid by them. Including this $23,410, the payment of which they have assumed, the indebtedness of Lippman to them was $90,904 74, which does not include interest, which would amount, upon averaging the accounts, to about $20,000. Not a dollar of this amount has been paid to them by Lippman. The cotton he bought for them, and which they seek to obtain in this suit, is all they have for it; in all his communications with them he has uniformly treated and spoken of it as their-property. It is all in fact they have-now to rely upon, for Lipp-man was a heavy loser by the war, and is now supporting him- . self in an inland town in Georgia by running two. saw-mills,, which he owns in conjunction with other persons.
    Lippman was from the beginning to the close of the war a Uuion man. The testimony upon this head is abundant. He. is a German, who had been many years in Savannah, and is-described by all the witnesses as a man of great integrity and of high character. As a merchant, he stood a first-class man, whose word was as good as Ms bond; who was regarded by all classes of persons as a man of high character and integrity, and by many was called “father,” as an appellation of respect. From the first he rvas opposed to secession. He voted against it, and used his influence to get others to vote against i b. When the question of secession was agitated, he was heard frequently to use the Jackson motto: “The Union must and shall be preserved.” When the States had seceded, he was in favor of reunion. There was great prejudice against foreigners, and Lippman had to be more cautious, for he would have incurred great risk by openly expressing his sentiments. One of his intimate acquaintances for expressing Union sentiments was knocked down senseless by a fence rail, his body dragged through the streets by a rope fastened to bis feet, after which he was hung, in the presence of his mother. A week before, he had been in Lippman’s store, and expressed to him his apprehensions of personal violence. After this, Lippman avoided ■ expressing his sentiments except to such as he knew to be Union men whom he could trust; but his sentiments were well known. When Sherman’s army entered, he went out to meet .and welcome them; advised the general in command that he had flour enough in his mill to feed the troops for two weeks; that they were welcome to it with his whole heart; informed ■the general of the number of bales of cotton which were stored ■in the city, and advised him to pat guards over all the warehouses in which cotton was stored, to save it from destruction, which advice was acted upon, and he went himself with a guard of ninety men and pointed out the different warehouses. , All the flour in his mill was given by him freely to the United ■ States troops without compensation, and for which he has never received anything. The United States officers while in Savannah came very often to dine and to sup with him while the army was there, and got from him the information they wanted, and, finally, his loyalty throughout may be best expressed in-his own language: “I swore allegiance to the United States in the State-House in Philadelphia in 1840; I have faithfully kept that oath, and shall until I die.”
    The loyalty of the claimants is also abundantly shown. Their house is one of the principal mercantile houses of New York, known to be a house of the highest integrity and character, which was not only loyal, but actively loyal, throughout the war, contributing to the raising and equipping of regiments, •.and to the national defence committee. One of its members served upon various committees for raising money for the Union cause during the war, and the elder member of the firm, when the first call for troops was made, collected all the clerks and men employed in the house, some sixty to seventy persons, and ■exhorted them to enlist and save the country, promising that .■all who would- do so should receive their wages during the time they were away.
    I. The action of Lippman in purchasing and keeping this •cotton throughout the whole of the war for a loyal northern house to which he was largely indebted, was an act showing ■both the integrity of the man and his fidelity to the cause of the Union. By doing this he incurred great personal risk by the law of the Confederate congress before referred to, requiring all persons to disclose any indebtedness to northern creditors, and to pay the amount into the hands of receivers under the penalty of double the amount of the debt and of imprisonment. {Statutes at Large of the Confederate Congress, by J. M. Mattheius, printed at liiohmond hy B. M. Smith, pp. 201, 200.)
    II. Nothing' that was done by Lippman in Savannah, nor by Bernheimer Brothers in New York, during the war, was inconsistent or in conflict with the duty they respectively owed to the government of the United States, or with the President’s proclamation of the 18th of August, 1881, or of the act of Congress of July 13,1801.
    1. This act is to be liberally construed to carry out the intent ■of it.
    
      2. When two nations are at war, the citizens of each are bound to lend all their aid to maintain their country in the vigorous prosecution of the war.
    3. The act of war suspends all intercourse, and all commercial and mercantile relations which may have previously existed, because the citizens of each country are then enemies, and while the war exists are in a state of hostility to each other.
    4. This is the well-settled rule when two independent nations are at war.
    5. So far, however, as the reason of this rule is founded upon the duty of allegiance, it will be regarded very differently by this court in the exercise of the special and peculiar jurisdiction which has been committed to it by the act of March 3,1863, than it would be or could be by other tribunals.
    III. What was meant by commercial intercourse appears by the terms of the act of July 13, 1861, interdicting it. It declares that, after the issuing of the proclamation, all commercial intercourse between the inhabitants of the State, or parts or sections declared to be in insurrection, and the citizens of the rest of the United States, shall cease and be unlawful, so long as such condition of hostility shall continue.
    The object of this prohibition was to cut off all interchange of commodities between the rebellious parts and the rest of the United States, except in such articles as the President should permit. What is hero prohibited, is all locomotive intercourse and all attempts to carry on traffic by the interchange of commodities ; for such intercourse, as was said by Chancellor Kent, facilitates the means of conveying intelligence and of carrying on traitorous correspondence with the enemy,, and contains within itself the germs of treason and rebellion^ (Griswold v. Waddington, 16 John. R., MS. 1 Kent’s Com., p. 66.)'
    It is submitted that there was nothing of this character in what was done by Lippman, as his act was simply the recognition of an obligation which existed before the war, and was-not intended to take effect for the beneñt’of the creditors until the war was over. (Mv parte Bousmalcer, 13 Yes., 71.)
    IY. Bernheimer Brothers, by engaging to and by paying Lippman’s notes to his creditors in New York, did nothing, inconsistent with their allegiance as loyal citizens, and violated no duty imposed upon them by a state of war. It was held by Justice Washington in Gown v. Penn, (Peters C. C. R., 524,) and approved in Dennison v. Imbrie, (3 Wash. 0. 0. R., 396,) and in Griswold v. Waddington, (16 John. R., 484,) that there is no prohibition in the time of war of the payment of a debt to tho agent of a creditor, when the agent is residing at the time in. the country of the debtor and is authorized to receive it, although the creditor be at the time an alien enemy.
    Y. If. this court should think that Lippman could not from existence of the war do what he did, and the Bernheimer Brothers-liad no title or right to the cotton at the time of its capture, then the ownership, when that event (the capture) occurred, was in Lippman, and as it is shown that he never gave aid or comfort to the enemy, he might after its capture lawfully transfer to them the fight to the proceeds under the act, and which* he has done.
    His acts after the capture operate and may be treated by the, court as an equitable assignment and appropriation to the claimants of all right to the proceeds under the act.
    Story’s Equity Jurisprudence, pp. 1046, 1047; Burry. Car-valho, 4 Myl. & Craig, 690; Colesioorth v. Stevens, 4 Hare, 193, 194; Reaihy. Sail, 4Taunt., 326; Mauran v. Ciarle, 3 Paige, 373: Bradley v. Boot, 5 id., 632; Morton v. Saylor, 1 Hill, N. Y., 583; Mandeville v. Welch, 5 Wheat., 277.
    In view of the passage of the act excluding the claimants as witnesses, and of the decision of this court in Cotes’ Case, ((3-0. 01. R., 64,) which precludes the consideration of the doctrine of equitable assignment, we also submit:
    
      I. This is not a sale by Lippman to the claimants, and 'in-wolves none- of the questions therefore which arise under the .statute of frauds, as' to what will constitute a sale, an acceptance, or a delivery. It is a case in which ¿v principal instructs his agent and debtor, upon the arising of a possible emergency," to purchase property for him with the amount which the agent •owes, for moneys collected by him, for goods which had been sold to him, for advances made to him, and for obligations of his, assumed by the principal.
    II. The claimants gave him authority to do what he did in anticipation of the possibility of such a state of things arising as actually occurred; and if they had not, they have ratified the act, which ratification reverts back, and is equivalent to a previous permission or command. Omnis ratihabitio retrotra-hitur et mandato acguiparatur. Go. Litt., 207; Wingate, 485; Hagedorn v. Oliverson, 2 Maulé é Selw. B., p. 485; Story on Contracts, § 161; Cornell v. Bowdrey, 4 Monroe, O. R., 392; Broom’s Maxims, pp. 344, 345; Billow v. Hyde, 1 Atk., 128; Wilson v. Boulter, 2 Str., 859; Smith v. Hodgson, 4 T. R., 211; Coke Litt., 258 a; Paley on Agency, 345. The evidence of the authority is ample.
    III. It was not merely an intention to purchase it for the claimants, but an intention carried out and consummated by .acts. By these acts Lippman was concluded, and could not thereafter, if he would, contest the claimants’ right and title to the property. (Haioes v. Watson, 2 B.. & Cres., 540; Roberts v. Ogilby, 9 Price, 269; Massey v. Davis, 2 Yes. jr., 317; Stonard v. Dunkin, 2 Camp., 344; Sellet v. Hill, 2 C. & M., ■536; Beaumont v. Boultbee, 5 Yes., 485; 7 id., 599; Dixon v. Hammond, 3 B. & Aid., 310; Paley on Agency, 51 55.)
    There was an ample consideration on the part of the claimants, for the purchase, in the existing indebtedness, and in their assuming to pay and paying his notes.
    IY. The purchase of the cotton for the claimants vested m them the right to the property, which draws after it the possession, (2 Saunders’ R., 47, n. 1,) for the right to personal property may be acquired, and vest absolutely in a party, though he never had the -actual possession. Buller’s Nisi Prius, 35; Noys’ Maxims, e. 46; McGombe v. Davis, 6 East., 538; Hindv. WMtehouse, 7 id., 571; Barrow v. Goles, 3 Camp., 92; Wade v. 
      Mácauley, 4 T. B., 490; Fragano v. Long, 4 B. and Ores., 214 ; Blackburn on Sale, 198, 221; Paley on Agency, 347, 348.
    V. He dicl no act, after the purchase of the cotton, to alter, vary, change, or impair in any way the claimants’ right of 'property in it. If, after having purchased it for the claimants with the money of theirs which he had collected and with what he owed them, he had afterward sold it at an enhanced price, with the view of applying the gain to himself, he could be compelled to account to them for the whole amount he had received. Massey v. Davis, 2 Yes. jr., 318; Beaumont v. Bolibee, 5 id., 485, 7 id., 608; Diplock v. Blackburn, 3 Camp., 43; Paley on Agency, pp. 51 to 56.
    YI. If there had been no capture, and the cotton while it was upon storage had been destroyed by fire, could there be any doubt but that the law would hold that it was then at the claimants’ risk? Would it be any answer that they never had the actual possession? Bugg v. Minett, 11 East. B., 210; /Simmons v. Sioift, 5 B. & Ores., 857; Straeey v. Deey, 4 T. B., 361, note c; Ooit v. Hotiston, 3 Johns. Oases, 243, and the remarks upon it in 19 Wend., 517, 518; Hodgson v. Anderson, 3 B. &. Ores., 842; Tatlock v. Harris, 3 T. B., 180, per Buller, -J.; Simon v. Metiser, 1 Win. Bl. 601, j>er Mansfield, O. J.; Hind v. Whitehouse, 7 East., 558; Walley v. Montgomery, 3 id., 585; Philmore v. Barry, 1 Gamp., 513; Drummond v. Woods, 2 Cai.,. 310; Smith’s Law of Contracts, 279, 280, 281; Story on Contracts, §§ 978 and 138.)
    YII. It is well settled that a debtor may in good faith, with the assent of his creditor, specifically appropriate property to the creditor in payment of an indebtedness, and that when the property is distinguished and set apart for such a purpose, or put upon its transit, or an order is given to the creditor for it, or any other act is done by the debtor, showing that he has. carried out and given effect to his intention, and has done nothing to recall or reconsider the act, the property passes at once to the creditor, the right to the possession is in him, and he may maintain trover for it. Ogle v. Atchison, 5 Taunt., 597; Mitchell v. Dies, 1 A. & Ellis, 388; Fowler v. Downs, 1 Bos. & 1\, 47; Yerbue v. Sewell, 4 Camp., 31; Anderson v. Scott, 1 id., 235, note; Hodgson v. Le Bret, id., 232; Bryan v. Mix, 4 M. and Welsh., 775; Anderson v. Clark, 2 Bing'., 20; Mason v. LAchbarrow, per Lord Loughborough, 1 H. Bl., 365, 368; Bignell v. Bilis, 5 M. & By., 165; Bragano v. Long, 4 B. & Ores., 219; Phillips v. Affalo, 4 M. & Gra., 844; Ooit v. Houston, 3 Johns. Oases, 243, and the remarks upon it in 19 Wendl., 517, 518; Wilkes v. Ferris, 5 Johns., 325; .Steward y. Hoffm, 20 Verm., 144; Lord v. Bishop, 18 id., 141; Be Wolf y. Q-ardiner, 12 Gush., 19; Ashmead v. Borie, 10c Barr., 104.
    VIII. What Lippman did in distinguishing, marking, and. storing the cotton, with the prior and subsequent conduct of the claimants, would, even if that question had been involved, have been sufficient to establish a delivery and acceptance, under the statute of frauds. Bodsley v. Varley, 12 Ad. & Ellis, 632; Blmore v. Stone, 1 Taunt., 458; Garter v. Touissant,. 3 B. & Aid., 855; Anderson v. Seott, 1 Camp., 235, note; Philmore v. Barry, id., 513; Hussey v. Mangles, id., 452.
    IX. A loyal citizen of a loyal State may accept the beneficial acts of an agency -in the insurrectionary States, and what was done by Lippman, being done exclusively within the belligerent territory, and in pursuance of instructions received before the war, was no infraction of the rule which, prohibits commercial intercourse in time, of war. Mayer’s Case, 3 0. 01., B., 249; Grosmeyer’s Case, Dec. Term, 1868; Conn v. Penn., 1 Peters’ 0. O. B., 496; Ward v. Smith, 7 Wall. B., 452; Beniston v. Irnbrie, 3 Wash. O. C. B., 390; Paul v.Christie, 4 Har. & McHen., 161; Paley on Agency, 343, and see previous points I, II, III, IV.
    
      Mr. B.-S. Hale, special counsel of the Treasury, for the defendants.
    I. The legal title to the cotton in question was at the time-of the seizure in Lippman and not in the claimants.
    1. No authority ivas ever given by the claimants to Lippman to purchase cotton as the agent of the claimants, vesting title to the same in them, and thereby paying and discharging his indebtedness to them. Such authority is indispensable to the-vesting of title in the claimants.
    The only evidence on this subject is that of Lippman himself. The court will notice that on his original examination in December, 1S67, Lippman went through his entire narration of the interviews and conversation between himself and the claimants, without suggesting any such authority or pretence of it. T-Tis promise to the claimants, as there stated, was- simply that he “ would pay his notes,” “ would send them the money,” “ would remit as fast as he could,” &c.
    2. The acts of Lippman, as proved, show no such vesting of the legal title in the claimants; no such payment of his indebtedness to them; no such change of his character from that of debtor to agent.
    3. The language of Lippman, as disclosed by his own testimony and that of other witnesses in the cause, clearly indicates-his own idea, not that he had paid his debt to the claimants by the purchase of the cotton in question for them and as thier agent, but that he had provided a fund merely from which they were ultimately to be paid.
    II. Conceding to the transaction the character claimed for it by the claimants, as a purchase pending the war in a rebel district for the claimants, as principals, residing in a northern city, the transaction was illegal under the non-iutercourse acts and the laws of war.
    This point is not discussed here, this court having in two or the three cases held otherwise.
    III. The petition was filed 21st June, 1867; the defendants insist that it is barred, and that the court has no jurisdiction, this date being more than two years after the suppression of the rebellion. •
    IY. One hundred and ten bales of the cotton in question was bought in November and December, 1864, of J. McMahon & Co., and H. C. Freeman, residents of Savannah, whose loyalty is not proved. It is Submitted that under the act of July 17, 1862, no valid title could be derived from them.
    Y. The record of the evidence introduced by the defendants conclusively disproves Lippmam’s pretence of loyalty. This is perhaps immaterial in the aspect of the case claimed by the claimants’ treating Lippman as their agent merely; but the evidence is material, as showing a controlling reason why this action is brought in the name of the claimants rather than in that of Lippman; and is also claimed by the defendants as invalidating, under the act of 17th July, 1862, the title of the claimants derived from Lippman, should it be sought to be upheld in that .view.
   Nott, J.,

delivered tbe opinion of the court:

This is an action brought under th*e “ Abandoned or captured property act’’ to recover the proceeds of nine hundred and seventy-four bales of cotton captured at Savannah; which ];>roceeds, it is alleged, amount to $187,574 80.

Before considering the merits of the case, the court wishes to notice an implied censure of the special counsel of the Treasury, which fell from one of the counsel of the claimants — a censure which has been repeated of late in several actions and in different forms. It was said that this is an action of merits so apparent and so just, that the honor of the government requires that no defence whatever should be interposed, and the counsel of the defendants should appear merely to say that he consents' to the claimants’ recovery. It has also been intimated in this, as in other actions, that subjecting the claimants to the delay and trouble of prosecuting a suit at all for the recovery of the proceeds of their own property, is a hardship and injustice ■unworthy of and dishonorable to the government.

Noticing the second remark first, we observe that we are ■aware of no other government which, after a great civil war, has extended a like privilege to voluntary residents within the insurgent, districts, nor one which has so carefully guarded the rights of its loyal adherents (who, by the ordinary doctrine, were held to be enemies) as to secure to them a judicial investigation founded upon such simple grounds as loyalty, ownership, and a right to the proceeds. In many of these cases, as in this, the delay has bben largely of the claimants’ own choosing, they waiting till their rights were well-nigh lapsed and barred under the statute. In all of them there has been an ■unavoidable vexation arising from the imperfect mean s of defence given to the former solicitors of the court, and to the changes that have taken place among the law officers of the government. But the only injustice, if any, observable is that the Secretary of the Treasury was not compelled to invest the proceeds “for whom it may concern,” so that through these years of litigation a loyal owner would be accumulating some measure of recompense.

As to the other ground of censure, we have before this had •occasion to disapprove of precisely what the law officers of the government are blamed for not doing now, and to remind some of their predecessors that this court cannot render judgment upon the admission of counsel nor of any officer of the government, and that their ’business is neither to adjudge nor to yield, but to defend the legal rights of the United States. That duty which counsel owes alike to client and to the administration of justice in all cases and in all courts — to interpose iu> technical objection nor factious delay to a fair trial upon the leg’al merits; to draw his own deductions from the evidence, but not to falsify it; to adduce authorities which may but remotely affect his case, yet not to misrepresent them; to present fully and fearlessly his own partial estimate of the measure of legal justice which should be awarded: this duty the special counsel of the Treasury, in this particular case, appears to us to have scrupulously performed.

The loyalty of the claimants is amply proven. They have-called to attest it their business friends and associates, the-mayor of the city, the collector of the port, and their own em-ployés. It is due to them that its character be stamped upon the record of this case, and the testimony of a single witness will sufficiently describe it:

“I know the fact that the firm of Bernheimer Brothers were loyal throughout the war. Mr. Simeon Bernheimer, one of the claimants with Daniel Devlin, and one of the ñrm of Brooks Brothers, acted on a committee which raised a large amount of money for the Sanitary Fair held in this city during the war— what was known as the great Sanitary Fair; of this amount the firm of Bernheimer Brothers were among the largest contributors. I know that in the beginning of the war they sent a check, unsolicited, to the treasurer of some organization connected with the raising and equipment of regiments — I think it was the NationalDefence Committee. I know that when the call was made for men, Mr. Isaac Bernheimer collected all the clerks and men employed in the store, (from sixty to seventy men;) he called them all together and made a very patriotic speech to them, exhorting them to enlist and assist in saving their country, at the same time promising that all such as should enlist would receive their wages or salary for the ensuing three months. The account of this action, on the part of Bernheimer Brothers, appeared the day following in one of the daily papers-in the city; I have read it there; I heard it was copied into other papers and commented on by them; the notice stated the-fact tts JL'have stated it, and wound up by calling attention to it as an example for others to follow. We lost customers in consequence of the well-known loyalty of the firm; we refused to sell goods for cash to persons whom we had reason to suspect sympathized with the rebellion, and that was the uniform course. When the call was made, and after Mr. Bernheimer’s address, six or seven of the men promptly responded, and volunteered and wont to the war; their wages were either paid to their families or were added to their accounts and paid to them afterward; one of the men was badly wounded, and was supported by the firm for a considerable time after his return, and one or two who went Avere reengaged after their return; all were re-engaged who presented themselves at the store after their return; thej' a-pplied to me in most cases. I know the fact of the payment of wages to these men, because I was the principal book-keeper and cashier, and no cash was paid out without my knowledge.”

The claimants’loyalty, therefore, assumed that form of active patriotism which is entitled to the commendation of every tribunal wherein it is properly brought in question.

The case turns upon the single point of ownership. The question involved is the right of a northern creditor, or principal, to acquire personal property during -the pendency of the rebellion, through his southern debtor, or agent, without express authority given before purchase, and without express ratification made before capture.

The court acknowledges the aid of the learned counsel upon both sides, in whose arguments seem to have been exhausted all the analogies of mercantile law; so that all which hitherto has been said before this court, and all, as it appears to ns, that could be said upon this branch of the law, has been summed up in the masterly discussion of the case.

The position of the court upon this form of this question of ownership, within the meaning of the “ Abandoned or captured property act,” may be best stated in a few negative propositions:

1. We do not deem the defendants to stand in the place of attaching creditors, who have levied upon property in the hands of a debtor; for the reason that the defendants had no preexisting demand or equity against the property of the holder, and that all of their legal rights sprang out of, and were limited by capture.

2. We do not deem, the defendants to have acquired by capture the unquestionable rights of a purchaser in good faith for a valuable consideration; for the reason that the defendants parted with nothing when they acquired the property, nor drew to themselves, by value given, the equity which courts are ever ready to maintain.

3. We do not deem the principal, or creditor, in a northern State, and the agent, or debtor, within the insurrection ary district are to be held to the requirements as to purchase and sale which the common law exacts, in favor of third persons, from such parties iu times of peace; for the reason that such requirements in times of war amount to impossibilities, and, if exacted, would prevent the remedial intent of the statute from reaching almost every claimant coming’ from a loyal State.

To illustrate our meaning more fully as to this case: In times of peace, Lippman might have telegraphed from Savannah for instructions,'and the claimants might have sent from New York directions on the same day. Lippman might have reported his purchase by mail, and the claimants might have returned their ratification within a single week. Lippman might have shipped the cotton to the claimants, and taken the bill of lading in their name, and proclaimed to all the world that it was theirs. In this past time of civil war, the debtor could do none of these things save the last, and that would have been a virtual betrayal of the property to the rebel government. The conditions laid upon the parties differed in almost all things from those of the ordinary debtor and creditor, and the analogy drawn from the law-merchant therefore fails.

The legal truth is, that these abandoned and captured property cases, in this particular, are without precedent, and, to a certain extent, must be determined by rules and principles of their own. The legal position of the defendants is complex and exceedingly difficult to be defined. As against the loyal claimant, they are but finders, holding the found property under an implied trust, and disclaiming all right or interest in the proceeds on their own behalf. As regards the disloyal owner, they are successors, acquiring by capture an absolute title to the property, and succeeding to all the equities and interests which he then possessed.

The previous decisions of this court fall into two consistent classes, wliicb hare found best expression in the cases of Grossmeyer and of Bramhall, (4 C. Cls. R. p. 1, p. 51.)

1. Where the southern debtor, or agent, has reported the property at the time of capture as his northern creditor’s, or principal’s, where he has separated it from his own property, and consistently held it to await capture, exercising over it the fewest xiossible acts of ownership,, and notifying the creditor of his purchase whenever an opportunity has enabled him so to do, there we have uniformly held- the creditor, or principal to have acquired an ownership within the true remedial intent of the law.

2. Where the debtor at the time of capture has reported the captured property as his own, where he has previously treated it as such, and the ownership of the northern creditor has rested exclusively within the debtor’s breast, so that this calling it another’s might be a mere afterthought to defeat the lawful effect of the capture, there we have uniformly held the debtor to be the owner, and the pretended transfer in fraud of the act.

Excluding the testimony of Lippman, how stand the facts in this case "1

1. At the moment of capture, Lippman reported the cotton to the captors as the property of the claimants. It was received by them and entered as such on the registration book of captured cotton.

2. This cotton so reported by Lippman he had purchased as early as 1861 and 1862; he had stored it with third persons for long storage j he had kept it distinct from other cotton in which he had dealt largely, buying and selling.

3. While concealing the claimants’ alleged ownership from the public and carefully hiding it from the Confederate authorities, Lippman told the warehouseman who held the greater part of it, and with whom he was on terms of friendship and confidence, 11 that it was purchased for Bernheimer Brothers ; that it belonged to them and that it was their cotton.” He told his family so, and a friend who wished to purchase it, and he marked the cotton with the claimants’ initials.

4. At every opx>ortunity that was offered him he sent out word to the claimants of his purchase for them — by his son in 1862; by a nephew in 1863; by a friend in October, 1864; by another nephew in December following. The messages, as delivered to the claimants, varied. That by the son was That utJie cotton liad been bought for them, anti that they should secure it.” That by the nephew was that£lhe had bought cotton for them“ that he had bought cotton enough to secure them — to pay what he owed .them.” That by the friend was simply that “he had bought cotton for them.'” All of these messages were* delivered to the claimants before capture, and were received by them in silence •, that is to say, they expressed neither a ratification nor a disavowal.

5. For many years before the war, Lippman and the claimants had held most intimate business relations, each party acting as the agent and business 'friend of the other. After the war had separated them, the claimants continued to take up and pay his notes as they matured to the amount of $22,133 98, and until his indebtedness reached the sum of $37,494 04 •, and Lippman collected of their southern debts during the saíne years wherein he bought the cotton, (1801-02,) $30,000. These mutual accounts still stand open between the parties, unliquid-ated and unsettled.

These five groups of facts point to an. agency rather than an interest in Lippman, and unless there be something in his deposition to the contrary, we think that at this point in the case it should be received in evidence.

When the testimony of Lippman is admitted, it adds nothing to the foregoing facts except that it establishes the point of a general authority to buy and invest. At a brief and hurried interview in February, 1861, and. with the subject of the impending war before them, the senior partner of the house of Bernheimer said to Lippman: “Mind, we have got a great deal of money out in the South, in Georgia, South Carolina, Florida, and Alabama, and I wish you to collect money for us wherever it is owing to us. You will act. to the best of your ability, and you must do so; and don’t spare any traveling expenses, if necessary. If you cannot make a remittance, in case any trouble should arise — which I don’t think will, as I am of the same opinion that you are, (however, we don’t know what a deranged people may do) — then you make such investments in lohatever you think best and safest.” Lippman, on his part, begged that the claimants “would go on and redeem his notes as usual.” The parties separated, not to meet again till the war was past. lu tlie mean time, eacb seems to have kept faith, with, the other.

As Lippman has been examined and cross-examined in the ease repeatedly and at great length, it is proper'to remark that, while his testimony shows a somewhat confused state of mind as to the legal rights and liabilities subsisting' between-the claimants and himself, and doubts as to whether the net proceeds of the cotton shall be credited to him by the claimants or only the purchase-money which he paid, yet still it consistentlj- clings to the one idea that this was the claimants’ cotton; that thej~ could do what they pleased with it, and allow him what they chose. “The seven hundred and twenty bales,” he says, “stored with Wade were bought for Bernheimer Brothers, and all the rest of the cotton claimed in this, suit.” “I left that seven hundred and twenty bales stored with Wade, as the property of Bernheimer Brothers, until the cotton was taken by the United States authorities.” “The mark<^>, in the receipt, I directed to be put on. The B meant Bern-heimer.” “The three hundred bales stored with Yonge was also bought for Bernheimer Brothers.” “ It was all kept by me on storage from the time of its purchase for Bernheimer Brothers. I bought it, intending it to be the property of Bern-heimer Brothers, and ITceptit exclusively for them; never parted with a bale of it, nor sold a bale of it.” “The mark <B and B’ on the cotton in my store was put on when it was brought there. I put it on because I considered it was the property of Bern-heimer Brothers. It made the fact more evident that it belonged to them.” And upon his cross-examination: “Bernheimer Brothers have never given me any receipt on account of this •cotton, or its valuation. They have never given me any discharge on account of my indebtedness to them to the amount of this cotton or its value, or to any amount. The account between us stands just as it did. There has been no understanding between them and me that, in the event of their failure to collect this claim, my indebtedness to them shall stand as it did. Nothing has been said on that subject between them and me.”

We remark here that there is no proof in the case tending to show that this cotton was taken as a payment from the debtor to the creditor. The case depends on its having been the claimants’ cotton absolutely, under the power given to Lipp-man to invest, followed by bis collection of tbeir money, by the-separate storage of the property, by the initial marks put upon it, by bis repeated messages to the claimants, by the declarations made to third persons, and by bis reporting it as theirs to the captors.

. ¥e remark, also, that there is no evidence to show that the moneys collected by Lippman were kept separated from his. own funds, and that, in fact, they were simply credited to the claimants upon his books. And we note, also, that neither the amount nor the value of his investments in the cotton in question are shown; that from the destruction of his books and papers by the Confederate army they cannot be; and that the net proceeds sought to be recovered in this action largely exceed his indebtedness to the claimants.

It is not necessary to hold in this case that when Lippman reported the cotton to the captors as the property of the claimants, it was as against himself an irrevocable act. Yet it appears that he had held that cotton through years lengthened by anxiety, adversity, and peril, always retaining it for some remote object, which was manifestly capture. When that remote object ivas attained, Lippman renounced all interest in the property as his own. It was the first moment that he could publicly and lawfully avow the ownership of the claimants, and he did so then. The avowal was coincident with the capture of the city, and took effect the instant that the law prevailed.. It evidenced the fact that the property had been held for the claimants, and hence that it had been bought for them.

Reviewing the evidence carefully, the personal dangers by which Lippman was beset, the risks which he ran, the rebel confiscation act on the one hand, the threatenings of a mob on the other, the difficulties of doing, the suspicions from leaving undone, the disasters which wrecked his own fortune, the tenacity with which he clung to the claimants’ rights, our conclusion is that Lippman did all that it was possible for human integrity to do toward vesting this property in his principals. His steadfast adherence to their interests, and his unwavering mercantile faith, were more than commendable — were noble.

In decreeing tbis property to have been the claimants’ from the time of its purchase, it is needless to say we lay aside all idea of a remaining interest or lawful equity in Lippman. The condition of his and the claimants’ affairs ivas correctly stated by himself in his return to the Confederate receiver of northern confiscated debts, viz, that he owed them and that they owed him. That condition of their affairs will not be affected by any result in this suit. With the honorary obligations of merchants we have nothing to do. The legal rights of the parties fix and determine their interests. A recovery in this action will neither pay Lippman’s debt nor relieve him from his responsibilities. He gains nothing in contemplation of law by the claimants’ success, and whatever he may hope for goes only to his credibility. The case, in our judgment, does not depend upon his testimony, and the same result was reached before we admitted it in evidence. It was admitted rather that the whole truth might be more clearly displayed than from any doubt as to its necessity.

In discussing the main question in this case, we have spoken as though there were but oue parcel of cotton, or as if all depended upon precisely the same testimony. There are, in fact, no less than five, all differing somewhat as to certain minor points, perhaps essential.

1. There are 477 bales of cotton purchased in 1861 and 1862, whereof the distinctive fact is, that at the time of storage Lippman notified the warehouseman, Mr. Wade, that it was the property of the claimants.

2. There are 27 bales, also purchased in 1862, of which Lipp-man told both the vendor and warehouseman, Mr. Meyer, that it was bought and stored for the claimants.

3. There are 254 bales, also purchased in 1861 and 1862, stored with third parties, and marked with the claimants’initial, but without notice to the warehousemen of the real ownership.

4. There are 110 bales, which are in the same plight as the last, except that they were not purchased till 1864,- 41 on the 16th November, and 69 on the 7th December.

5. There are 76 bales, whereof the time of purchase is not shown, which were stored in Lippman’s own warehouse. Of these he declared to his family that they belonged to the claimants, and, like the others, he marked then with the claimants’ initials and reported them as their property.

It appears that of all the cotton stored, 727 bales were sea-island, and that of the 944 bales captured 529 were sea-island, and 407 were upland, leaving eight bales missing.

The conclusion in this case was reached in the first instance without reference to the testimony of Lippmau, as has been said, and also without inquiry as to his loyalty. But the claimants, it is but just to add, hare very carefully made the loyalty of Lippman a subject of proof. On this behalf appears a constant series of consistent acts, such as opposing' secession, discouraging enlistments, helping men to flee the conscription, and sending every male member of his own family into the United States lines. On behalf of the defendants there is but a single item of opposing testimony, and it consists of Lippman’s application for a pardon. The application was made by two petitions, which allege that he held no office, civil or military; that he never bore arms; and that, “being of the opinion that he did not come within any of the exceptions of the proclamation of your excellency of the 29th day of May, 1865, he took the oatli of amnesty prescribed by the proclamation; but, having afterward learned that he should obtain a pardon, he forwarded, through the provisional governor of Georgia, his application, with said original oath annexed, but which he learns has never been received; and that he has carefully examined the exceptions of the proclamations of the 29th May, 1865, and that he is obnoxious to the thirteenth of said exceptions, and none other.”

We are fully satisfied of Lippman’s loyalty, and that it is proven affirmatively in the words of the statute that lie “did consistently adhere to the United States” during the rebellion. But whether his application for a pardon to free him from the guilt of treason may not in law be conclusive evidence of treason which no amount of testimony can overthrow, we do not deem ourselves called upon now to decide.

The judgment of the court is that the claimants réeover the net proceeds now in the Treasury of 529 bales of sea-island cotton, captured at Savannah, being $220 66 a bale, and of 407 bales of upland cotton, being $167 52 a bale; amounting, in the aggregate, to $184,909 78. 
      
       In this case the claimants’ counsel expressly disclaimed a right to recover the amount deducted by the Treasury for the cotton tax.
     