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Dunlevy v. Mowry.

R. M. Corwine, for plaintiff.

Burnett & Follett, for defendant.

CHARGE OF THE COURT:

The material facts touching the controversy between these parties are not in dispute. These facts seem to be, in substance, that in the year 1859, the plaintiff was the holder and owner of twenty-one thousand dollar bonds of the Covington and Lexington railroad, secured by the third mortgage on the road. The defendant, at the same time, was the owner of sixty-one bonds of $1,000 each, which he desired to sell. The plaintiff transferred to the defendant the twenty-one bonds held by him, with the understanding, as he claims, that the defendant was to account to him for the amount for which the bonds should be sold.

The plaintiff alleges that in September, 1859, the defendant made a sale of eighty-one bonds, including the twentyone transferred by him, at the rate of fifty cents on the dollar; and that defendant reported the sale at only thirtyseven and a half cents on the dollar, at which rate he settled with the plaintiff.

The claim in this action is for the difference between fifty and thirty-seven and a half cents on the dollar on the twenty-one bonds transferred by the plaintiff to the defendant. The defendant has filed the plea of the general issue, which denies the cause of action, and also a plea of the statute of limitations.

Both the parties have testified as witnesses in the case, and the only question for the decision of the jury is, whether from the facts in evidence there was an absolute sale of the twenty-one bonds to the defendant at the rate he might be able to effect a sale in the market, or whether they were put into his hands, as the agent or bailee of the plaintiff, with the implied understanding that the defendant was to account for the proceeds at the rate at which a fair sale

Dunlevy v. Mowry.

should be effected. The jury have heard the evidence adduced by the parties bearing upon this issue. It is not the intention of the court to detain the jury by any detailed statement of the facts in proof. They will decide for themselves upon the weight and conclusiveness of the evidence. And it will be only necessary for the court to remind the jury, that if, as claimed by the defendant, there was a positive sale by the plaintiff of the twenty-one bonds at a price agreed on, the absolute property in the bonds was thereby vested in the defendant, and he had a perfect right to sell them at the best price he could procure, and he can not be held liable to the plaintiff beyond the rate agreed to be paid. If he purchased at thirty-seven and a half for the dollar and sold at fifty cents, the advance or profit belongs to him. On the other hand, if the jury find that without any price named or agreed on when the twenty-one bonds were delivered to the defendant, he took them as the agent or bailee of the plaintiff, it is beyond dispute that he is bound to account for the actual price for which they were sold, subject only to a deduction for reasonable charges for commission. And here it is suggested as worthy of the consideration of the jury, whether the evidence of the defendant establishes the fact of an absolute sale of the bonds. If his statement was understood by the court, it was to the effect that the bonds were placed in his hands by the plaintiff to be disposed of on the same terms as his own. And if the jury find this to be the true character of this transaction, and that the bonds were sold at fifty cents on the dollar, and that the defendant accounted to the plaintiff at the rate of thirty-seven and a half cents on the dollar, it follows clearly as a legal result, that the defendant is liable to the plaintiff for the difference between those two rates.

It is not necessary to discuss the question arising on the plea of the statute of limitations, for the statute can not be held to commence running until the plaintiff was apprised of the fact that the bonds were sold at a higher rate than

United States v. Steamboat Henry C. Homeyer.

that at which the defendant accounted to the plaintiff. The claim for the difference, for which this action is brought, dates only from the time when the plaintiff became acquainted with the actual price for which the bonds were sold. The statute of Ohio fixes the bar at six years, but six years had not elapsed between that discovery and the commencement of this action. In this view, it is clear the plaintiff's claim is not barred.

(DISTRICT COURT.)

THE UNITED STATES v. STEAMBOAT HENRY C. HOMEYER AND CARGO.

The policy of the legislation of Congress and the action of the executive department of the United States, in reference to commercial intercourse between the loyal and insurgent States prior to March 31, 1863, was to prohibit trade with the insurrectionary States, not only in all articles contraband of war in the strict sense of the term, but all other articles which could be used by the insurgents to strengthen and support the rebellion.

Under rule 20 of the regulations of the treasury department of September 11, 1863, loyal persons were authorized to obtain permits to purchase for money, other than gold or silver, any of the products of the country within the lines of national military occupation, except when prohibited by order of the general commanding the department or other special military order, and to transport said products to market.

Dry goods, groceries, and medicines, sold to the inhabitants along the Mississippi river, in the year 1864, were not articles contraband of war by the legislation of Congress or the regulations of the treasury department, or by the law of nations.

A steamboat having a permit from a special treasury agent to engage in purchasing cotton along the borders of the Mississippi river, within the limits of the States of Mississippi and Arkansas, was fully authorized in May, 1864, under the statutes of the United States, the President's proclamations and the instructions of the secretary of the treasury, to make such purchases, and the forfeiture of said boat and her cargo was not incurred by engaging in such trade.

United States v. Steamboat Henry C. Homeyer.

District Attorney, for United States.

Lincoln, Smith & Warnock, for claimants.

OPINION OF THE COURT:

This is a libel of information against the steamboat Henry C. Homeyer and cargo, including some nineteen thousand dollars in United States treasury notes. The grounds on which a decree of condemnation is claimed, are stated in different forms in the libel, not necessary to be minutely noticed. They embrace substantially the charge that the steamboat was engaged in illicit trade and commerce in violation of law and the regulations of the secretary of the treasury: 1. In having on board goods and merchandise intended for sale and barter to rebels at places and within States in rebellion, which were contraband of war, and designed to give aid and comfort to the rebellion; 2. That the employes and agents of the owners of the boat purchased cotton from persons and in States in rebellion, and attempted to transport the same to a loyal State, without lawful authority.

Edward Parkman and Jesse W. Page, a mercantile firm at Memphis, in the State of Tennessee, have intervened as claimants of the boat and cargo, and have filed their answer, denying, in general terms, all the allegations of the libel charging illicit or unlawful trade or commerce.

The facts, in outline, are that the steamer left the port of Memphis, in April, 1864, and proceeded to Vicksburg, where purchases of various articles of merchandise were made by the agent of Parkman & Page for barter and sale in procuring cotton along the banks of the Mississippi river, in the States of Mississippi and Arkansas, then in rebellion against the United States. These purchases were made of different persons, and amounted to $7,917.71. The articles consisted chiefly of dry goods, groceries, boots and shoes, and medicines. The bills of these articles are exhibited in evidence, each bill indorsed by Milton Kennedy, as local

United States v. Steamboat Henry C. Homeyer.

special agent of the treasury department at Vicksburg, as approved by him. In connection with these bills of purchase is a permit, signed by said Kennedy, in his official capacity, in which the articles are designated as family supplies, and are permitted to go to the States of Mississippi and Arkansas "to be exchanged for cotton with loyal citizens, subject to the approval of the commanders of gunboats." It is also a fact in the case, that Parkman & Page had furnished their agent with, and placed on board the steamer, $25,000 in United States currency, intended to be used in the purchase of cotton. The steamer proceeded to several points on the Arkansas side of the Mississippi, and had purchased one hundred and nineteen bales of cotton, when the boat and cargo, including $19,000 in greenbacks, were seized under a military order, as engaged in unlawful trade with rebels, to be libelled and proceeded against as forfeited to the United States.

The question for the decision of the court is, whether this property is forfeited under the acts of Congress and the treasury regulations applicable to the transactions in question.

The first legislation on the subject of commercial intercourse with States and persons in rebellion requiring the notice of the court, is found in section 5 of the act of Congress of July 13, 1861. It provides, that when the President by his proclamation shall have declared the inhabitants of any State, or any part of a State in insurrection against the United States, "all commercial intercourse by and between the same and citizens thereof and the citizens of the rest of the United States shall cease and be unlawful,

and all goods and chattels, wares and merchandise, coming from said State or section into other parts of the United States, and all proceeding to such State or section by land or water, shall, together with the vessel or vehicle conveying the same, be forfeited to the United States provided, however, that the President may, in his discretion, license and permit commercial intercourse with

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