Opinion of the court.

such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section."

The seventh section of the act directs the proceedings to be instituted for the condemnation and sale of the property seized.

If the devise of Mrs. Hunter can be brought within the language of this last section, it must be because a devise is embraced within the terms "sales, transfers, and conveyances;" and because her "aiding and abetting" the rebellion, and her refusal to return to her allegiance to the United States, are legitimate and necessary inferences from her voluntary and continued residence within the Confederate lines, for there is no direct evidence on either of these latter points, nor any evidence tending to establish either of them except such voluntary residence. Assuming, however, that a devise is within the "sales, transfers, and conveyances" invalidated by the act, and that Mrs. Hunter is within the category of persons for whom the warning and proclamation of the President were intended, we are of the opinion that the invalidity declared is limited and not absolute; that it is only as against the United States that the "sales, transfers, and conveyances" of property liable to seizure are null and void; and that they are not void as between private persons, or against any other party than the United States.

The object of the provisions cited is manifest. It is declared, in express terms, to insure the speedy termination of the existing rebellion. The confiscation of the property of persons engaged in the rebellion, and the appropriation of it, or its proceeds, to the support of the army of the United States, were supposed to have a tendency to advance that object. The seizure of the property of particularly desig nated classes, and of others engaged in the rebellion, or aiding and abetting it, who should not heed the public warning and proclamation of the President, was therefore directed, as also the institution of proceedings required in the courts of the United States for its condemnation and sale.

It was to prevent these provisions from being evaded by

Opinion of the court.

the parties whose property was liable to seizure that "sales, transfers, and conveyances" of the property were declared invalid. They were null and void as against the belligerent or sovereign right of the United States to appropriate and use the property for the purpose designated, but in no other respect, and not as against any other party. Neither the object sought, nor the language of the act, requires any greater extension of the terms used. The United States. were the only party who could institute the proceedings for condemnation; the offence for which such condemnation was decreed was against the United States, and the property condemned, or its proceeds, went to their sole use. They alone could, therefore, be affected by the sales.

Any other construction would impute to the United States a severity in their legislation entirely foreign to their his tory. No people can exist without exchanging commodities. There must be buying and selling and exchanging in every community, or the greater part of its inhabitants would have neither food nor raiment. And yet the argument of the defendant, if good for anything, goes to this extent, that by the act of Congress "all sales, transfers, and conveyances" of property of the vast numbers engaged in the late rebellion against the United States, constituting the great majority of many towns, and cities, and even of several states, were utterly null and void; that even the commonest transactions of exchange in the daily life of these people were tainted with invalidity. It is difficult to conceive the misery which would follow from a legislative decree of this widesweeping character in any community, where its execution. was conceived to be possible, or confidence was reposed in its validity.

We do not notice that part of the instruction prayed which relates to the status of the plaintiff as an office-holder under the United States just previous to the commencement of the war, and subsequently taking office under the Confederate government, as it was not his property, the sale of which is assailed. If he was incapable of taking the devise, it was not from his participation in the rebellion, but because

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Opinion of the court.

the testatrix was incapable of passing her property by will under the act of Congress, a position which we have already shown to be untenable.

The second, and the only other prayer for instruction presented by the defendant, and refused by the court, which we can take notice of, is this: "That to enable the plaintiff to recover he must show that the certificate of redemption was forwarded to the Secretary of the Treasury, and the defendant repaid his purchase-money by a draft drawn or the Treasury of the United States." This prayer was based upon a misapprehension of the seventh section of the act of Congress of March 3d, 1865,* which provides that when a redemption is made the board of tax commissioners shall certify the fact to the Secretary of the Treasury, and the secretary shall repay the purchaser, by draft on the treasury, the principal and interest of the purchase-money; and that the purchaser shall deliver possession to the owner redeeming. These provisions only prescribe the duty both of the secretary and purchaser when the redemption is made, but they do not make the performance of the duty of the purchaser dependent upon the previous performance of the duty resting on the secretary. The act was intended for the benefit of the purchaser, to enable him to obtain the repayment of the purchase-money and interest thereon; but the validity of the redemption does not depend upon such repayment. That is a matter between the purchaser and the secretary, with which the owner or redemptioner has no

concern.

We find no error in the record, and the judgment of the Supreme Court of Appeals of Virginia must be, therefore, AFFIRMED.

Statement and opinion.

HANNAUER v. WOODRUFF.

Where, on a certificate of division from a Circuit Court, this court is equally divided in opinion, the case will be remitted to the court below for the purpose of enabling it to take such action as it may be advised.

ON a certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Arkansas. The case was thus:

Woodruff made and delivered to Hannauer, at Memphis, Tennessee, on the 22d of December, 1861, a promissory note, dated that day, for $3099, with interest.

The only consideration of this note was certain bonds issued by an ordinance of the convention which attempted to carry the State of Arkansas out of the Federal Union, by what is called the secession ordinance.

These bonds were issued for the purpose of supporting the war levied by the insurrectionary bodies then controlling the State of Arkansas against the Federal government, and were styled "War Bonds" on their face, and the purpose of their issue was well known to both parties to the note.

The bonds had at the time of the transaction a value not much below their par value on their face, say ten per cent., at Memphis and in Arkansas.

The war bonds received by Woodruff were not used, or intended to be used, by him in support of the war aforesaid. On these facts two questions of law arose on which the judges of the circuit were divided in opinion, to wit:

1st. Was the consideration of the note void on the ground of public policy, so that no action could be sustained on it in the Federal courts?

2d. If the bonds were a sufficient consideration to sustain the action, what was the measure of damages?

The case was submitted on a brief of Mr. Garland, for the plaintiff, Hannauer; no counsel appearing contra.

Mr. Justice NELSON announced the judgment of this

Statement of the case.

court, to the effect, that it being equally divided in opinion upon the questions, the case would be remitted to the court below for the purpose of enabling that court to take such action therein as it might be advised; this direction being in conformity, the learned justice observed, with the opinion of the court in Silliman v. The Hudson River Bridge Company.* ORDER ACCORDINGLY.

IN RE PASCHAL.

1. The attorney or solicitor, who is also counsel in a cause, has a lien on moneys collected therein for his fees and disbursements in the cause, and in any suit or proceeding brought to recover other moneys covered by the same retainer.

2. A motion to pay into court the moneys collected will not be granted, but the parties will be left to their action, if the attorney is guilty of no bad faith or improper conduct, and has a fair set-off against his client, which the latter refuses to allow.

3. A party has a general right to change his attorney, and a rule for that purpose will be granted, leaving to the attorney the advantage of any lien he may have on papers or moneys in his hands as security for his fees and disbursements.

THESE were two motions on George W. Paschal, an attorney and counsellor of this court, and as such lately representing the State of Texas in suits which it had here. The first motion being in the case of that State against White, Chiles and others (No. 4 on the original docket), already largely reported; the second, in the case of the same complainant against Peabody & Co. (No. 6 on that same docket), not yet in any way adjudged.

In the first of the cases the motion was for an order on Paschal to pay to the clerk of this court, for the benefit of the State of Texas, the sum of $47,325 in gold, alleged to have been received by him under the decree in the first of the two cases above mentioned. In the other (the suit

* 1 Black, 582.