In this case, as in the one related, the New York merchant went to Alexandria to look after his customers, and found them gone. After considerable inquiry, he found the clerk who had the keys, but the clerk said he had no authority from the owners to do anything, and would not so much as open the store to allow the creditor to look in. The merchant then called upon Judge Freese and told him the facts of the case. The Judge informed him that the court now had a regular course of procedure in these cases, and if he chose to pursue that course he could bring his case before the court. The merchant inquired what was the procedure? The Judge informed him that the first step was, for the party having a claim to make an affidavit as to its amount and its correctness—the same as in cases of attachment in ordinary courts; that thereupon the court issued an order, having the force of an attachment, to the Provost-Marshal, to take charge of the goods of the defendant until such time as the case could be heard—usually in one week from the day the attachment issued; that the plaintiff must then produce his original books of entry, or note, or other evidence of debt, and satisfy the court, beyond any possible doubt, that the debt is due and unpaid; that when this had been done—the defendant meanwhile, or any one for him, having, of course, full opportunity to make any defence within his power, if any he had to make—the court appoints three wholly disinterested persons to fix the value and set apart so much of the defendant's goods as would satisfy the claim of the plaintiff, with cost of transportation to a market, and costs of proceedings; that the three commissioners must then make report, with schedule of goods set apart, to the court; that the court carefully examines said report, and if found correct in all particulars, then issues an order to Provost-Marshal to deliver to plaintiff the goods so set apart; upon receipt of which the plaintiff executes receipt to Provost-Marshal for the goods, as in full liquidation of his claim against the defendant. The proceedings, the Judge said, were so plain that a child could understand them, and so open and straightforward, from first to last, that a mistake was scarcely possible.
The merchant expressed his delight at the mode of procedure, as detailed by the Judge, and said he was ready to make the preliminary affidavit at once, and in a week would return to Alexandria with his books and witnesses to substantiate his claim. The Judge drew the necessary affidavit; the merchant subscribed and swore thereto; the Provost-Marshal was sent for; the order for attaching the goods put into his hands; and within one hour from the time when the New York merchant entered the Judge's office, guards stood in front and at the rear of the building, to see that no goods were taken from the store-room. The young man who had the keys was then sent for, and told to write to his employers, and inform any friends of his employers who might still be in Alexandria, of just what had been done thus far, and that the court had appointed one week from that day to hear the case. If they, or any one for them, had any defence to make, they should be at the court-room at ten o'clock of that day and should then be heard. He thanked the Judge for his courtesy in sending for him, and for the timely notice given for defence, and was about to retire, when the Judge told him that he might hand the keys over to the Provost-Marshal until the case had been disposed of. This he at first refused to do, but a few words from the Judge satisfied him that wisdom was the better part of valor, when he took the keys from his pocket and handed them to the Marshal.
In one week the trial came on. The New York merchant, on behalf of his firm, appeared with his books and with the clerk who had sold and delivered the goods. The defendants were not present, but were represented by their clerk, by the secession lawyer of the city, heretofore spoken of, and by about a dozen other gentlemen, who were friends, if not relatives, of the absconded debtors. The plaintiff proved that the books before the court were the original books of entry of the firm of which he was a member. By his clerk he proved the sale and delivery of the goods, item by item, as charged upon the books. By himself he proved that the debt was now due, and that no part of it had ever been paid. The court then asked if there was any person present to make a defence in this case, if so, they would now be heard. The clerk then arose and said he "was instructed by the attorney of the firm to say, that while they had no formal defence to make in this case, yet they desired to enter their protest against the jurisdiction of this court, and to reserve to and for themselves whatever rights they might have under the laws of Virginia." He added, that he himself "was aware that the firm, of which he was formerly a clerk, had purchased goods of the New York firm represented in this case, and had no doubt that the amount they claimed was due them; but that it would have been wiser and more honorable in them to have waited until the war was over, when they would undoubtedly have been paid dollar for dollar." The court inquired if there was any other gentleman present who desired to offer any evidence, or say anything by way of defence in this case. There was no response.
The court then proceeded to give an opinion in the case, which occupied nearly an hour, and was listened to with almost breathless silence by the large audience present. In amount claimed, and in point of high standing, both as to the plaintiffs and defendants, it was the most important case of the kind yet brought before the court, and for the information of the general public, no less than for the parties immediately interested, the Judge thought it well to state the principles upon which the court acted, and their applicability to the case in hand. A reporter present wrote out the opinion, which, by request of the New York merchant, was published soon after in the New York Times, occupying over two columns of closely printed matter. As most of the principles enunciated in this opinion were the same as stated in the first case heretofore given, it is not necessary to repeat them here. In reply to the clerk's request "to reserve to and for themselves whatever rights they might have under the laws of Virginia," and to the opinion expressed by him that "the New York firm would have acted wiser and more honorable to have waited for their claim until the war was over," the court said:
"Of course, in this, as in every other case, the parties can and do reserve for themselves whatever rights they possess under the laws of Virginia, of which this city forms a part, and, if the rebellion succeeds, the parties reserving these rights will undoubtedly make the best use of them possible; but meanwhile the claimants, so far as this court can effect it, shall have a return of their own goods, or of others equal in value to their claim, and after that, if the debtors, through sequestration laws made by the Confederate Congress, or any laws now made or hereafter to be made by Virginia, can get the goods back or damages by way of reclamation, this court at least will have done its duty. With regard to the opinion expressed by the young gentleman, the court begs to differ with him. By his own confession portions of the goods have already been sent across the lines, and to that extent have contributed to the 'aid and comfort' of the enemies of this government, and had there been no claimants, no interference, there is no manner of doubt that every article in the store would, sooner or later, have gone the same way; and as to the debtors paying the claim after the war is over, if we may judge by what they and their chosen government have already done, there is no more probability of it than for the waters of Niagara Falls to run backwards. As the leap of the waters in that case is irrevocable, so is the leap from the fair haven of loyalty to the deep, dark chasm of disloyalty—once taken, there can be no hope of return." One other matter the court explained in this case, which was not explained in the first, namely, why the goods were not sold at public sale, and the money, instead of the goods, turned over to claimants. He said: "It will be observed that by the rules of procedure adopted in these cases, the court is quite as careful to protect the interests of debtors as of claimants. In ordinary actions for debt, in courts of common pleas, the goods, after being attached or levied upon, are put up at public sale and sold to the highest bidder, and the money received at such sales paid to claimants. In such cases it often happens that, even in a market, goods do not bring one-half and sometimes not one-fourth their real value, and the defendant of course has to suffer the loss. If the goods seized here were thus exposed to public sale, at this time, when two-thirds of its ordinary inhabitants have fled from the city, and when there is little or no market for anything outside of army stores, they would not bring one-fourth their cost; whereas the same goods taken to a market, will sell for about their original cost. Hence the rule in the proceedings whereby goods are assessed by three disinterested persons, and turned over to the claimants at the prices fixed by the commissioners. And the court begs to add—though not boastfully, since it only performs a duty in so doing—that, because of the absence of the defendants, doubly the care is taken that the full market value is fixed to each article turned over to the creditor; and that in every case the court carefully supervises the schedules, to see that no mistakes have been made.
"If the goods were sold at a public sale, the court could in no way control the price, and a debtor's goods might be sold for one-half or one-fourth of their real value; but by this procedure the debtor is sure to receive about the fair value of the goods. The fact that the debtor is absent (although a rebel to the government which this court in part represents) makes us all the more careful to see that he shall have exact justice; for, in all these cases, this court recognizes the principles so ably stated by Bouvier, by Blackburn, and by others who have written on the law of sales—1. That 'to constitute a sale, there must be a price, which is the consideration given for the purchase of a thing.' 2. That 'the price must be serious, or such a one as the seller intends to require to be paid to him. As to the quantum of the price, that is altogether immaterial, unless there has been fraud in the transaction.' 3. That 'the price must be certain and determined, but upon the maxim, id certum est quod reddi cerium potest, a sale may be valid, although it is agreed that the price of the thing sold shall be determined by a third person! 4. That 'the price must consist in a sum of money which the buyer agrees to pay to the seller; for, if it be paid in any other way, the contract is not a sale, but an exchange or barter. But it is only requisite that the agreement should be for a payment in money; in the sequel it may be changed, and the creditor may take goods in payment, and the contract will still be a sale. It is not requisite that the money should be paid down, either at the time of the sale or the delivery of the goods; it may be upon a credit, or payable at a future time. And, 5. That the consent of the contracting parties must be obtained; by which consent is meant an agreement to something proposed. It does not consist simply in a vague will to sell or to pay; it must bear on all the conditions which may be suggested by the circumstances of the case or imagined by the caprice of the contracting parties.'"
In this case, as in others, the court fixed upon the amount due the claimants, appointed three commissioners to select and assess values to goods to the amount of claim, supervised the report and schedule made, gave order to the Provost-Marshal to deliver the goods; all of which was done, and the New York merchant returned to his home, with the full conviction that in one city at least, and in one court at least, justice was administered without partiality, and without fear or favor of, or to, any one.
Not only was the Judge's decision in this case published, as heretofore stated, in the New York journals, but the newspapers all over the country had more or less to say about it editorially—some favorable and some unfavorable—the particulars of which and the results of which will be more fully stated in the next chapter.
