14 Ct. Cl. 13 | Ct. Cl. | 1878
Lead Opinion
delivered the opinion of the court:
On the 18th of February, 1863, the claimant was in possession of a plantation in Mississippi, on the river, between Vicksburg and the mouth of the Bed Biver. It had belonged to his testator, and had been left by the will in the occupancy of the executor. As executor, he was the owner of 168 bales of cotton then on the estate. On that day this cotton was seized by the naval forces of the United States for purposes of naval defense, and was taken to Johnson’s Landing, below Vicksburg, hauled across land to Young’s Landing, and there, by order of Admiral Porter, in command of the Mississippi squadron, was put on board the transport Bowena, together with 90 other bales.
On the 7th of March, Admiral Porter reported the capture of this cotton, as required by the Secretary’s general order of August 28,1862, and on the 28th of March the Secretary of the Navy instructed him, in reply, that property captured as “prize property” must be sent to prize courts for adjudication, and that the disposition of captured abandoned property was provided for by the then recent act of Congress, approved March 12, 1863.
On the 31st March or the 1st April the Bowena left Young’s Landing with the 258 bales of cotton, and arrived with them at
On the 9th of April, Captain Pennock lodged with the district attorney for the southern district of Illinois one information against the 258 bales, alleging that a part of it was seized “ at Wilson Mitchell’s Landing,” and that £cthe balance” (which included the claimant’s cotton) “was sent from the Tazoo River by Admiral Porter.”
On the 17th April the district attorney libeled all the cotton, alleging that the 258 bales had been seized at Wilson Mitchell’s Landing, and charging, first, that the seizure had been made for a violation of the non-intercourse act; and, second, that it had been made because the owner was in armed rebellion against the United States.
All the cotton was sold by order of court pendente lite. By proceedings not necessary to consider, the proceeds of the cotton of other owners were separated from the proceeds of the claimant’s cotton, and were distributed by order of court.
On the 11th of September an amendment to the libel was allowed on motion of the district attorney. Though the amendment is loosely drawn, we think it operated to strike out the allegation that all the cotton was seized at Wilson Mitchell’s Landing •, an allegation which was evidently untrue
On the 4th of November, 1863, a decree was entered that one-half the proceeds of the cotton should be paid into the Treasury, and that the other half should be paid to Captain Pennock as informer. Both payments were made in accordance with the decree. Subsequently, much the larger part of the informer’s half found its way into the Treasury by proceedings which will be noticed hereafter.
The record of the proceedings in Illinois is loose and defective, but no more so than those which were sustained in the Confiscation Cases. (20 Wall., 92.) Most of the errors are identical with those which were put forward and overruled in that case. It is pressed upon us that the payment of half the proceeds to an informer was without warrant of law. Conceding this, the claimant cannot inquire into it in these proceedings if the district court had jurisdiction of the case. (Windsor v. McVeigh, 93 U. S., 274, and authorities cited in the opinion of the
Some question was made at tbe trial as to tbe nature of these proceeding's. In our opinion tbe suit was begun and conducted under tbe provisions of tbe Confiscation act of July 17, 1862, Avitb pleading's in some respects identical, and in most respects similar, to tbe pleadings in tbe Confiscation Oases, wbicb are reported in tbe 20tb Wallace. It must therefore stand or fall by that act.
Tbe Attorney-General contends that tbe proceeds of tbe claimant’s cotton were duly confiscated in Illinois, and that tbe claimant is therefore debarred from pursuing them into tbe Treasury under the provisions of the Captured and Abandoned - Property Act.
Tbe claimant, on tbe other band, maintains that tbe provisions of tbe Captured and Abandoned Property Act are repugnant to tbe provisions of tbe Confiscation Acts; that tbe two cannot exist side by side; and that, consequently, tbe later repeals tbe earlier statutes.
Courts do not favor repeals of statutes by implication. Although subsequent laws cover some, or even all, tbe cases provided for by tbe prior statute, they may nevertheless be merely affirmative, cumulative, or auxiliary. In order to sustain a repeal by imylication, there must be a positive repugnancy between tbe provisions of tbe new law and those of tbe old (Wood v. United States, 16 Pet. 363) wbicb makes it absolutely impossible to reconcile tbe two. (McCool v. Smith, 1 Black, 471; see also Gillis’ Case, 95 U. S., 415, 416.) Especially, when there is a series of statutes on a subject, a court will endeavor to sustain tbe series as a whole (White v. Johnson, 23 Miss., 68 ; The State v. Mister, 5 Md., 11); and it will not regard tbe prior statutes as repealed by a later one by implication, unless tbe latter is either entirely inconsistent with tbe former or revises tbe whole subject matter and is evidently intended as a substitute for them. (Farr v. Brackett, 30 Vt., 344; .Giddings v. Cox, 31 Vt., 607; Longlois v. Longlois, 48 Ind., 60; Lewis v. Stone, 22 Wis., 234; New London R. R. Co. v. B. & A. R. R. Co., 102 Mass., 386.)
Tbe Confiscation Act of July, 1862, first made provisions for-tbe punishment of treason, wbicb are still in force. Then it required tbe President, after public warning, to seize tbe property of persons engaged in armed rebellion. It authorized proceed
It was tbe evident purpose of Congress, as expressed in tbis legislation, that tbe property of disloyal enemies should be seized and sold through tbe instrumentality of tbe courts, and that tbe proceeds should pass into tbe Treasury.
Tbe Captured and Abandoned Property Act, however, contemplated tbe seizure, not only of tbe properties of disloyal persons but those of loyal persons as well in enemies’ country, and it created a new channel by which both might reach the Treasury. It further gave to a loyal owner who had never given aid or comfort to the rebellion the privilege of pursuing the proceeds of his cotton in this court; but as to a disloyal person, it increased the rigor of the law, by authorizing a new, rapid, and arbitrary mode of converting his property into a means for suppressing the rebellion, which recognized the title of the United States as absolute in it from the day of the seizure. It made no change in the disposition which the Confiscation Acts authorized the courts to make of that property. The privilege which a disloyal owner now enjoys comes to him from an executive act, which Congress attempted to set aside, and which would have been equally potent against an impending decree of confiscation.
A late and’carefully considered opinion of the Supreme Court justifies this conclusion. The court there says: “ In the indiscriminate seizure of private property, it seemed to Congress that friends might sometimes suffer. Therefore, to save them, it was provided that property when captured should be sold, and the proceeds paid into the Treasury of the Unjted States. * * As to all persons within the privileges of the act, the proceeds were to be held in trust, but as to all others the title ■of the United States was absolute.” (Collie's Case, 97 U. S., 39.)
It is clear that there is no conflict of priciple between the earlier and later acts. The repugnancy which is to force a court to the irresistible conclusion that the Confiscation Acts are repealed by implication is to be found (if at all) in that provision relating to the machinery for its execution whereby all cotton and other specified kinds of property in enemy’s country .are subjected to it.
The Confiscation Acts authorized the seizure of rebel prop
Thus it appears not only that the subject-matter and the duration of the earlier and of the later statutes are dissimilar, but also that the supposed date of the extinction of the former and the actual time when the latter became operative were not identical. It follows that conclusions drawn from the description of property affected by the act of 1863 are subject to serious modifications and exceptions, if we halt before the further conclusion that the new repiedy was cumulative and auxiliary.
The decisions of the Supreme Court in the Cotton Cases afford few glimpses of its leanings on this question. In only one. reported case of this class was an opportunity offered to the court to hold the Confiscation Acts repealed bjr the Abandoned and Captured Property Act. In Morris’s Case (8 Wall., 507) the proceedings were against cotton under the Confiscation Acts.. The monition was issued in May, 1866, and the decree of the court below, confiscating the cotton, was rendered December 20,1866. The court above reversed the decree on the ground of irregularity in the proceedings, and in an elaborate opinion took no notice 'of the present point, which would have been fatal to the judgment if taken. The decision is therefore authoritative only so far as silence, when opportune was offered the court to speak, is to be regarded as indicative of its views.
In Klein’s Case (13 Wall., 128) Mr. Chief Justice Chase called attention to the fact that no provision is made in the Captured and Abandoned Property Act for the confiscation of the property of disloyal owners, and added, that whether restoration would be ' made to those who had not continually adhered to the Government or confiscation would be enforced was left to be determined by considerations of public policy subsequently to be developed. If we may draw conclusions from such casual expressions, it is
Io Sprott’s Case (20 Wall., 459) Mr. Justice Field argued that the title of that claimant remained on the day of the delivery of. the property as perfect as it did the day the cotton was seized.,, because no proceedings under the Confiscation Acts had been instituted by the government for the condemnation and forfeiture of the cotton seized or its proceeds.
We are not insensible to the injustice of drawing positive conclusions from such isolated utterances. Every judge knows that expressions will creep into the most carefully prepared opinion which, when separated from their context, are capable of being-distorted to conclusions at variance with those entertained by their author. Making due allowance, however, these passages-in the reports are not without weight; and there are, in addition,, two late real-estate cases which may fairly be deemed to throw-more positive light on the views of the higher court.
The first is Semnes’s (Jase (91U. S., 21). He was the owner of certain real estate in Louisiana, against which proceedings for confiscation were instituted August 7,1803. The Captured and Abandoned Property Act did not at that time apply to real estate; but on the 2d July, 1804, it was extended by Congress so as to include all descriptions of property mentioned in the act of July 17, 1802, including real estate. About nine mouths after the passage of the act of 1804 the district court of Louisiana rendered judgment condemning Semmes’s property under the act of 1802. His real estate was sold under that judgment. The proceedings were brought before the Supreme Court and the judgment affirmed.
In the second case (Pike v. Wassel, 94 U. S. 711) lands in Arkansas were, on the 10th February, 1805, seized pursuant to instructions from the district attorney for the purpose of confiscation. On the 17th of that month they were libeled in the proper court, and on the 5th of the following April a decree of condemnation was entered, under which the lands were sold. On appeal the proceedings were sustained so far as they affected the interest of the then owner.
No question of jurisdiction was raised in these cases; but the court might have considered it of its own motion (Herriott v. Davis, 2 W. & M., 229). It is difficult to see how the judgments-
In view of all this, we cannot think that Congress intended in •every case to substitute the Captured and Abandoned Property Act, a statute limited in scope and temporary in duration, for the Confiscation Acts, with broader provisions and more enduring-life ; or that it designed, in the midst of war, to cut short all power of disposing of enemies’ property captured in the enemies’ country until an executive officer whom the Constitution clothes with no legislative functions should revive the power in another form.
Even if it were not a matter of history of which we may take judicial notice, the record in this ease would tell us under what circumstances the Captured and Abandoned Property Act was passed. The armies and fleets of the Government were in the heart of the insurgent country. Its wealth, so far as they penetrated, was within their grasp. Properties of friend and foe alike were held subject to the merciless rights of war. The statute, which has been well styled u liberal and beneficient legislalion” (Alexander’s Case, 2 Wall., 422), interposed its shield to save all from destruction or ravage; to lodge the property of friends where they might in more peaceful times seek its proceeds, and to give the Government the use of the wealth which its enemies would otherwise employ for its overthrow. The President’s power to seize, under the act of August, 1861, property employed in aiding, abetting, or promoting the insurrection, or, under the act of 1862, the properties of persons serving or holding office under the Confederate States or any of them, or any person in the loyal States who should give aid and comfort to the rebellion, or of persons in the disloyal States who should be actually engaged therein, was left unchecked by it; and no restraint was placed upon the subsequent proceedings authorized by those statutes for the condemnation and sale, as confiscated, of any properties which might be so seized under executive order.
Without such a previous seizure under an executive order, however, for the purpose of confiscation, no proceedings could be properly instituted under the Confiscation Act of July 17, 1862 (The Confiscation Cases, 20 Wall., 108); and as a district court of the United States is a court of limited jurisdiction, although not an inferior court (Thompson v. Lyle, 3 Watts &
In the present case no such executive order preceded the confiscation proceedings. The claimant’s cotton was seized by the naval forces of the United States under the general executive order of August 28,1862, for the purpose of naval defense. The Admiral in command reported the seizure, as required by the order, and was instructed by the Secretary of the Navy, on the 28th of March, to hold the cotton under the Abandoned and Captured Property Act. , This executive order struck at the root of the proceedings in Illinois; and when the district attorney libeled the cotton, he did not, because he could not, aver that it had been seized by executive order for the purpose of confiscation. The condemnation and sale under such a record are void, and for such portion of the claimant’s cotton as passed into the Treasury he is entitled to a judgment in this action, notwithstanding the judgment in Illinois.
We all agree that he is entitled to recover the moiety which the district court in Illinois decreed to be paid into the Treasury, and which was paid in after the passage of the Abandoned and Captured Property Act, notwithstanding the fact that the seizure of the cotton was made before the passage of that act. The decision as to the remainder is concurred in by only a majority of the court.
The suit in which the claimant’s cotton was condemned was one of many similar suits brought to judgment in the district court for the southern district of Illinois at that term, in all of' which Cairtain Pennock appeared as informer. In each of the suits a moiety of the proceeds was adjudged to him; and at the close of the term he received one check for $59,943.42, as representing the aggregate of the various sums so decreed to him. This identical check he handed to Admiral Porter as his supe
In July, 1874, proceedings were begun in the district court of the United States in the District of Columbia for the purpose of making such a distribution of said money among the officers and crew of the Mississippi squadron. These proceedings were instituted through Admiral Porter, who placed in the custody of the court his check upon the assistant treasurer at Saint Louis in favor of the assistant treasurer at Washington for the amount so deposited by him.
The district court of the District of Columbia took jurisdiction in admiralty of the res thus placed in its custody in a suit entitled “ The United States vs. $59,413.42, prize-money of the Mississippi squadron, deposited with the assistant treasurer, by order of the Secretary of the Navy, by Pear-Admiral David D. Porter, commanding Mississippi squadron.” It made three decrees on the 13th July, 1864.
By the first, it ordered the marshal to deposit the check with the assistant treasurer at Washington, and that the money therein, described should remain subject to the order of the court.
By the second, it recited that the money had been decreed to Admiral Porter, as informer, by the district court in Illinois, that the Admiral declined to receive it as informer, and desired it to be distributed as prize-money, and that it was subject to the payment of a certain amount of costs and disbursements, and it decreed that the residue, after payment of such costs and disbursements, should be distributed among the public vessels of the United States named in the decree.
By the third, it ordered the payment of said costs and disbursements, and that the residue of said money should be paid into the Treasury of the United States, to be distributed according to the terms of the decree passed by the court.
If these proceedings are to regarded as ancillary to the proceedings in Illinois for the purpose of correcting an assumed error of that court in failing to make a distribution of prize-
If, on the other hand, they are to be regarded as independent proceedings, there must be statute authority to support them. Consent of parties will not confer on a district court a jurisdiction not given by statute (Railway Company v. Ramsay, 22 Wall., 322), especially where the rights of other parties are affected. The rights of the United States were involved by the decree of the district court of the District of Columbia as well as the rights of the claimants and of other owners of cotton condemned in Illinois. No one could acquire an interest in a prize except by the grant or permission of the United States (The Siren, 13 Wall., 393), or could take such right except in the manner authorized by law. The only authority found at that time for prize proceedings was contained in the act of July 17, 1862, for the better government of the Navy (12 Stat. L., 600; Alexander’s Case, 2 Wall., 422); and in the act of March 3, 1863, to regulate proceedings in prize cases (12 Stat. L., 759).
By the second section of the act for the better government of
By tbe eleventh section of the act they directed that their own share in prizes should constitute a fund for the payment of naval pensions.
By the twelfth section, they directed the court which should have the custody of the res, or its proceeds,, when final condemnation should be made, to deposit the gross proceeds of the sale with the assistant treasurer of the United States at or nearest the place where the sale should be made; and by the act of Jdarch 3,1863, they made that deposit subject to the order of the court which was authorized to make payments and disbursements from it j and they further authorized the court to make final distribution of the residue after payment of the disburse-ments allowed by law, and required it to order such residue to be paid into the Treasury of the United States for distribution there according to the decree.
We are of opinion that no court is empowered to decree this final distribution except the court which first acquires jurisdiction over the res or its representative proceeds. We therefore think that the whole proceedings in Washington were not only void in themselves but void on their face, so as to afford no protection even to an innocent depositary without hire paying out money on the faith of them to a party not entitled to receive it.
The defendants, however, are not in the position of an innocent depositary without hire. Their agent carried away the claimant’s property, and they have undertaken that so much of its proceeds as the claimant can trace into the Treasury shall be repaid to him. ' (Haycraft’s Oase, 22 Wall., 81.) The suit which they authorized him to bring for the proceeds resembles the common-law action of indebitatus assumpsit — a liberal equitable action, which lies whenever a defendant becomes possessed of a plaintiff’s money, or of his property and converts it into money, and in the absence of some controlling rule of public policy or law cannot retain it with good conscience or without violating therules of natural justice and equity. We must treat the Government in such a suit precisely as a private person would be treated as defendant by a common-law court having jurisdiction of similar controversies between private parties.
The ministerial officer who pays the money under such a judg-
It is further contended that this half of the proceeds of the claimant’s cotton lost its identity before the money which is claimed to be identical with it came into the Treasury. We do not think so. It was certainly paid to Captain Pennock; as certainly he paid it to Admiral Porter. From Admiral Porter it went to Secretary Welles; from Secretary Welles back again to Admiral Porter. By Admiral Porter it was macfe the subject of litigation in Washington and deposited with the court there. By the court it was ordered paid into the Treasury. In obedience to that order it was so paid. Every link in the chain is as clear as sunshine at noonday.
In our opinion the claimant has established everything which the law requires him to establish in order to be entitled to recover both the moiety of his cotton, amounting to $12,080.20, which was paid into the Treasury by order of the district court for the southern district of Illinois, and so much of the other moiety, amounting to $12,420.00, as was paid into the Treasury by order of the district court of the District of Columbia, making in all $25,100.80.
Judgment willbe entered accordingly.
Dissenting Opinion
dissenting:
I concur with, all my associates in bolding that tbe claimant is' entitled to recover tbe $12,080.20 paid into tbe Treasury by tbe marshal from tbe proceeds of bis cotton captured in rebel territory, and after tbe passageof tbe Act of March 12,1863, brought into a loyal State, and in possession of an officer of tbe Navy, without having been libled previously thereto for forfeiture under tbe provisions of tbe Aot July 13,1801, § 5 (12 Stat. B., 257), nor seized by order of tbe President at any time under' tbe provisions of tbe Aot July 17, 1802, §§ 5, 6, 7 (12 Stat., 590), so much having reached tbe Treasury as tbe proceeds of captured cotton and being still held by tbe defendants for tbe loyal owner; but I am constrained to differ from tbe majority in giving judgment for that which did not so come into their control and which is not now in their Treasury.
Tbe difficulty with this branch of tbe claimant’s case is that tbe money decreed to be paid to Captain Pennock lost its identity, was covered into tbe Treasury as prize-money belonging to tbe captors upon an order issued by a court of competent-jurisdiction in admiralty, was so entered in the books of tbe department, was known to tbe defendants only as such prize:money, and was paid out, as it was received, under tbe same order of tbe same court, acting under tbe statutes then in force for tbe distribution of prize-money, in pursuance of a permanent appropriation made by law, and without notice of tbe present claim.
It cannot be doubted that tbe decree of tbe district court in Illinois, ordering one-half of tbe proceeds of tbe cotton condemned to be paid to Captain Pennock, as informer, was irregular and not warranted by law. Nevertheless, tbe decree was obeyed and acted upon, and tbe money, with other money decreed ill like manner in other cases, to tbe amount, in all, of $59,943.42, was paid to Captain Pennock by tbe marshal by bis check therefor on an assistant treasurer, not on tbe Treasurer, for tbe money bad not reached tbe Treasury, and was not subject to tbe constitutional provision that “ no money shall be drawn from tbe Treasury but in consequence of appropriations made by law,” but was subject to tbe order of tbe court. Captain Pennock, while be did not aepept tbe same for bis own use, did receive it and hand it to Admiral Porter, whom be regarded
Thus the proceeds of the claimant’s cotton, to that extent, lost its identity as against all persons except those having actual notice. Without the restricted indorsement Admiral Porter might have passed this check to anybody for value received without subjecting the receiver to liability on account of the manner in which the Admiral obtained the money on deposit against which it was drawn, and that indorsement only stamped it with notice that it was prize-money.
By the Act March 3, 1803, chapter 91, § 3 (now Bev. Stats. Dist. of Col., § 7G2), it was provided, with refereene to justices of the Supreme Court of th¿ District of Columbia, that “ any of said justices may hold a district court of the United States for the District of Columbia in the same manner and with the same powers and jurisdiction possessed and exercised by other district courts of the United States.” This gave to that court jurisdiction “of all causes of admiralty and maritime jurisdiction * * and of all seizures on land and on waters not within admiralty j urisdiction * * and original and exclusive cognizance of all prize brought into the United States except” property used, &c., in aid of insurrection, as set forth in the several acts now incorporated into Bevised ’Statutes, § 563, ¶ 8; § 629, ¶ 6; §§ 5308, 5309.
The Act June 30, 1864, chapter 174, § 16 (now Bev. Stats., § 4641), provided, in relation to prize, “that the net amount decreed for distribution to the United States, or to vessels in the Navy, shall be ordered by the court to be paid into the Treasury of the United States to be distributed according to the decree of the court; and the Treasury Department shall credit the Navy Department with each amount received, to be distributed to vessels of the Navy; and the persons entitled to share therein
It is only with orders of the courts made under this provision that the Treasury Department has any concern. If money comes through,a court of such general jurisdiction, declaring it to be prize-money, and ordering its payment into the Treasury, and its distribution among the vessels of the Navy named in its decree, the officers of the Treasury are bound to respect it, and it is no part of their official duty to inquire into the sources from which the money may have been derived, nor to determine whether or not the court has erred in its judgment in holding it to be lawful prize-money, nor to inspect all the records to ascertain whether or not the court may not have committed errors in the forms of proceeding, or even made a mistake in taking jurisdiction at all. They are not to sit in review of the proceedings of a Federal court whose order comes to them in relation to a subject-matter over which it has general jurisdiction.
And especially is it their duty to respect such a decree in whole, if at all. If they accept the money, according to the terms of the decree, as prize-money belonging to the captors, and cover it into the Treasury as such, it becomes, to all intents and purposes, prize-money, subject to the permanent appropriation made for the payment thereof to the captors on the decree of court by the statutes now incorporated into Revised Statutes, § 3689, second edition, p. 728, and § 4611. It has then certainly, if not before, lost its identity, as any other money, or as belonging to any other persons; more strongly so when, as in this case, no knowledge or notice comes to them or to the defendants, in any form whatever, that there are other claimants thereto, until a long time after it has been paid out as it was received, under the decree of court and in pursuance of an appropriation made by law.
This money was deposited with the assistant treasurer at Washington, under the first order of court, as prize-money, to “remain in the hands of said assistant treasurer, subject to the further order of this court;” and it may be noted here that the assistant treasurer at Washington never receives on deposit any money other than prize-money deposited under the provisions of law (now Rev. Stats., § 4629); all other public money, or
The chief justice of the Supreme Court of the District of Columbia, holding a district court, seems to have decreed a distribution of the money as by consent of the only party having control of the same. He appears to have proceeded upon the ground that the court, having general jurisdiction of all cases of prize and forfeiture, might by common consent waive the forms required in adverse proceedings when Admiral Porter was willing to dedicate as prize-money, for the benefit of the officers and men of his squadron, money which he had on deposit in his own name, and no doubt then believed by all parties to be his own property, rightly and legally acquired; and this, too, without conflicting with that general principle of law that courts cannot acquire jurisdiction by consent of parties. Whether or not that view was correct is immaterial in this case.
Conceding that the proceedings in the district court of the District of Columbia, by recitals therein contained, carried with them notice to the Treasury officials that the decree was extrajudicial, and that the money was erroneously held and decreed to be prize-money, still there ivas nothing- therein to give them notice that it -was the proceeds of captured and abandoned property, since the Act of March 12, IS63, in terms, provided for the payment into the Treasury of such money only through Treasury agents, and did not put those officials on their guard to look for it in the decrees of prize courts. On the contrary, the notice to them was no more than that Admiral Porter, in his generosity and magnanimity, voluntarily contributed to the fund deposited for the benefit of captors his own money, duly and legally awarded to him as informer. But whatever the notice was or might have been, if the Treasury officers had lookedinto the proceedings thoroughly, I am not prejiared to hold that the
It is true that now, in this court, by means of witnesses and the efforts of the Attorney-General’s Office, the money is traced through the various changes to which it was subjected into and out of the public Treasury, and no doubt with more witnesses, and more litigation it might be further traced even beyond the hands of the hundreds of officers and men of the Navy to whom it was distributed. But when.received and paid out by the Treasury officials no witnesses were or could have been called and sworn, no adverse claimants or counsel appeared to press their views, and the money had no ear-marks penetrating through the several vails which obscured its origin. It was then, and not afterwards, by the dim light of that day, and not by the noonday sun of this, that the rights and liabilities of the parties became fixed.
It is a matter of familiar history that large amounts of money were paid in and out of the Treasury as prize-money to captors ■and as shares to informers upon the decrees of Federal courts, and if the defendants are to be held liable for all the errors of those courts in the proceedings upon which the decrees were founded, and made to pay over again money which they have paid out upon the same decree as that bj^ which they received it, without notice of any adverse claim thereto, simply because the owners of captured and abandoned property are able to trace into the mass of money so received and^paid out the proceeds of their property, a liability will be established which, it seems to me, was not contemplated by Congress in passing the Captured or Abandoned Property Act, is not within the reasonable construction, as it certainly is not within the language, of that act, and which would be fraught with peril to the due administration of the Treasury Department.
The Captured or Abandoned Property Act was an act of grace and favor, passed in sympathy for the loyal people in rebellious States, Avho, being inhabitants of rebel territory, were in law rebel enemies. The Government might have confiscated all their property, or, by the more rigorous rules of warfare, might have seized and held it all as booty. Congress relaxed the harsher laws, and undertook to make the Government a trustee
A case under the Captured or Abandoned Property Act is very much like an action of assumpsit for money had and received,, in which, when maintainable, the defendant is frequently said by the courts to be trustee of the money for the plaintiff, precisely as the Supreme Court has often called the United States trustees of the proceeds of captured and abandoned property for the loyal owners. And we are sure that no adjudicated case can be found in which it has been held that such an action could be maintained against one who, having received money on deposit from another as his own property, has paid it out as he received it, to the same party, or on his order, without notice of any adverse claimant thereto, simply upon proof that the depositor wrongfully obtained the same from the plaintiff.
In Town of Verona, v. Peckham et al. (66 Barb., 103) it is laid down, in language quite applicable to the present case, that although money may have passed into the hands of an individual in a Avay not authorized by law, yet if it is given him to be applied to a specific purpose, and he has so applied it, he cannot in equity and good conscience be called upon to refund it.
I may add, as to the amendment of the district attorney to the libel in the district court of Illinois striking out the first allegation therein, my opinion is that he intended, and the effect of the amendment was, to strike out what may be called
Dissenting Opinion
dissenting:
I agree with tbe opinion of tbe court as to tbe construction given to the Abandoned and Captured Property and tbe Confiscation Acts, and as to tbe right of tbe claimant to recover tbe proceeds of bis property now in tbe Treasury, and with tbe opinion of Mr. Justice Richardson as to tbe merits of this particular case ; but I am also of tbe opinion that tbe court is without jurisdiction to bear and determine a suit under tbe. statute for a fund wbicb is neither actually nor constructively in tbe Treasury, and this for tbe following reasons:
I. Tbe suit is not of tbe nature of an action of indebitatus assumpsit nor of any action at law. Tbe position of tbe Government under tbe Abandoned, or Captured, Property Act (12 Stat. L., p. 820) is that of a trustee in equity, irresponsible for tbe acts of bis agents who assist him in administering tbe trust. Tbe cause of action is ex mera gratia; no consideration passed to tbe Government; tbe property was not taken for public use tbe custody of tbe property after capture was for tbe benefit of tbe owner ; no implied contract arises from tbe transaction ; no personal guaranty against losses can be predicated against tbe trustee either from tbe terms of tbe statute or tbe natur<y of tbe trust. (Wylie’s Case 6 C. Cls. R., 295; Cone’s Case 8 id.,
II. The judgment to be rendered for this diverted trust fund must be satisfied either out of the captured property fund remaining in the Treasury or out of moneys appropriated by Congress for the ordinary judgments of the court springing out of the obligations of the United States as contractors.
As to the former :
By the decision of the Supreme Court in Klein’s Case (7 0, Oís. R, 240) it was settled that “under the Abandoned or Captured Property Act” “the government constituted itself the trustee for those who were by that act declared entitled to the proceeds of captured and abandoned property and for those whom it should thereafter recognize as entitled”; that “the title to the proceeds of the property which came to the possession of the Government by capture” “was in no case divested out of the original owner,” except such as was used for carrying on war; and that it remains with the Government itself to determine whether proceeds still in the Treasury shall be restored to the outstanding owners or not. Such being the status of the fund, it would be contrary to equity to take one man’s money to pay another man’s judgment; and the fact that the trustee still has somebody’s money in its possession gives the court no power to decree payment of the claimant’s losses out of trust-money belonging in equity to other persons not before the court.
As to the latter:
In the absence of legislation assuming such losses, and in the absence of a contract express or implied imposing an obligation upon the Government, the court is without jurisdiction to render a judgment which will hold the Government to a personal responsibility in the matter, and make it respond in damages payable out of moneys derived from taxation, and appropriated for the payment of its legal debts.
III. The distinction between this case and Brown’s (6 C. Cls. R., 171) and O’Grady’s (10 id., 134, 22 Wall., 641) is that there the Government withheld moneys which had been decreed to be the claimants,’ and by so doing became liable on an implied contract as for moneys withheld and applied to its own uses and purposes; while here the diverted fund was applied to no use or purpose of the Government, but was paid away
Tbe distinction between tbis case and Sevier’s (7 C. Cls. B., 587) is tbat there tbe decision came before tbat of tbe Supreme Court in Klein’s Case, and consequently rested upon what we must now regard as a false premise, viz, tbat tbe property in all cotton passed absolutely by capture to tbe Government, with an equitable reservation in tbe nature of a compact in favor of those few persons who, adhering to tbe compact, never gave .aid or comfort in fact to tbe rebellion. Upon tbat premise, it was properly held tbat tbe Government, not being trustee for .all owners, could not evade tbe obligations of its compact to pay a loyal claimant tbe proceeds of bis property by setting up tbe mistakes or negligences of its law officers.