LAMAR, Executor, etc. v. MCCULLOCH.
Filed October 26, 1885.

CAPTURED AND ABANDONED PROPERTY-ACTION AGAINST SECRETARY OF TREASURY FOR CONVERSION OF COTTON-ACTS OF MARCH 12, 1863, AND JULY 27, 1868-REV. ST. 2 1059.

Under section 3 of the act of July 27, 1868, c. 276, (15 St. 243,) now embodied in section 1059, Rev. St., in an action of trover brought against a former secretary of the treasury of the United States, in a court other than the court of claims, to recover a sum of money as the value of certain cotton alleged to have been the private property of the plaintiff, the defendant pleaded that the cotton had, in an insurrectionary state, been taken, received, and collected, as captured or abandoned property, into the hands of a special agent, appointed by the defendant while such secretary, to receive and collect captured or abandoned property in that state, under section 1 of the act of March 12, 1863. c. 120, (12 St. 820;) that the provisions of that act were carried out in regard to the cotton as being captured or abandoned cotton; that all the acts done by the defendant respecting the cotton were done by him through such agent in the administration of, and in virtue and under color of, the act of 1863; and that, by force of section 3 of the act of 1863, and of section 3 of the act of 1868, the action was barred, and was exclusively within the jurisdiction of the court of claims. It appeared that the cotton had been taken, so far as the defendant was concerned, as being captured or abandoned property, under a claim made by him in good faith to that effect, in the administration of, and under color of, the act of 1863. Held, that, without reference to the question whether the cotton was in fact abandoned or captured property within the act of 1863, the fact that it was taken as being such, under such claim made in good faith, was a bar to the action under the act of 1868 and section 1059, Rev. St.

In Error to the Circuit Court of the United States for the Southern District of New York.

Geo. Ticknor Curtis and Edward N. Dickerson, for plaintiff in errcr. Atty. Gen. Garland, for defendant in error.

BLATCHFORD, J.* This is an action of trover, originally brought by Gazaway B. Lamar against Hugh McCulloch in the supreme court of New York, in September, 1873, and removed into the circuit court of the United States for the Southern district of New York by the defendant. The declaratio v.6s.c.-1

was framed to recover $150,280, as the value of 578 bales of cotton, known as the Thomasville cotton, and $110,760, as the value of 426 other bales of cotton, known as the Florida cotton. The suit was afterwards discontinued as to the Thomasville cotton. The defendant pleaded (1) the general issue; (2) that the defendant was the secretary of the treasury of the United States, and the 426 bales had, in the state of Florida, which had been designated as in insurrection against the lawful government of the United States by the proclamation of the president of the United States, dated July 1, 1862, (12 St. 1266,) "been taken, received, and collected, as abandoned or captured property, into the hands of certain special agents, duly appointed by the secretary of the treasury to recover and collect captured or abandoned property" in said state, in pursuance of the provisions of the first section of the act of congress approved March 12, 1863, c. 120, (12 St. 820,) and the acts amendatory thereof and supplementary thereto; that "all the other provisions of said act of congress were carried out in regard to said bales of cotton, as being captured or abandoned cotton;" that all acts done by the defendant "respecting said cotton were done by him through the agents aforesaid, as such officers of the United States as aforesaid, and in the administration of, and in virtue and under color of, the aforesaid acts of congress;" and that, by force of section 3 of the said of March 12, 1863, and section 3 of the act of congress approved July 27, 1868, c. 276, (15 St. 243,) the plaintiff "has no legal cause of action herein, but is barred from such action, which, by force of the statutes aforesaid, is exclusively within the jurisdiction of the court of claims;" (3) that this action is brought against the defendant "for or on account of private 'property taken by him as an officer or agent of the United States, in virtue or under color of” said act of March 12, 1863, and the acts amendatory thereof and supplementary thereto; that the acts done by the defendant "in regard to said private property were done by him as an officer or agent of the United States, in the administration of, and in virtue and under color of, said act" of March 12, 1863, and said acts amendatory thereof and supplementary thereto; and that, by force of section 3 of said act of July 27, 1868, the plaintiff has no legal cause of action against the defendant. There were other pleas to which it is not necessary to refer.

To the general issue the plaintiff put in a similiter. To the second plea he put in two replications: (1) That the defendant seized and detained the cotton mentioned in the plea in his own wrong and without the cause alleged, concluding to the country; (2) that the cotton was not property abandoned or captured in the state of Florida, “and had not been taken, received, and collected, as abandoned or captured property, into the hands of special agents duly appointed by the secretary of the treasury to receive and collect captured and abandoned property" in said state, in pursuance of the statutes cited, and was "not seized by any agent or officer of the United States as such abandoned or captured property, and that all acts done" by the defendant "respecting the said cotton were not done by him, through the agents aforesaid, as the secretary of the treasury of the United States, and in the administration of, and in virtue and under color of," the acts of congress set forth in the plea, concluding to the country. To the third plea the plaintiff replied that the cotton was not private property taken by the defendant "as an officer or agent of the United States, in virtue or under color of" the acts of congress mentioned in the plea; and that the acts done by him in regard to the cotton "were not done by him as an officer or agent of the United States, in the administration of, and in virtue and under color of," said acts of congress, concluding to the country.

To these replications the defendant put in similiters. The case was at issue Fin March, 1874. In October, 1874, Mr.*Lamar died, and, the present plaintiff having been appointed and qualified as his executor in November, 1874, an order was made in November, 1875, continuing the action in his name as ex

ecutor. The cause was tried before a jury in November, 1884. At the close of the plaintiff's evidence, and without any evidence being put in by the defendant, the court directed the jury to find a verdict for the defendant, "upon the ground that the court of claims had exclusive jurisdiction of the cause of action set forth in the plaintiff's declaration, and in the evidence as given thereunder, by virtue of the statute of March 12, 1863, and the statutes passed amendatory thereof." The plaintiff excepted to this ruling, and a verdict was rendered for the defendant, followed by a judgment in his favor, to review which the plaintiff has brought this writ of error.

The case made out by the plaintiff by his evidence set forth in the bill of exceptions, as applied to the pleadings above set forth, was this, so far as such evidence is material in the view we take of the case. On the sixteenth of November, 1865, one Samuel G. Cabell, being in Washington, addressed to the defendant, who was then the secretary of the treasury of the United States, a written application or petition, asking for compensation for certain services performed by him "in collecting and securing for the government of the United States certain captured property therein enumerated." No copy of this letter is put in evidence, and its tenor is to be gathered from subsequent correspondence. On the seventeenth of November, 1865, the defendant sent to Mr. Cabell the following letter:

"TREASURY DEPARTMENT, November 17, 1865. "SIR: I have received your application for compensation for certain services performed by you under an appointment from J. H. Alexander, Esq., ass't special agent at Pensacola and Apalachicola, Fla., in collecting and securing for the government of the United States certain captured property therein enumerated. In fixing the amount of your compensation Mr. Alexander transcended his authority, and promised you an amount larger than has been approved by me in any case, and much larger, in my opinion, than the circumstances in these cases would justify. Nor does it appear that the property in question has been actually placed in possession of any agent of this department, or, in fact, removed from the places where it was discovered. In view, however, of the stipulations made by Mr. Alexander, and services you have performed, and will still be able to perform for the department in connection with the collection of this property, I desire that you return to your late field of operations, and do all in your power to secure to the government the cotton named by you, and to transport the same to a proper place of shipment at the earliest practicable day; and I will agree to make such an allowance as compensation for your services as will be liberal and just, in view of the character of your services, and the risk and expenses incurred by you in performing them. To this end it will be necessary for you to keep accurate accounts, and a full history of all the facts connected with all lots of cotton so secured and delivered by you.

"Please acknowledge the receipt hereof, and advise me whether the proposition herein made will be accepted by you.

"Very respectfully,

"H. MCCULLOCH, Secretary of the Treasury. "8. G. Cabell, Acting Aid to Ass't Sp'l Agent, Treas'y Dep't, Ninth Special Agency."

On the eighteenth of November, 1865, Mr. Cabell replied as follows:

"WASHINGTON, D. C., November 18, 1865. "Hon. Hugh McCulloch, Secretary of the Treasury-SIR: I am in receipt of your communication of the seventeenth of November authorizing me to return to my late field of operations in Florida and southern Georgia, and to do all in my power to secure to the government the cotton named in my com

munication of the sixteenth of November, and I hereby signify my acceptance of your proposals. Before leaving the city I would desire further instruc tions as to the mode of paying the necessary expenses to be incurred in bringing the said cotton to a proper place of shipment, and to whom I am authorized to turn the cotton over. In your communication no mention is made of my claim for compensation for collecting or securing the cedar timber and the cattle named in my petition, and I understand that decision upon these matters has been deferred.

"I am, very respectfully, your ob'd't serv't,

S. G. CABELL."

On the eleventh of December, 1865, Mr. Cabell sent to the defendant the following letter:

“TALLAHASSEE, FLORIDA, December 11, 1865. "Hon. H. McCulloch, Secretary of the Treasury-SIR: I have the honor to report that, agreeable to your orders contained in your letter of November 17th, ult., I have already shipped to Jacksonville, for shipment to New York, one hundred and seventy bales of cotton, a part of the lot formerly owned by the Exporting & Importing Company, and am engaged preparing the balance for shipment. I have the honor to report that I proceeded to Thomasville, Georgia, and to carry out your instructions relative to the cottons at that point and vicinity, estimated at over fifteen hundred bales, and specified in my petition to which your letter of the seventeenth of November was an answer, and found that the cotton was being shipped by Mr. Browne, special agent of the 5th district, upon whom I made a demand for the cottons, who refused to allow me to touch a bale of the cotton, and I was refused assistance from the military commander at that post on the ground that he had no authority in the premises. I have respectfully to state that I served in writing notices upon the holders of this cotton, and was the party by whose aid the government did finally come into the possession of the same. I have to respectfully ask that the said special agent, Browne, be ordered to allow me to carry out my orders contained in your letter of November 17th, and that he be required to make a report as to what disposition he has made of any part of said cotton, and that the military be ordered to aid me in guarding the same, and such other assistance as they may be able to render. "I have the honor to be, very respectfully, your ob't serv't,

"S. G. CABELL, Acting Agent, Treasury Dep't."

The defendant replied to this letter as follows, on the twenty-ninth of December, 1865:

"TREASURY DEPARTMENT, December 29, 1865. "SIR: I have received your letter of the eleventh instant, advising me that, in accordance with my instructions of November 17th, you had shipped to Jacksonville, for shipment to New York, 170 bales of cotton, being part of a lot formerly owned by the Exporting & Importing Company, and that you are engaged in preparing the balance for shipment; also, that you visited Thomasville, Ga., in relation to the cotton at that point, and found that it was being shipped by Mr. Browne, supervising sp'l agent, 5th agency, upon whom you made a demand for the cotton, and that he refused to allow you to touch a bale of it; stating, also, that you were the party by whose aid the government finally came into possession of it, and asking that Mr. Browne be ordered to allow you to carry out the instructions referred to, etc. My letter of November 17th, to which you refer, was not intended to authorize you to take possession of any cotton which might be found in the hands of a duly-authorized agent of the department, but was intended rather that you should co-operate with such agents, and to empower you to take into your possession any cotton belonging to government not in the custody of any other officer of the depart ment, and which might not otherwise be secured by them. Inasmuch as it