Lamar v. McCulloch
115 U.S. 163 (1885)

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U.S. Supreme Court

Lamar v. McCulloch, 115 U.S. 163 (1885)

Lamar v. McCulloch

Argued October 15-16, 1885

Decided October 26, 1885

115 U.S. 163

Syllabus

Under § 3 of the Act of July 27, 1865, c. 276, 15 Stat. 243, now embodied in § 1059 of the Revised Statutes, 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 § 1 of the Act of March 12, 1861, c. 120, 12 Stat. 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 § 3 of the act of 1863, and of § 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

Page 115 U. S. 164

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 § 1059 of the Revised Statutes.

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 declaration 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 Stat. 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 Stat. 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 § 3 of the said of March 12, 1863, and § 3 of the Act of Congress approved July 27, 1868, c. 276. 15 Stat. 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

Page 115 U. S. 165

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 § 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 in March, 1874. In October, 1874, Mr.

Page 115 U. S. 166

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 executor. 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 16th 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 17th 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

Page 115 U. S. 167

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 accepted by you."

"Very respectfully,"

"H. McCULLOCH"

"Secretary of the Treasury"

"S. G. Cabell"

"Acting Aid to Ass't Sp'l Agent"

"Treas'y Dep't, Ninth Special Agency"

On the 18th 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 17th of November authorizing me to return to may 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 communication of the 16th of November, and I hereby signify my acceptance of your proposals. "

Page 115 U. S. 168

"Before leaving the city, I would desire further instructions 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 11th 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 and 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 17th 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

Page 115 U. S. 169

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 29th of December, 1865:

"TREASURY DEPARTMENT, December 29, 1865"

"SIR: I have received your letter of the 11th 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 and 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 cooperate 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 department, and which might not otherwise be secured by them."

"Inasmuch as it appears by the records in this department that the cotton at Thomasville was turned over to Mr. Browne

Page 115 U. S. 170

by the military authorities in August last, and regularly receipted for by him, I must decline to comply with your request to direct him to turn it over to you."

"Mr. Browne has made a representation of the matter to the department, from which it appears that you have assumed to authorize other persons 'to seize all the cotton, tobacco, and other property which heretofore belonged to the so-called Confederate government.' A perusal of my letter to you of Nov. 17th will show that no authority to appoint subordinates was delegated to you, nor was it intended to do more than secure your services in connection with the lots of property specified by you. No indiscriminate seizures or collections were contemplated by it. You will therefore withdraw any such appointments you may have given, and conform your general action accordingly."

"Relative to the instructions asked for in your communication of the 18th ult., I have to say, as to the mode of paying the necessary expenses incurred in bringing cotton to a proper place of shipment, that such expenses should be paid by the vessel transporting it to New York, and the same should follow the cotton as charges, to be paid by the United States cotton agent in New York. It is thought that any vessel desiring to secure the freight will make this arrangement."

"It is proper to add here that it is not necessary that the shipments of cotton to New York should be made by you. The spirit of my instructions will be carried out as well by your delivering it to any authorized agent near where the same may be found, or at the place of shipment, and your compensation will be allowed accordingly."

"Your letter of the 11th instant conveys no specific information in regard to where the cotton referred to was found, nor to whom or by what vessel or conveyance the same was shipped. In this connection, I desire to call your attention to that paragraph of my letter of November 17th requiring you to keep accurate accounts and a full list of all the facts connected with any lots of cotton secured and delivered by you. A copy of this record and history should be forwarded to the Department immediately on the shipment of any lot, and a copy

Page 115 U. S. 171

should also be furnished to the agent to whom it is turned over or consigned."

"Very respectfully,"

"H. MCCULLOCH"

"Secretary of the Treasury"

"S. G. Cabell, Esq."

"Acting Aid, Treasury Department, Tallahassee, Fla."

On the 17th of February, 1866, Mr. Cabell, being in Washington, sent to the defendant a letter, in which he said:

"WASHINGTON, February 17, 1866"

"Hon. Hugh McCulloch, Sec'y of Treasury"

"SIR: In accordance with your letter of the 17th Nov'r last, requesting 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 mentioned in my communication to you of November 16th last, I have now the honor to make the following report:"

"As will be seen by an official transcript of the books of the 'custom house,' Jacksonville, Fla., collector's office, January 25, 1866, and herewith submitted, marked 'Exhibit A,' I shipped on board the brig Lewis Clark one hundred and seventy-seven (177) bales of cotton, weighing ninety-two thousand one hundred and one (92,101) pounds; also shipped on board the schooner Queen of the West ninety-five (95) bales of cotton, weighing forty-eight thousand three hundred and twenty-one (48,321) pounds, all of which cotton was marked 'U.S.' and consigned by me to Simeon Draper, Esq., cotton agent, New York City."

"The above-mentioned cotton, which was seized by me, etc., was owned by the Exporting and Importing Company of Georgia (president, G. B. Lamar), a company engaged in the sole business of blockade running, and holding said property for the purpose of aiding and abetting the rebellion, as stated in my communication to you of the 16th Nov. last."

"Most of the cotton purchased for the above company in Florida and southern Georgia was made by one who signs

Page 115 U. S. 172

himself as 'W. W. Cheever, agent for G. B. Lamar,' as will more fully hereafter appear when reference is made to certain lots of cotton by me seized and shipped. It also appears that the said cotton was purchased by the agents of Mr. Lamar, and left on the plantations subject to their order."

This letter proceeds to give an account of the various lots of cotton making up the 272 bales, stating where in Florida they were seized or taken by Mr. Cabell, and transmitting various documents, and, among them, an account showing that he had paid out $6,654 as expenses relative to the cotton before it was shipped to New York. The letter says:

"It will thus be seen from the papers submitted that I have been engaged since July last in seizing and otherwise obtaining this two hundred and seventy-two (272) bales of cotton for the government,"

and concludes with asking as compensation for the services one-third of the cotton, or 90 2/3 bales.

On 27th of February, 1866, Mr. Cabell presented to the Treasury Department a petition setting forth that on the 22d of July, 1865, J. H. Alexander, then acting assistant supervising special agent of the United States Treasury Department for the Ninth special agency, "under the regulations of said department for the collection of captured and abandoned property in the disloyal states," had appointed Mr. Cabell acting aid to the assistant special Treasury agent for the District of Florida, "to collect and receive all the cotton, tobacco, and other property belonging to the United States;" that in July, 1865, one Douglas shipped from Tallahassee to one Ottman, a reputed Treasury agent at Jacksonville, Florida, 268 bales of "government cotton," which Mr. Cabell then claimed were taken from his district, and should of right be under his control, and that in August, 1865, Mr. Cabell paid the expenses of preparing the cotton for shipment, which Ottman had not paid, being $6,883.89. The petition prayed that Mr. Cabell be paid the $6,883.89, and be allowed compensation for his services in the matter. On the 4th of May, 1866, the defendant sent the following letter to Mr. Draper, the United States cotton agent at New York:

Page 115 U. S. 173

"MAY 4, 1866"

"SIR: Application is made to me by S. G. Cabell, Esq., for the allowance to him of a portion of certain two hundred and seventy-two (272) bales of cotton collected by him, and shipped to you from Jacksonville, Fla., on the 25th of January last, and for a portion also of certain two hundred and sixty-eight (268) bales alleged to have been collected by him and turned over or shipped to Reuben Ottman, Esq., assistant special agent at Jacksonville, Fla."

"I am not at present prepared to make a division of either lot, but it appearing to my satisfaction that Mr. Cabell has paid, as expenses incidental to securing the first lot, the sum of six thousand six hundred and fifty-four dollars ($6,654), and on the second the sum of six thousand eight hundred and eighty-three dollars and eighty-nine cents ($6,883.89), which amounts should probably be reimbursed, you are hereby authorized and directed to pay to his attorneys, Messrs. Hughes, Denver and Peck, the two amounts named, charging the first as an item of expense against the two hundred and seventy-two bales above referred to, and the second as a similar item against the shipment of cotton received by you from Mr. Ottman at Jacksonville."

"Mr. Cabell also asks a per diem allowance as a compensation for his time, personal services, and expenses in connection with the cotton named; for this purpose you are also authorized and instructed to pay his attorneys, Messrs. Hughes, Denver and Peck, the sum of three hundred and fifty dollars ($350), being at the rate of five dollars ($5) per day from the 17th of November last, the date of my letter authorizing him to take action in the premises, to the 25th of January, the date of the shipment by him of the two hundred and seventy-two (272) bales mentioned, from Jacksonville, making a charge of this amount, also, as an item of expense against the two hundred and seventy-two (272) bales."

"These several sums should be charged against Mr. Cabell on your books, and will be deducted from any portion of cotton hereafter allotted, or any allowance made, to him on a final settlement of his claims. "

Page 115 U. S. 174

"You will, of course, require proper receipts for the money thus paid, and promptly report your action hereunder to the department."

"Very respectfully,"

"H. McCULLOCH"

"Secretary of the Treasury"

"Simeon Draper, Esq., U.S. Cotton Agent, New York."

The $13,887.89 was paid by Mr. Draper, May 7, 1866. The 272 bales of cotton were sold at auction by Mr. Draper at New York, September 12, 1866, and produced the net sum, above expenses of sale, of $28,792.19, which sum was paid into the Treasury of the United States. When the 268 bales were sold does not appear, but the net proceeds of it at New York, above expenses, appear to have been $42,883.76, and it is assumed they were paid into the Treasury. On the 25th of May, 1867, the defendant sent to the commissioner of customs the following letter:

"May 25, 1867"

"SIR: In compliance with the promise made to him in my letter of November 17, 1865, I have decided to pay to Mr. Samuel G. Cabell, as full compensation for information furnished, services performed, and expenses incurred by him in the collection, putting in order, and shipment to New York of certain 272 and 268 bales of cotton, ex brig Lewis Clark and schooners Queen of the West, Julia Crawford, and R. E. Pecker, etc., and for information furnished and expenses incurred by him touching the cottons captured at Thomasville, Ga., and other cottons claimed by the Georgia Exporting and Importing Company, or by G. B. Lamar and held by government as captured or abandoned property, the sum of four thousand eight hundred and eighty-one dollars and ten cents ($4,881.10). You will therefore please issue your requisition upon F. E. Spinner, Esq., treasurer, U.S. special agent -- the same to be satisfied out of any funds in his hands as proceeds of captured and abandoned property -- for the amount named, viz., $4,881.10, in favor of George Peabody Este, whose full power of attorney to act in the premises is on file in this office

Page 115 U. S. 175

"

The draft therefor, when issued, should be handed to Mr. S. H. Kauffmann, a clerk in this office, for delivery to the payee under such instructions relative thereto as he may have or receive.

"Very respectfully,"

"H. M'CULLOCH"

"Secretary of the Treasury"

"Nathan Sargent, Esq're, Commissioner of Customs"

This settlement was made on the basis of giving to Mr. Cabell one-fourth part of the gross value of the cotton as sold at New York and deducting therefrom the $6,654 and the $6,883,89, and also one-fourth part of the expenses on the cotton before its shipment at Jacksonville, and for its transit from there to New York, and at New York, and adding $500 in respect of the Thomasville cotton, making a total allowance of $4,881.10, which sum was paid to Mr. Este, for Mr. Cabell, by Mr. Spinner, as special agent, by a draft on the Treasurer of the United States, May 27, 1867.

Page 115 U. S. 180

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