A person having entered, January 23, 1866, into a contract with
the government to purchase, as its agent, "cotton which formerly
belonged to the so-called
Confederate States' now in the
possession of individuals in the Red River country (concealed),"
was not precluded by the fact of such agency and during it from
buying other cotton in that region
Page 83 U. S.
505
not formerly belonging to those so-called states, he having
discovered, when he went to the region, that there was no cotton
upon which his contract operated, and his contract not obliging him
by its terms to devote his whole time to the business of the
agency, nor from buying cotton if of a kind not such as was
described in his agreement.
A principal suit having been decided in one way, a proceeding by
way of intervention, and involving the same question, of necessity
follows it.
The Act of Congress of July 2, 1864, [
Footnote 1] in addition to that of a prior date, "to
provide for the collection of abandoned property and for the
prevention of frauds in insurrectionary districts within the United
States," enacted in its 8th section that it should be lawful for
the Secretary of the Treasury
"to authorize agents to purchase for the United States any
products of states declared in insurrection . . . at such prices as
ay be agreed on with the seller, not exceeding the market value
thereof at the place of delivery,"
&c.
This statute being in force, Tweed, upon the 23d of January,
1866, entered into a contract with one Burbridge, then deputy
general agent of the Treasury Department, in which, after
reciting
"that it is represented that large quantities of cotton, which
formerly belonged to the late so-called Confederate States, are now
in possession of individuals in the Red River country, concealed
from the knowledge of agents appointed to collect the same, and the
marks by which said former ownership could have been proved have
been destroyed, for the purpose of enabling the individuals holding
it to convert it to their own use; and whereas it is also
represented that most of this cotton is held at places and in
districts remote from military posts, so that, if it could be found
and identified, it could not be brought forward by the agents
except by increasing the expense of obtaining military aid in its
removal, and that the parties holding it dare not bring it within
the reach of the civil or military authorities for fear that its
true character may be discovered, thereby causing its seizure; and
whereas it is also represented
Page 83 U. S. 506
that a large portion of this cotton can be purchased from the
holders at much less than its real value if the purchaser will take
the title at his own risk of seizure by government
authorities,"
it was agreed that Tweed was to furnish all money necessary to
buy said cotton, together with all necessary assistance for the
purpose of transportation, and to
"use all proper efforts to purchase as much of said cotton
situated upon and near the Red River and its tributaries as can be
purchased, prepared for shipment, and transported to and delivered
at New Orleans at a cost not exceeding three-fourths its market
value there, and to deliver the same to said Burbridge in New
Orleans."
And thereupon Burbridge agreed to deliver to Tweed three-fourths
of such cotton in full of his interest therein.
On the 24th of February, 1866, the Secretary of the Treasury
wrote from Washington, D.C., a letter to the general agent of the
Treasury Department at New Orleans directing the termination of
this contract. As hereafter stated, Tweed received notice of this
revocation "in March, 1866."
Having obtained the contract above mentioned, Tweed bought from
various owners, at a fair market price, in and about Shreveport,
Louisiana, 495 bales of cotton; 463 bales of it were bought on or
before the 1st of March, 1866 (50 of these 463 on the 5th of
February preceding), and the rest upon the 5th and 8th of
March.
On the 10th of March, 1866, Burbridge was succeeded in his
office of deputy agent &c., by one Flanders.
The cotton reached New Orleans March 23, 1866, a part of it
having been shipped from Shreveport on the 13th of the same month.
Insurance on it was effected under an open policy of Burbridge,
deputy agent &c., and it came to New Orleans subject to
adjudication by said Burbridge &c.
On its arrival, Flanders, as successor of Burbridge, and the now
deputy general agent of the United States, claimed one-fourth of it
under the contract above stated, and accordingly delivered to Tweed
the three-fourths, but refused to deliver the other fourth.
Hereupon Tweed filed a petition in the court below claiming
Page 83 U. S. 507
the 123 bales which Flanders, a deputy general agent, retained.
The petition alleged that no part of the cotton which he had bought
in and about Shreveport was captured or abandoned property, and
that the United States had no right, title, or interest in the
same, or any part thereof; that the 123 bales retained were worth
$17,500; and that he Tweed, feared that Flanders would, pending the
suit, dispose of and remove them from the jurisdiction of the
court. It prayed for a citation of Flanders, sequestration of the
cotton until further orders, and that, after due proceedings, the
cotton be redelivered. The citation was granted and the cotton
sequestered &c.
The answer of Flanders denied that Tweed owned the cotton and
asserted that it belonged to the United States; that he, Flanders,
was in possession of it as an officer of the United States, by
virtue of a contract between Tweed and the Treasury Department, and
that the cotton, being virtually in the custody of the United
States, was not liable to sequestration, and that all his,
Flanders', acts in reference to it were official, and not private;
that accordingly the court had no jurisdiction over the matters
complained of, but that such jurisdiction was exclusively in the
Court of Claims.
The United States, intervening, stated that the cotton belonged
to them as sole owners, and that Flanders was in possession merely
as their agent.
The case was tried before a jury. The bill of exceptions showed
that evidence was offered which conduced to show:
"That the cotton was raised in the northern part of Texas by
planters, and was possessed by them until the winter of 1865-66,
and was sent to market or to Jefferson, Texas, as private property,
and that
it had never been captured by or surrendered to the
army or any military authority of the United States, nor included
in any surrender; that none of it was the property of the
Confederate States, or had been destined for their use, but was
private property; that the defendant testified that he had no
evidence at all to affect it as captured or abandoned
property; that while said cotton was deposited in the
warehouse at Jefferson, Texas,
Page 83 U. S. 508
one Turnbull, then an agent to collect abandoned and captured
property, published a notice for claimants of cotton to make oath
of their ownership, and failing to do this he would seize it as
captured property. One of the parties whose property was seized had
no notice of the order, and his property was taken and held by
Turnbull, and other property was seized by said Turnbull upon
protest of the same kind; and the testimony generally conduced to
prove these facts, and that in the opinion of the witness
his
seizures were oppressive, causeless, and for the purpose of
extortion."
"That
in March, 1866, the plaintiff went to Shreveport
under his contract; that he discovered that there was no property
of the kind described in the contract upon which it operated. He
was also informed that the contract had been revoked by the
Treasury Department.
The supervising agent at Shreveport first
gave him information to this effect. Thereupon he determined
not to take any proceedings under it, and so notified the agent at
Shreveport. During the months of February and March, he made
purchases of cotton from the owners of the cotton that had been
held and seized by Turnbull as aforesaid, and which was then in
custody of the agents aforesaid by reason of the seizure.
He
was informed that no evidence had been produced to affect the
claims of the owners and the purchases were safe. The
supervising Treasury agent at Shreveport, who held the cotton, so
advised the plaintiff."
THE PLAINTIFF asked the court to charge:
"If the cotton described in the petition was not captured by the
army of the United States, nor surrendered to them, was not
abandoned property, nor was ever property of the Confederate
States, but was produced on plantations of private individuals, and
was held and possessed as private property by them until the
purchase of the same by the plaintiff; and if he purchased the same
on his own account from such private owner, and the same was
delivered to him, and the same was so held until the detention of
the same by the defendant,
who did not take, or hold, or
possess it under color of any law or statute of the United States,
or any authority of his office, or color of the same, but of his
own will, the plaintiff is entitled to recover."
This charge the court gave, and the defendants excepted.
Page 83 U. S. 509
THE DEFENDANT asked the court, to charge, in effect:
"1. That a writ of sequestration would not lie if the defendant
held the cotton in question as deputy genera agent of the Treasury
Department, under the acts of Congress relating to captured or
abandoned property."
"2. That the circuit court had no jurisdiction by virtue of the
writ of sequestration to direct the cotton to be taken from the
possession of the defendant, if the same, at the time the writ
issued, was in his possession as such agent, under color of the
acts of Congress relating to captured and abandoned property."
"3. That the defendant, if he held the possession of the cotton,
as such agent for the collection of captured or abandoned property,
had the right to retain the same, and that the plaintiff could not
recover the property except by suit in the Court of Claims."
The court refused thus to charge; and the defendant excepted.
The jury found for the plaintiff, and judgment went
accordingly.
On the exceptions above stated, and on the refusal of the court
on motion to arrest the judgment, the cases were now here on writs
of error by both Flanders and the United States.
Page 83 U. S. 511
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Cotton in bales to a large amount was purchased by the plaintiff
from different owners of the same, for which he paid a fair market
value, as appears by the bills of sale exhibited in the record,
amounting in the whole to four hundred and ninety-five bales; [?]
that he shipped the same for his own account, to his own agents in
New Orleans, and that he paid the freight on the same, and the
other expenses and insurance. Testimony was also introduced by the
plaintiff
Page 83 U. S. 512
showing that the cotton was raised by planters in an adjoining
state, and that they continued to possess it until it was sent to
market; that the cotton had never been captured by, or surrendered
to our army; that none of it was the property of the Confederate
States, nor had it ever been destined for their use.
Prior to those transactions a contract had been made between a
supervising special agent of the Treasury Department and the
plaintiff, that the plaintiff should engage in the business of
collecting captured and abandoned cotton in that district. By that
instrument it was agreed between the parties that the plaintiffs
should furnish all money necessary to purchase the cotton, and all
the assistance required for the purpose, and all the requisite
transportation, and that he should use all proper efforts to make
the purchases and to transport and deliver the same to the other
party, at the port of New Orleans, in good shipping order, with
receipted bills of sale from the holders, at a cost not exceeding
three-fourths of its market value, and free and discharged of all
cost of purchase and expense of transportation. In consideration of
which the other party agreed to pay and deliver to the plaintiff
three-fourths of the cotton, of average quality, as compensation in
full for his services, and all costs and expenses. Efforts were
made by the plaintiff to make such purchases, but it appears that
he soon found that there was no cotton of that description within
the said district, and having learned that the contract had been
revoked by the Treasury Department, he determined to proceed no
further under that agreement.
Property of the kind, however, was seized by another party, to
whose transactions it becomes necessary to advert, in order to a
full understanding of the present controversy. He, the said other
party, published a notice for the claimants of cotton to appear and
make oath of their ownership, stating that if they failed to do so
he would seize it as captured property. Such property was seized by
that party, claiming to be an agent to collect captured and
abandoned property, but the evidence introduced tended to prove
that his seizures
Page 83 U. S. 513
were causeless and oppressive. Some of the cotton seized under
those circumstances, and which remained in the hands of the agents
of the party making the seizures, the plaintiff admits he
purchased, from the owners of the same, having been previously
informed by a supervising Treasury agent that no evidence had been
produced to affect the claims of the owners, and that it was safe
to make the purchases, and it appears that the cotton was shipped
to New Orleans with his other shipments. All of these transactions
took place while the other party to the written agreement was a
supervising special agent, but he was soon after superseded, under
the instructions of the Treasury Department, and the defendant in
the present suit was appointed in his place.
Enough is remarked to show the origin of the controversy, as the
defendant insisted that the written agreement between his
predecessor and the plaintiff was applicable to all the cotton
which the plaintiff had purchased and shipped, and that he, as the
successor of the other party to that agreement, was entitled to
hold one-fourth of the cotton so purchased and shipped, for the
United States.
Pursuant to that claim, the defendant made a division of the
cotton, and delivered three-fourths of the same to the plaintiff
and retained one-fourth of the whole amount. Demand of the other
one-fourth having been refused, the plaintiff instituted the
present suit to recover the residue of the cotton, being one
hundred and twenty-three bales, valued at the sum of $17,500.
Service was made, and the defendant appeared and made defense.
Proceedings in the meantime took place under the last paragraph
of the petition, in which the plaintiff prayed that a writ of
sequestration might be issued, directed to the marshal, requiring
him to take the cotton in question into his possession and to hold
the same subject to the order of the court, and he also prayed for
judgment decreeing that the cotton is his property, and that the
same be delivered to him or that he have judgment for the value,
with interest from judicial demand, and with privilege upon the
property sequestered. Process of sequestration was accordingly
issued
Page 83 U. S. 514
by the court, and it appears that it was duly served and
executed by the marshal.
Exceptions to the proceeding were filed by the defendant, in
which he alleged:
(1) That the cotton is captured property, and that it was at the
time the writ of sequestration was issued, and that the property,
as such, was in his possession and custody for the use and benefit
of the United States.
(2) That the circuit court is without jurisdiction of the case,
as the property sequestered is
de facto and
de
jure captured property under the acts of Congress, and that it
should be dealt with as the law provides.
He also filed an answer in which he denied that the plaintiff
was the owner of the property and set up the same defense as in his
preliminary exceptions. Subsequently the district attorney
intervened and alleged that the United States were the sole owners
of the cotton, and prayed that their claim might be allowed and
adjudged good and that the proceedings instituted by the plaintiff
may be disallowed and dismissed. Application was made by each party
to bond the property, but the application of the plaintiff was
granted and that of the defendant was denied.
Unsuccessful in that, the defendant next filed a peremptory
exception to the right of the plaintiff to recover in the suit, in
which he alleged that the plaintiff was not and never was the owner
of the property; that he never owned but a two-thirds interest in
the same; that the other third interest is, and throughout has been
in another party. Hearing was had and the court overruled the
peremptory exception and entered a decree recognizing the plaintiff
as the lawful owner of the property. Whereupon the defendant sued
out a writ of error and the cause was transferred to this Court,
where the judgment was reversed because the record did not contain
any stipulation in writing waiving a trial by jury, and the cause
was remanded for further proceedings. [
Footnote 2]
Pursuant to the directions of the mandate, the cause came in
order for further proceedings, and leave was granted to
Page 83 U. S. 515
the defendant to amend his answer, which he did by setting up,
in a more formal manner, the defenses mentioned in his preliminary
exception and in his former answer. Evidence was introduced by both
parties, and the jury, under the instructions of the court,
returned their verdict in favor of the plaintiff.
Four exceptions were taken at the trial, and the questions which
those exceptions present are the only questions open in the case
for reexamination. They relate to the instruction given by the
court to the jury, and the three requests for instruction presented
by the defendant which the court refused to give.
By the bill of exceptions it appears that the court instructed
the jury, in substance and effect, as follows: that if the jury
believe that the cotton was not captured by the army nor
surrendered to the national forces; that it was not abandoned
property nor ever the property of the Confederate States, but that
it was raised on the plantations of private individuals and that it
was held and possessed by the owners as private property until the
purchase of the same by the plaintiff; that the plaintiff purchased
the same on his own account from such private owners, and that he
held the same until it was taken by the defendant, and that the
defendant did not take, hold, or possess it under color of any law
or statute of the United States or any authority of his office or
color of the same, but of his own will, then the plaintiff is
entitled to recover.
Reasonably viewed, it is clear that the instruction given
covered every allegation of the claim and every ground of defense
set up both in the preliminary exception and in the amended answer.
Instructions given by the court at the trial are entitled to a
reasonable interpretation, and if the propositions as stated are
correct they are not, as a general rule, to be regarded as the
subject of error on account of omissions not pointed out by the
excepting party, as the party aggrieved, if he supposes the
instructions given are either indefinite or not sufficiently
comprehensive, is always
Page 83 U. S. 516
at liberty to ask that further and more explicit instructions
may be given, and if he does not do so, he is not entitled to claim
a reversal of the judgment for any such supposed error. [
Footnote 3] Courts are not inclined to
grant a new trial merely on account of ambiguity in the charge of
the court to the jury where it appears that the complaining party
made no effort at the trial to have the point explained. [
Footnote 4] Where the court charges the
jury correctly upon all the ingredients of the cause of action and
upon all the matters of the defense, it is not error in the court
to refuse to instruct as requested by either party, even though the
proposition presented is correct as an abstract proposition.
[
Footnote 5]
Beyond all doubt, evidence was introduced by the plaintiff
tending to prove every proposition involved in that instruction,
and it is equally clear that the evidence was of a character to
warrant the finding of the jury. Suppose that is so, still it is
insisted by the defendant that the instruction is erroneous because
it assumes that the plaintiff, notwithstanding the written
agreement to which he was a party, could make such purchases on his
own account, but the bill of exceptions shows that there was no
property to be purchased of the kind specified in the written
agreement, and that the plaintiff, having ascertained that the
authority of the other party had been revoked, determined not to
act under the agreement; that the plaintiff purchased the cotton on
his own account, and paid the whole of the purchase money, and that
none of the cotton had ever been captured by our army or
surrendered to our military authorities, and that none of it was
the property of the Confederate States or had ever been abandoned
by the owners.
Tried, as the case was, by a jury, it was certainly proper that
the court should submit the whole evidence to their determination,
and it is clear that the jury by their finding
Page 83 U. S. 517
have affirmed every proposition involved in the instruction in
favor of the plaintiff. Such being the fact, the rule is that where
the instructions given to the jury are sufficient to present the
whole controversy to their consideration, and the instructions are
framed in clear and unambiguous terms, it is no cause for the
reversal of the judgment to show that one or more of the prayers
for instruction presented by the losing party, and not given by the
court, were correct in the abstract, as the refusal of the court to
give the instructions as requested under those circumstances could
not work any injury to the party making the request, and therefore
cannot be regarded as error. [
Footnote 6] What more the defendant could properly have it
is difficult to see, as the court submitted every inquiry of fact
involved in the instruction to the judgment of the jury, and they,
having returned their verdict for the plaintiff, it follows that
the theory of fact assumed in the instruction is established as
true, unless a new trial is granted by the court which tried the
cause, or by the direction of this Court for error of law. Taken
together, the charge and the verdict, as perfected by the judgment,
afford a presumption that the theory of fact assumed in the
instruction is true, unless the contrary is stated in the bill of
exceptions, or it appears that there was no sufficient evidence to
warrant the court in submitting the questions to the jury.
[
Footnote 7]
Three requests for instructions were made by the defendant, to
the effect following:
1. That a writ of sequestration would not lie if the defendant
held the cotton in question as deputy general agent of the Treasury
Department, under the acts of Congress relating to captured or
abandoned property.
Sufficient has already been remarked to show that there was no
evidence in the case to warrant the court in submitting
Page 83 U. S. 518
such a question to the jury as an independent instruction, and
the exception is accordingly overruled. [
Footnote 8]
2. That the circuit court had no jurisdiction by virtue of the
writ of sequestration to direct the cotton to be taken from the
possession of the defendant, if the jury find that the same, at the
time the writ issued, was in his possession as such agent, under
color of the acts of Congress relating to captured and abandoned
property.
But the defendant had no right to seize the cotton in question,
as the evidence showed that it had never been captured nor
abandoned, and that the title to the same had become vested in the
plaintiff by purchase from the private owners. Proof to show that
the theory of the defense in that behalf is correct was entirely
wanting. On the contrary, the defendant himself testified that he
had no evidence
at all to affect it as captured or
abandoned property at the time the suit was instituted, which is
certainly sufficient to show that the instruction requested was
properly refused, as it is settled law that it is error in the
court to give an instruction when there is no evidence in the case
to support the theory of fact which it assumes. [
Footnote 9]
3. That the defendant, if he held the possession of the cotton,
as such agent for the collection of captured or abandoned property,
had the right to retain the same, and that the plaintiff could not
recover the property except by suit in the Court of Claims.
Throughout the several propositions of the defense, the theory
of fact is constantly interwoven that the defendant held the cotton
under color of the acts of Congress relating to captured and
abandoned property, but it is clear that a party cannot be held to
have acted under color or by virtue of an act of Congress which did
not confer any authority upon him, or any other person, to perform
the act which is in controversy. [
Footnote 10] Neither an officer nor an agent can
properly
Page 83 U. S. 519
be said to have acted under color of a law which neither gave
him nor any other person authority to do the act in question, nor
can an officer be said to have acted under the authority of his
office unless he has some appearance of right to it and is in
possession and acting in that capacity, as the acts of a mere
intruder or usurper of an office, without any colorable title, are
undoubtedly wholly void both as to individuals and the public.
[
Footnote 11] Whenever a
person sued sets up a defense that he was an officer or an employee
of the government acting under color of law, it plainly devolves
upon him to show that the law which he invokes authorized the act
in question to be done, and that he acted in good faith; but
nothing of the kind is shown in this case. Instead of that he
admits in his own testimony that he had no evidence at all to
affect the cotton as captured or abandoned property.
Apart from that defense the theory is also constantly set up
that the plaintiff during that period could not purchase cotton of
the owners even though it was neither captured nor abandoned
property, as he was, by virtue of that agreement, an agent of the
United States, to which two answers may be made, either of which is
sufficient to show that the theory is unfounded and without
merit:
(1) Because the agreement does not contain any stipulation that
the plaintiff should devote his whole time to the business of the
agency, nor any other of a character to prohibit him from
purchasing cotton from the private owners if the same was not
included in the category of the cotton described in the written
agreement.
(2) Because the written agreement never in fact became
operative, as the plaintiff, not finding any such cotton in the
district specified, never made any such purchases.
Nothing need be added in respect to the ruling of the court in
denying the motion in arrest of judgment, as the motion raises the
same questions as those involved in the prayers for instruction
presented by the defendant and which were refused by the court.
Page 83 U. S. 520
Mention has already been made of the fact that the United States
intervened in the suit, and the record shows that their claim was
subsequently dismissed and that they also sued out a writ of error
and removed the whole proceeding into this Court, which is number
136 on the calendar.
All that is necessary to add upon the subject is, that the
principal suit having been decided in favor of the plaintiff, the
proceeding in intervention must necessarily fall with the defense
set up by the defendant in that suit.
Judgment in each case affirmed.
[
Footnote 1]
12 Stat. at Large 820,
[
Footnote 2]
Flanders v.
Tweed, 9 Wall. 425.
[
Footnote 3]
Castle v.
Bullard, 23 How. 189;
Rogers
v. The Marshal, 1 Wall. 654.
[
Footnote 4]
Locke v. United States, 2 Clifford 580;
Express Co. v.
Kountze, 8 Wall. 353.
[
Footnote 5]
Mills v.
Smith, 8 Wall. 27.
[
Footnote 6]
The Schools v.
Risley, 10 Wall. 115;
Law v.
Cross, 1 Black 536;
Tome
v. Dubois, 6 Wall. 555.
[
Footnote 7]
Russell v.
Ely, 2 Black 580;
State v. Hopkins, 5 R.I.
58;
Murray v. Fry, 6 Porter (Indiana) 372;
Day v.
Raguet, 14 Minn. 283.
[
Footnote 8]
United States v.
Breitling, 20 How. 254.
[
Footnote 9]
id.; Goodman v. Simonds, ib., 61 U. S.
359.
[
Footnote 10]
Reynolds v. Orvis, 7 Cowen 272;
Bigelow v.
Stearns, 19 Johnson 40;
King v. Bedford, 6 East 369;
Britton v. Butler, 9 Blatchford 462.
[
Footnote 11]
Plymouth v. Painter, 17 Conn. 593;
People v.
White, 24 Wendell 525;
Carleton v. People, 10 Mich.
258;
People v. Hopson, 1 Denio 579.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE DAVIS,
dissenting.
I dissent from the opinion of the court in these cases. Tweed,
the defendant in error, repaired to the Red River region to
purchase cotton, under a written engagement with a government agent
to purchase and pay for the same, and to deliver one-fourth part to
the government, upon the express consideration stated in the
agreement, that it was well known that a great deal of cotton
belonging to the Confederate government was in that district, but
could not be identified, and was kept back by the parties having it
in possession for fear of its being seized. Tweed was to have the
prestige of government protection; was to purchase any cotton he
could find for sale, without any questions; was to send it to the
government agent at New Orleans, and there three-fourths of it were
to be set apart to his use and one-fourth to the use of the
government. This was the general purport and effect of the
agreement. There cannot be a doubt, from the evidence in the case,
that he derived great advantage from his semi-official character.
But having made his purchases, he concluded that it would be a
better speculation to have all the cotton than only three-fourths
of it; and therefore he sets up the pretense that he did not act
under the agreement, but on his own independent account. The
cotton, however, went forward, protected by the general policy of
insurance taken out by the government agent, and arrived at New
Orleans. The government agent, Flanders,
Page 83 U. S. 521
took possession of it, and gave up to Tweed his three-fourths,
according to the agreement. The balance he retained for the
government, against Tweed's consent, and was sustained in his
action by the Secretary of the Treasury.
Tweed sued out a sequestration (a writ in the nature of the
common law replevin) from the United States Circuit Court of
Louisiana, and by virtue of that writ one-fourth part of the cotton
held by Flanders, the government agent, for the government, was
taken out of his possession, and the court held that this was a
lawful exercise of the judicial authority.
Now on the merits of the case I cannot concur in the opinion
that Tweed could, under the circumstances, repudiate his agreement;
but I think he was bound by it and by his acts, and was estopped
from asserting an independent purchase of the cotton on his own
account, and that the charge of the court should have been to that
effect, and that the charge given and the refusal to charge as
requested were erroneous.
I also hold that this was a suit against the government itself.
Flanders did not hold the cotton on his own account, but on
government account, and his acts were sanctioned and adopted by the
Treasury Department. He was acting for the government, and his
possession was the government's possession. Whether he was acting
lawfully or unlawfully was a question which the court could not
decide by an adverse proceeding in a suit brought for the recovery
of the cotton.
This is a very different case from that of a replevin brought by
the owner of goods unlawfully taken by a sheriff upon execution
against another person. Goods in the custody of the law, seized for
the benefit of a private party, in satisfaction of a judgment or to
meet an asserted claim, may be replevied by the true owner; but
goods claimed by the government itself, as its own goods, and held
by its agents in possession, cannot be reclaimed in this manner.
They can only be reclaimed by application to Congress or, in
certain cases, to the Court of Claims.
Page 83 U. S. 522
Nor is the case governed by that class of cases in which a
mandamus will lie against a government officer to compel him to
perform a ministerial duty. Such a writ is issued, or is supposed
to be issued, by the government itself to compel its officials to
do their duty to its citizens.
