UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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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 clubjuris

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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. clubjuris

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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. clubjuris

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