United States Circuit Court, Southern District of Ohio.

HENRY P. COOLIDGE v. COLUMBUS B. GUTHRIE.

An officer commanding troops of the United States in an insurgent state, during the late civil war, seized property of a citizen of the state, and after acquiring firm possession, sold it to a third person. After the war the owner at the time of the seizure brought an action of trover for the value of the cotton against the purchaser, in the Circuit Court of the United States.

Held, That the court had no jurisdiction. The seizure was made as an act of war, and its validity was not triable in a municipal court, in a common-law proceeding.

That this defence was admissible under the general issue in trover.

That after complete possession of the cotton by the captor for twenty-four hours it became booty by the laws of war, and the title of the hostile owner was completely extinct. If the plaintiff in this case had any right it was against the United States.

THIS was an action of trover brought to recover the value of cotton mentioned in the plaintiff's declaration. The defendant pleaded the general issue. The parties submitted the cause to the court-waiving the intervention of a jury.

According to the statute regulating the practice in such cases "the finding of the court upon the facts-which finding may be either general or special-shall have the same effect as the finding of a jury." * * "When the finding is special, the review" (by the Supreme Court of the United States) "may extend to the sufficiency of the facts found to support the judgment. (Act of March 3d 1865, ch. 86, § 4, 13 Stat. 501.) As this case was important in the principles which it involved, it was deemed proper to find the facts specially.

The facts were accordingly found upon the evidence as follows: 1. On the 12th of July 1862, General Samuel R. Curtis, commanding an army of the United States, took military possession of the town of Helena, in the state of Arkansas. That state was then in rebellion against the United States.

2. The cotton was all raised upon farms belonging to General Gideon J. Pillow, who was, at the time of the seizure of the cotton, in the military service of the rebel government. The farms were in the immediate vicinity of Helena.

3. General Curtis ordered the cotton in controversy to be seized and brought into Helena; and it was seized and brought there

accordingly. The wagons conveying it were protected by troops detailed for that purpose.

4. He sold and delivered the cotton to the defendant and one William W. Babcock, jointly. There were two sales-one of 200 bales, and one of 36 bales. Both sales were made at Helena, on the 26th of July 1862. The agreed price was 143 cents per pound. The average weight of the bales was 400 pounds.

5. Subsequently the defendant Guthrie delivered 82 bales of the cotton to Alfred Spink, at Memphis, pursuant to the order of a quartermaster of the army. Spink paid Guthrie $45 per bale for the cotton so delivered. Fourteen bales more of the cotton were taken by a gunboat, to be used, as was alleged, for caulking purposes. The residue, consisting of 140 bales, was shipped by the defendant to the city of New York, and there sold.

6. General Curtis alleged at the time of the seizure and sale of the cotton that his object was to apply the proceeds to the support of the starving negro population in the neighborhood of his camp. A small part of the proceeds were so applied. He received full payment for the cotton at the contract price. He never reported the seizure and sale to the authorities at Washington nor to any other public officer, and died without having accounted for the proceeds to any one.1

7. When the defendants bought the cotton it had been for several days at Helena in the military possession of General Curtis. It was in a damaged condition. The navigation of the Mississippi was at that time attended with peril to life and property. Babcock was killed at a landing twenty miles below Memphis, by guerrillas, on the 20th of October 1862. The value of the cotton at the time and place of purchase was 143 cents per pound-what the defendant and Babcock paid for it. The whole quantity of the cotton purchased and received by the defendant and Babcock was 94,400 pounds. The legal title and ownership of the cotton at the time of its seizure by General Curtis was in the plaintiff, Coolidge. He was a resident of Arkansas, but was in no wise engaged in the rebellion. All the facts relating to the cotton were known to the defendant and Babcock when they purchased.

The court doubtless found the facts as they were shown by the evidence or admitted by the counsel for the defendant, but the court says, "no Act of Congress had then been passed" regulating such seizures, and we are advised from another source that General Curtis satisfied the Government that all the moneys which he so received were expended in the public service.-EDS. AM. LAW REG.

Geo. H. Pendleton and Thomas M. Key, for plaintiff.

Sage & Hinkle, for defendant.

Opinion of the court by

SWAYNE, J.-The plaintiff is entitled to recover unless the grounds of defence relied upon by the defendant shall be found sufficient to protect him. If liable, the measure of his liability is the value of the entire amount of the cotton which he received, at 143 cents per pound, with interest from the 20th day of July 1862, the time of the alleged conversion. If he was then guilty of an illegal and wrongful act touching the cotton, his liability was fixed at that time, and the subsequent delivery to another of 82 bales, upon the order of the quartermaster, and the taking of 14 bales by the gunboat, can have no retroactive operation or in any wise affect the amount for which he must respond. Where property is tortiously taken, every one who receives it and exercises acts of ownership over it is guilty of a conversion and is liable for its full value, without reference to the liabilities of others through whose hands it may also have passed, either before or after the conversion by the defendant: Williams & Chapin v. Marle, 11 Wend. 81.

In the eye of the law the order of the quartermaster, and the act of the gunboat, are immaterial facts in the case, and may be laid out of view.

Two defences are relied upon by the defendant Guthrie.

1. That this court has no jurisdiction of the case.

2. That as soon as General Curtis acquired a firm possession of the property, by having it conveyed infra præsidia, the title of the plaintiff became ipso facto extinguished, and a complete title vested in the United States; and that if the plaintiff have any rights left in respect to the cotton, they must be asserted against the United States, and that he has none which can be enforced against the defendant.

When the transaction occurred the rebellion had risen to the proportions of a civil war, and was fully flagrant. Arkansas was enemy's territory, and all the property there was enemy property. Cotton was an article of foreign and domestic commerce. It was one of the main sinews of the power of the insurgents. They relied upon it for the purchase of arms and other munitions of war, and chiefly to supply them with financial means for the pro

secution of the strife. Important belligerent rights were conceded to them by the government of the nation. Their soldiers, when captured, were treated as prisoners of war. They were exchanged, and not held for treason. Their vessels when captured were dealt with by our prize courts. Their ports were blockaded, and the blockades proclaimed to neutral powers, and property found on board such vessels, belonging to persons residing in the rebel states, was uniformly held to be confiscable as enemy property. All these things were done as if the war had been a public one with a foreign power: The Prize Cases, 2 Black 687; Mrs. Alexander's Cotton, 2 Wall. 417; Mauran v. Insurance Co., 6 Id. 1.

No Act of Congress had then been passed which affects the case. No regulations issued by any department of the government prior to that time, relating to the subject, have been brought to our attention. The Acts of August 6th 1861 and of July 17th 1862 have no application.

General Curtis and his army are to be regarded, for the purposes of this case, as if prosecuting hostilities in a foreign country with which the United States were at war, and the case is to be decided upon the principles of law, applicable in that condition of things.

1. In respect to the defence first mentioned, the inquiry arises whether it should not have been presented by a special plea, and whether it can be considered under the general issue."

The question is the same whether a seizure jure belli be made. upon land or water. The case of Lecaux v. Eden, 2 Doug. 594, was of the latter class. The vessel had been restored and the captors condemned in costs and damages by a decree of the prize court. It was held, upon the fullest consideration, that the defence was admissible under the general issue. The grounds of the judgment were that the capture of the vessel and the imprisonment of the crew were not trespasses by the common law; that, if wrongs had been committed, they were triable only by the law of nations, and that no municipal court had authority to adjudicate upon the subject.

Such was the unanimous judgment of the court. If there were no trespasses by the common law there, a multo fortiori, there was by the common law, here, no conversion.

In Lindo v. Rodney, 2 Doug. 613, the point of pleading was