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475*] *H. B. TITUS, Informer, Plff. in Err., and employed in aiding, abetting and promot

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UNITED STATES.

(See S. C., 20 Wall., 475-485.) Captured public property-civil war- —Confiscation Act-informer-cannot inform against public property-estoppel.

1. In war, the public property of an enemy captured on land, becomes, for the time being, at least, the property of the conqueror. No judicial proceeding is necessary to pass the title.

2. This well settled principle in the law of war is applicable to the late civil war; at its close the title to all captured property of the Confederate Government then became absolute in the United States.

3. The Confiscation Act of Aug. 6, 1861, was in tended for private not public property; for such property of persons as required, under the laws of war, a judicial sentence of condemnation, to devest the title of its owner.

4. An informer, to entitle himself under that Act to the statutory reward for his service, must in form against property which is the subject of judicial condemnation.

5. He cannot inform against property which was already the property of the United States by completed conquest.

6. The United States is not estopped by proceedings of condemnation instituted in behalf of itself and an informant, nor by the receipt of the purchase money from denying, as against the informer, that the property in question was the subject of forfeiture on joint account under the Act.

[No. 18.]

ing" the rebellion, and was, therefore, confiscable under that law and for that reason.

The plaintiff in error was the informer at whose instance the law was enforced, and for whose benefit, equally with the United States, said confiscation proceedings were instituted.

About this fact there can be no question. 1. Because, in the very beginning of the information filed by the United States District Attorney, he alleges that "he prosecutes for the United States and an informant." 2. Because this informer, in his petition to the district court, directly asserts this fact; and 3. Because the United States District Attorney, in his answer thereto and by a contemporaneous certificate filed in the case, both expressly and by implication, admits the same fact.

The only objection in point of form which could be possibly made in this respect is, that the informer is not expressly named in the information; but this objection, which was urged in the circuit court, has no validity, as has been expressly decided by this court in the confiscation cases 7 Wall., 462, 19 L. ed., 199.

After the failure in this case, by everyone, to object to the decree of condemnation, in the language of this court: "It then became the duty of the court to render the decree for distribution." But it cannot be doubted that, after the decree in favor of the informer, and the writ

Argued Nov. 12, 13, 1874. Decided Nov. 30, of error sued out by the United States to re

1874.

verse that decree, and the reversal of that decree, the informer, of course, became entitled

IN ERROR to the the a

States for the Southern District of Georgia.
The case is fully stated by the court.
Messrs. Jno. A. Wills, E. Totten and W.
G. M. Davis, for plaintiff in error:

Admitting, for the purpose of the argument, that the United States had two grounds for claim or title to the confiscated property in question:

1. That arising under the Confiscation Acts of August 6, 1861, and July 17, 1862, represented by the Attorney General of the United States and the District Attorney for the Southern District of Georgia; and 2, that arising by conquest or by the surrender of the Confederate States on the field of battle, represented by the Commissioners of the Freedmen's Bureau, un der the 12th section of the Act of July 16, 1866, still the United States had a right to elect and by the concurrent action of these several officers did elect to rely upon and assert its title to the said property and to enforce and dispose of its title thereto by the proceedings in confiscation instituted at the instance of the informer, the plaintiff in error in this case, and the United States was bound by all the legal consequences and incidents of that election.

The land which was confiscated by the judgment of the district court, was confiscable under the Confiscation Acts of the United States, of August 6, 1861, and July 17, 1862.

The fact that the land had been conveyed by its former owners directly "to the Confederate States," and had been used and employed by them in aid of the rebellion, did not render it any the less nor any the more confiscable, under those laws, than it would have been if the title had remained in its former owners; because, in either case, it would have been equally "used

which, however, according to the last authority he did not possess prior to the decree in his favor.

See McVeigh v. U. S.. 11 Wall., 267. 20 L. ed., 81; Miller v. U. S., 11 Wall.. 293, 303, 20 L. ed., 140, 143; Confiscation cases, 7 Wall., 462, 19 L. ed., 199; Union Ins. Co. v. U. S., 6 Wall., 759, 18 L. ed. 879.

The facts show that, in point of fact, in the insurrectionary States, but little value was attached to property held by the title of conquest, while the fullest confidence was given to a title, acquired by judicial proceeding under the confiscation laws; and that, therefore, the Commissioner of the Freedmen's Bureau acted wisely in this case by electing to assert the title of the United States, in and by the proceedings in confiscation.

What, then, was the legal effect of that election?

This question was submitted to Atty-Gen. Stanbery in regard to the Macon Armory property. He was asked, "If, in his opinion, a complete title to that property was not already vested in the United States, to direct such proceedings to be instituted as may be necessary for the purpose of having the title perfected."

Under date of October 5, 1866, after the information in this case had been filed, he said:

"The United States is within possession of the property, I understand and, in so far as the operation of the law of war may be concerned, the title is as perfect now as it can become.

The property, however, may be liable to confiscation under the Act of August 6. 1861. etc. In respect to the institution of proceedings un der that statute, the first objection that occurs to me is, that it weighs the claim of title by con

quest. Furthermore, on the filing of the information, the property would pass at once into judicial custody, and continue in such custoay until the determination of the cause, etc. I do not think that I can safely direct judicial proceedings against the property, etc. I mention that law, of August 6, 1866, as it is the only one known under which an allegation of forfeiture could probably be framed.

12 Ops. Attys. Gen., pp. 76-78.

The course which that distinguished lawyer declined to adopt in regard to the Macon Armory, was adopted by the U. S. District Attorney in the case of the Macon Laboratory and, as we contend, with the very effect which he foresaw and pointed out. The armory property, the United States would probably need for military purposes. It could, therefore, continue to hold it by conquest. But the laboratory it did not need for such purposes. It was, therefore, wiser to sell it by proceedings in confiscation, which would give a good title.

Messrs. Geo. H. Williams, Atty. Gen., and S. F. Phillips, Solicitor Gen., for defendant in

error:

There seems to be no suggestion anywhere that Titus filed an information with the district attorney, as required by the statute. He did file an information; that is, probably, from what he says in his petition and the district attorney certifies, he informed the district attorney of the existence of the coveyance to the Confederate States, and afterwards produced a registered copy of the same to be used as evidence on the trial. We submit, in this connection, that what the district attorney certifies is no part of the record, even were evidence admissible in any case, upon the issue of law raised here by the demurrer. Whether he is required to be a party, or to place his name upon the information, is not material, so long as he did not, as required by the statute, file an information; that is, as we understand it, file a formal paper containing a detailed statement of the case upon which the United States claims a forfeiture; a formal paper which "institutes the proceedings" and renders the informer filing it liable for costs and damages.

There is an essential difference between an informer and an informant. Titus, very probably, was the latter, whilst he did not sustain the part of the former, as defined by the words of the statute.

hold under the judicial proceedings, and not by the hand of the army, we submit that a person, claiming as does the plaintiff, can avail himself of no estoppel here, either of record (for the plaintiff is no party to it) or in pais (as he is a mere volunteer, and that, without having incurred any risk of harm). For suppose that the case were one of an "information" regularly filed and successfully prosecuted in respect to property which turned out before distribution to have been the property of the United States, the exigencies of this case require the learned counsel to sustain a principle to the effect that even then there would be a case of election and estoppel. This is in the teeth of the doctrine that the United States is not bound by the laches of its official. In particular, its relation towards informers is such. that their claims have no technical value at any time. If the property were really not first acquired by the United States under the proceedings set on foot and carried out by the informer, there is no reason for not treating his claims, up to the latest moment before distribution, according to that which is the very right of the matter.

Mr. Chief Justice Waite delivered the opinion of the court:

The material facts in this case, as shown by the record, are as follows:

On the 2d December 1862, the executors of the will of Charles J. McDonald being fully authorized, sold and conveyed to the Confederate Government, certain land in Bibb County, Georgia, to be used in promoting the rebellion against the Government of the United States. This land remained the property of the Confederate Government, and was used in aid of the rebellion until the final surrender of the Confederate Army, when it was taken possession of and held by the military forces of the United States. On the 17th July, 1866, while it remained so in the possession of the military forces, Titus filed with the district attorney an information against it under the act of *August 6, 1861, 12 Stat. at L., 319. [*476 The district attorney, in pursuance of such information and prosecuting for the United States and informer, on the 15th January, 1867, commenced proceedings in the District Court of the Southern District of Georgia, for the condemnation and sale of the property, alleging the conveyance to and use by the Confederate Government, and averring that, by the surrender of the Confederate Armies, it had become the property of the United States. No person appeared in the action to defend, or offered to claim the property, and on the 26th February, the formal judgment of forfeiture and sale under the Act was entered. A warrant of sale was issued on the 25th March, 1867, to which the Marshal, on the 21st November, returned that on the 8th May he had postponed the sale upon the order of the district attorney. On the 17th June, Titus filed a petition in the cause, asking to be made a party and for a judgment, asserting his right to one half the proceeds of the sale and directing its payment to him. The prayer In reply to what is suggested on behalf of of this petition was granted on the 8th April, the plaintiff in error as to the election made by 1868, and on the 20th January, 1870, the Marthe United States to avail itself of one title shal made a second return to the warrant of rather than another; and consequently of its sale, to the effect that he had sold the property being bound now, in favor of the plaintiff, to' for $19,542.75, and had paid the purchase mon

The case is one for applying the maximQuod sub certa forma concessum vel reservatum est, non trahitur ad valorem seu compensationem. Titus must enter through the door opened by the statute, or not at all.

Leaving out of view the statements transmitted from below as to Titus' character as an army officer, etc., which may be no part of the record. it is admitted by the demurrer that this land was, at the time of the information given by Titus, and also when taken by the Marshal under process in this case, already in the hands of the United States represented by its army, having been taken by the latter out of the custody and control of the public authorities of the Confederate States.

ey into the registry of the court. On the 19th | only to a laboratory in which ammunition is April following, the Commissioner of the Freed-prepared, but to the ammunition itself; [*483 men's Bureau asked for and obtained an order for the payment to him of one half the net proceeds of the sale. The district attorney, on the 2d May, filed a motion to set aside the judgment in favor of Titus, and that being refused, took a writ of error to the circuit court, where the judgment was reversed. The case is here for a review of this action of the circuit court.

In war the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. Usually the ultimate ownership of real property is settled by the treaty of peace; but so long as it is held and not surrendered by a treaty or otherwise it remains the property of the conqueror.

This well settled principle in the law of war was recognized by this court in U. S. v. Huckabee, 16 Wall., 434, 21 L. ed. 464, as applicable to the late civil war. At the close of that war there was no treaty. When the insurrection was put down, the government of the insurgents was broken up and there was 482*] *power to treat with. Hence the title to all captured property of the Confederate Government then became absolute in the United States.

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Titus, however, claims as an informer under the Act of 1861, 12 Stat. at L., 319. This Act provided, in substance, that if, during the (then) present or any future insurrection against the Government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment, of the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such "prizes and capture" might be seized, or into which they might be taken and proceedings first instituted. The Attorney-General or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and, in such case, they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.

Clearly this Act was intended for private, not public property-for such property of persons as required, under the laws of war, a judicial sentence of condemnation to devest the title of its owner-not such property of a hostile government as had already been captured by an army and subjected to the complete and undisputed dominion and ownership of the conquering power. It applies, as will be seen. to all property, personal as well as real. Not

not to armories simply, but to their product. If the laboratory, owned by the hostile government, when captured in the progress of the war and held by the army, can be informed against and condemned for the benefit of the informer and the United States, so also can the ammunition prepared therein and captured in battle. If the armory, then the gun. Once incorporate this statute, with such a construction, into the law of war, and the attention of the soldier in battle will be divided between the capture of arms, ammunition and stores on the field, and the search for a district attorney with whom to lodge a statutory information, and demand, as a matter of right, a proceeding in the court for its condemnation on the joint account of himself and the government in whose service he is. We doubt if the counsel for the informer in this case, who has so earnestly and so ably advocated the cause of his client here, would be willing to enlist himself in behalf of such a claim; and yet it is difficult to see how, if he succeeds in this, he might not in that.

An informer, to entitle himself to the statutory reward for his service, must inform against property which is the subject of judicial condemnation. There can be nothing to divide if there is nothing to condemn. In this case the land, when informed against, was already the property of the United States. The title had passed by the completed conquest. There was nothing to reach by judicial process. Information, in the statutory sense, could do no good. The property had been devoted to the war and followed its fortunes. The capture was the result of many battles, but it was none the less, on that account, captured property, needing no judicial sentence of forfeiture to make it absolutely the property of the United States.

But it is claimed that the United States is estopped by the proceedings of condemnation instituted, as they were, in behalf of itself and an informant, from denying, as against the informer, that the property in question was the subject of forfeiture on joint account under the Act. There is no pretense that there was any claim, adverse to the title of the *United [*484 States as conqueror, that was, or could be, cut off by the judgment of the court. It will hardly be contended, we think, that if, after the close of the war, an information had been filed with the district attorney against the Charleston custom-house, and he had proceeded to have it condemned under the Act, the United States would be estopped from objecting to the claim of an informer for one half its value, and yet the custom-house, although owned by the United States before the war, was no more its property at the close than was the laboratory informed against in this case, if the statements in the record are true. The very libel of information, filed by the district attorney, shows upon its face that the title of the United States was then complete, and the fair inference from the petition of Titus to be made a party to the cause is, that the case made by the libel is the same as that he presented to the attorney for proceedings. Certainly the United States are not prohibited from asserting, as against the informer, that the case he brought to its consideration, and upon which it acted, was not one in which he could be interested.

*AUGUSTIN I. AMBLER, Appt., [*546

v.

But it is further claimed that there is an estoppel in favor of this informer because the Commissioner of the Freedmen's Bureau omit- RODNEY M. WHIPPLE and Thomas S. Dick.

ted to appear and resist the judgment of condemnation, and, after the sale was made, applied for and received from the court one half the proceeds.

The Act of July 16, 1866, 14 Stat. at L., 173, gave the Commissioner of that Bureau the control and management of property of the character proceeded against, for certain purposes specified, but in this he was only the agent of the United States. His Bureau was the Department of the Government authorized to manage the trust to which the property had been devoted. He is not estopped if the United States are not, and his neglect to appear and defend against the proceedings can certainly have no more effect against the United States than the institution of the original proceedings.

Neither was an estoppel created by the receipt of the purchase money. The order in re

or of the informer was made on the 8th April, 1868, and the property remained unsold 485*] *until December 7, 1869. On the 19th April, 1870, the Commissioner made his application to the court for the money. One half the proceeds was all he could ask for, so long as the judgment in favor of the informer remained in force. This he applied for and received, and on the 2d May the proceedings now under consideration were commenced to set aside that judgment. Certainly, under these circumstances, it cannot be said that, even if he had the power to do so, the Commissioner has yielded the claim of the Government to the money which had been adjudged to the informer.

erson.

(See S. C., 20 Wall., 546-559.) Contract, when concluded-partnership, when may be ended-bad habits of one partner.

1. Where both parties intended to have a written instrument signed by each, as the evidence of any contract they might make, no contract is concluded until it is fully executed by both parties.

2. Bad character, drunkenness and dishonesty of own motion, to treat the partnership as ended and one partner does not authorize the other, of his take to himself all the benefits of their joint labors and joint property.

3. One partner, on the facts, charged as trustee for the other, with one half of all realized from the use of two patents.

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The case is fully stated by the court.
Messrs. Geo. P. Fisher, G. W. Paschal,
R. D. Mussey and R. Mason, for appellant.
Messrs. John A. Balestier and H. E.
Paine, for appellees.

Mr. Justice Miller delivered the opinion of the court:

This was a suit in chancery in the Supreme Court for the District of Columbia, the plaintiff there being appellant here.

bler and Whipple, formed for the purpose of It grows out of a copartnership between Amexperimenting with and bringing to perfection an invention by which gas for lighting and heating and other useful purposes was to be generated from petroleum; for obtaining a patent or patents for the result of their labor, and for the management of the business after such patent had been obtained.

The terms of the partnership are clearly stated in a memorandum of agreement, signed by the parties, consisting of nine articles.

It sufficiently appears from these articles, that *Ambler was looked upon as the [*547 man of inventive genius, and Whipple as the man of business and the source of the funds necessary to conduct the experiments and place the affair on a successful footing.

Very different questions, and very different principles of estoppel, will have to be considered if the United States or the Commissioner shall ever attempt to assert title against the purchasers at the sale. They claim under the sale, and have paid their money in consequence of the offer of the United States to sell in that way. The informer stands in no such position. He has parted with nothing he ever had. He stands upon the original title. If, when he informed, the United States had no title, and through his information one was acquired, he is entitled to the statutory reward for his service. But if the United States had then a per- By these articles it was agreed that, if sucfect title and nothing could be added to it by cess attended their efforts, the profits were to reason of his information, he has done nothing be equally divided, after deducting the expenfor which the statute has provided a reward. ditures which Whipple might find necessary to That Whipple might have full Whether he should be paid for furnishing the be advanced. Government with information by which it has control of his branch of the joint venture, it been able to make its conquest available, is a was stipulated that Ambler should assign to question we are not called upon to consider. We him his interest in the patents which might deal with him only as an informer under the Ambler did execute an assignment of all his inissue; and in pursuance of this stipulation, statute, and as such he has no standing interest in the invention, and in the patents which

court.

is

In the view we have taken of the case. it not necessary to consider whether the district court erred in permitting Titus to become a party to the proceedings after the judgment of condemnation had been entered, and all chances of liability for costs had been resolved in his favor.

The judgment of the circuit court is affirmed.

might be granted thereon. The articles of partnership are dated May 24, 1869, and the assignment the day after.

In view of the present controversy, the most important of these article of agreement is the sixth, which is in the words following:

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NOTE.-Sufficiency of contract by offer and acceptance without execution of contemplated formal instrument-see note, 29 L. R. A. 431.

"Article sixth. That any and all letters pat, that through one Warwick Martin, he had purent that may be obtained in this country and chased of Ambler all his interest in the patent all other countries, by virtue of said invention, of Whipple and Ambler, and in the partneror by reason of any improvement or of any ship business in which they had been engaged. modification or the same by either party, shall The answer contains allegations of the fact be owned by and between the parties to this that, before the partnership commenced, plainagreement in equal shares, to wit: one undi- tiff had been convicted of a felony and was vided half to each, and all proceeds of sale or otherwise infamous; but neither in the answer sales of any and every kind and character, nor in the cross-bill where this matter is reshall be shared by and between the parties, peated, is it stated that this fact came to his share and share alike." knowledge after he had entered into the partnership.

As we have already said, a cross-bill was filed by the defendant, Whipple, setting up the release of Ambler, his improper conduct, the failure of the experiments with the original invention, and praying that Ambler be enjoined from setting up any right or claim against him on account of said invention, or on account of the articles of agreement between them. To this Ambler answered very fully, denying the release and denying the failure of the invention and his abandonment of it. Dickerson's separate answer contains nothing of moment not included in Whipple's.

The bill alleges that, after experimenting three or four months, a result was obtained and a patent issued in the name of Whipple and Ambler, No. 92,687, dated July 18, 1869, and that while the patentees were experimenting under this patent, and seeking remedies for apparent defects and for improvements in their invention, the true principle of success was developed about the 20th or 21st day of August; that, immediately thereafter, the defendant, Whipple, conceived the design of excluding the plaintiff from any benefit of the invention, and commenced a course of proceeding for the purpose of defrauding him of his rights; that in 548*] *pursuit of this scheme, he introduced the other defendant, Thomas S. Dickerson, in the absence of the plaintiff, to the place where the experiments had been made, and to the machinery which had been used, and that in a few days Dickerson applied for a patent, afterwards issued, which embodied the invention of Ambler, with only a colorable variation; that thereafter Whipple and Dickerson entered into a copartnership, and successfully introduced the invention of plaintiff into use, and by sales of particular States and districts, had received in a short time over $100,000; that plaintiff had been forcibly debarred from the workshops where his invention was used, and denied all interest in the result of his labors. This is theory. substance of the bill of complaint, and the relief prayed is, that Whipple and Dickerson make discovery of the sales and profits; that they be enjoined from the use of plaintiff's invention, and for a decree for compensation and damages.

The answer of Whipple admits the original agreement and assignment, and the issue of the patent to Whipple and Ambler. It admits also the partnership with Dickerson, and the issue of the patent to Dickerson. It denies all intent to defraud complainant, but admits the sales or contracts for sale of the Dickerson patent. It denies the identity of the two patents or the invention set forth in them. It charges that, after a full experiment with the first patent, it proved a total failure, and that complainant abandoned all further effort with it, and left the City of Washington, where the experiments had been conducted. That Dickerson, having been previously engaged in inquiries in the same direction, perfected an invention of great value, which effected what he and Ambler had failed to do, and that he thereupon entered into a partnership with Dickerson in regard to that invention as he had a right to do, and that in the sales, contracts or profits, growing out of this patent, plaintiff had no interest whatever.

549*] *He sets up as a further defense, that defendant, by his drunkenness, dishonesty and general bad repute, had rendered a continuance of the partnership impossible; and |

It is to be observed that neither party prays for a dissolution of the partnership. Indeed, the bill and cross-bill, and the answers to both, proceed upon principles which do not recognize the partnership as existing. The complainant seems to imply that, by reason of Whipple's course of conduct, he is remitted to all his rights as the inventor, and claims that being the sole inventor of the successful machine he is entitled to all the benefit of it. Whipple assumes that by his purchase from Ambler, and Ambler's misconduct, the partnership has been dissolved, and he has succeeded to all its rights, if they are of any value.

The testimony is voluminous and contradictIn the view we shall take of the case, while the decision will mainly turn on these questions of fact, we shall only state the effect which the testimony has had upon our minds without referring to it in detail.

1. If the complainant really released or sold his interest in the partnership business, or in the patent of Whipple and Ambler, his case is at an end, and we will, therefore, consider that question first.

An instrument of writing is produced which is supposed to have that effect. It recites the issuing of the patent, No. 92,687, the assignment of it to Whipple, the articles of partnership, and that a disagreement existed between Ambler and Whipple in regard to the construction of the invention; that Ambler is anxious to be released from his obligations to Whipple, and is willing to convey all his interest in the invention to Whipple, and then declares that in consideration of the full discharge of $1,000 due by Ambler to Whipple, Ambler sells and conveys all his interest in the invention and in all improvements made, or which may be made by Whipple, and that Whipple releases Ambler from all obligations on account of the contract and from the payment of the $1,000. There is no doubt that the language of the instrument is sufficient for the purpose *for which [*556 it was intended, but it wants the signature of Ambler. Nor is it pretended that he ever signed it or any copy of it. It is clearly on its face a paper which requires the signature of both parties to make it binding on either.__Te

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