appears by the records in this department that the cotton at Thomasville was turned over to Mr. Browne* 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 November 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 eighteenth 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 eleventh 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 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 seventeenth of February, 1866, Mr. Cabell, being in Washington, sent to the defendant a letter, in which he said:

"WASHINGTON, D. C., February 17, 1866. "Hon. Hugh McCulloch, Sec'y of Treasury-SIR: In accordance with your letter of the seventeenth November 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 & 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 sixteenth November last. Most of the cotton purchased for the above company in Florida and southern Georgia was made by one who signs*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 bales.

On the twenty-seventh of February, 1866, Mr. Cabell presented to the treasury department a petition, setting forth that on the twenty-second 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 fourth of May, 1866, the defendant sent the following letter to Mr. Draper, the United States cotton agent at New York:

*"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 & 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 & Peck, the sum of three hundred and fifty dollars, ($350,) being at the rate of five dollars ($5)

per day from the seventeenth of November last, the date of my letter authorizing him to take action in the premises, to the twenty-fifth 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.* 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 twenty-fifth 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 & Importing Company, or by G. B. Lamar, and held by government as captured or abandoned property, the sum of four thousand eight hundred and eightyone 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. The draft, therefore, 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. MCCULLOCH, 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. Čabell, by Mr. Spinner, as special agent, by a, draft on the treasurer of the United States, May 27, 1867.

The foregoing written documents show the connection of the defendant with the case. Mr. Cabell's application or petition of November 16, 1865, claimed compensation for having collected or secured cotton, cedar timber, and cattle. It enumerated the property. The defendant, in his letter of November 17, 1865, to Mr. Cabell, refers to it all as "captured property," but says that as none of it had been actually placed in the possession of any agent

of the treasury department, or removed from the places where it had been discovered, he desires that Mr. Cabell will return south and do all in his power "to secure to the government the cotton named" by him, and "to transport the same to a proper place of shipment." Only cotton was to be secured; and it is a fair interpretation of the letter that the cotton was to be secured as having been "captured property," and that it was referred to by the defendant as a part of the "captured property" enumerated by Mr. Cabell. Mr. Cabell, in his letter to the defendant of December 11, 1865, speaks of the 170 bales he had already shipped as cotton "formerly owned by the Exporting & Importing Company." The defendant, in his letter to Mr. Cabell of Decem ber 29, 1865, says that his letter of November 17, 1865, was intended to em power Mr. Cabell to take into his 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;" that a perusal of that letter will show that it was not intended to do more than secure his services in connection with the lots of property which had been specified by him; and that "no indiscriminate seizures and collections were contemplated by it." Mr. Cabell's letter to the defendant of February 17, 1866, says that the 272 bales he had shipped from Jacksonville to New York on January 25, 1866, were "owned by the Exporting & 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." In his petition of February 27, 1866, to the defendant, Mr. Cabell states that he had been appointed by Mr. Alexander, in July, 1865, to "collect and receive all the cotton, tobacco, and other property belonging to the United States," and speaks of the 268 bales as "government cotton," and speaks of Mr. Alexander as agent of the treasury department, "under the regulations of said department for the collection of captured and abandoned property in the disloyal states." In his letter of May 25, 1867, to Mr. Sargent, the defendant speaks of the 272 and 268 bales as being "held by government as captured or abandoned property," and directs the $4,881.10 to be paid out of the "proceeds of captured and abandoned property."

By section 1 of the act of March 12, 1863, c. 120, (12 St. 820,) the secretary of the treasury was authorized to appoint special agents "to receive and collect all abandoned or captured property" (with specified exceptions) in any state designated as in insurrection by the proclamation of the president of July 1, 1862, (12 St. 1266.) Florida was such a state. By section 2 the property collected, if not appropriated to public use, was to be forwarded to a place of sale in the loyal states, and sold at auction, and the proceeds paid into the treasury of the United States. By section 3 the secretary of the treasury was to cause "books of account to be kept, showing from whom such property was received, the cost of transportation, and proceeds of the sale thereof." Section 3 further provided as follows: "And any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the court of claims; and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.” By section 3 of the act of July 27, 1868, c. 276, (15 St. 243,) it was declared to have been the true intent and meaning of the act of March 12, 1863, "that the remedy given in cases of seizure made under said act, by preferring claim in the court of claims, should be conclusive, precluding the owner of any property taken by agents of the treasury department as abandoned or captured property, in virtue or under color of said act, from

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suit at common law, or any other mode of redress whatever, before any court or tribunal other than said court of claims; and in all cases in which suits of trespass, replevin, detinue, or any other form of action may have been brought and are now pending, or shall hereafter be brought, against any person, for or on account of private property taken by such person as an officer or agent of the United States, in virtue or under color of the act aforesaid," "the defendant may and shall plead or allege, in bar thereof, that such act was done, or omitted to be done, by him as an officer or agent of the United States, in the administration of one of the acts of congress aforesaid, or in virtue or under color thereof, and such plea or allegation, if the fact be sustained by the proof, shall be, and shall be deemed and adjudged in law to be, a complete and conclusive bar to any such suit or action." This statute was in force when this suit was brought, and when the issues in it were joined, and the provision as to the jurisdiction of and exclusive remedy in the court of claims is re-enacted, in substance, in section 1059, Rev. St., which gives jurisdiction to the court of claims to hear and determine all claims for the proceeds of captured or abandoned property, as provided by the act of March 12, 1863, or by the act of July 2, 1864, c. 225, (13 St. 375,) and then adds: "Provided, that the remedy given in cases of seizure under the said acts by preferring claim in the court of claims shall be exclusive, precluding the owner of any property taken by agents of the treasury department as abandoned or captured property, in virtue or under color of said acts, from suit at common law, or any other mode of redress whatever, before any court other than said court of claims."

It

The occasion for the enactment of the provisions of section 3 of the act of July 27, 1868, appears to have been this: One Elgee brought a suit in a state court in Missouri against one Lovell to recover the possession of some bales of cotton. Lovell removed the case into the circuit court of the United States for the district of Missouri on the ground that he was in possession of the cotton as agent for the government of the United States, which claimed it as abandoned property under the act of March 12, 1863. Elgee having died, the suit was continued in the name of his administrator. was decided by the circuit court, held by Mr. Justice MILLER and District Judges TREAT and KREKEL, in October, 1865, and is reported in 1 Woolw. 103, as Elgee's Adm'r v. Lovell. The opinions of the court, for there were two, were given by Mr. Justice MILLER. To the ordinary declaration in detinue the defendant pleaded that the cotton had, before the suit was brought, and in March, 1864, been taken, received, and collected, in the state of Mississippi, as abandoned property, into the possession of one Hart, a special agent ap pointed by the secretary of the treasury to receive and collect abandoned or captured property, under the act of March 12, 1863, Mississippi having been designated as in insurrection by the proclamation of July 1, 1863; that the cotton was in possession of the defendant at St. Louis, as agent of the United States, in its transit to a place of sale, and he was holding it for and on behalf of the United States, and not otherwise; and that the cotton was claimed by the United States as abandoned property under said act. The plaintiff demurred to this plea, and the demurrer was overruled. The circuit court said in regard to the plea: "It shows that the cotton mentioned in the declaration was seized as abandoned property, in one of the districts declared by the proclamation to be in a state of insurrection, by a special agent of the treasury department for that district; and that when this suit was brought it was held by the defendant as an agent of the government, with the view of disposing of it under the act. The objection taken to it is, that it does not aver that the property, when taken possession of by the treasury agent, was captured or abandoned property, nor in any other manner show that it was rightfully seized. The question is, whether congress intended to make the remedy given by this act exclusive of all others, or to permit