
    DEVLIN’S CASE.
    John Devlin v. The United States.
    
      On the Proofs.
    
    
      A citizen is tried and convicted, in 1865, in New York, by a military commission, for the forgery of fraudulent ^enlistment-papers. He is sentenced to ten years’ imprisonment and a fine of ^10,000. While imprisoned United States bonds are received from him by the jailor. They are sold and the proceeds, amounting to $14,956.25, paid into the Treasury, So much of the sentence as imposed imprisonment is remitted. $4,956.25 is paid to the party, and the balance, $10,000, retained as payment of the fine. He brings his action to recover the value of the bonds and subsequently dtie coupons crediting the money paid to him. After six years from the time his cause of action accrued he amends his petition, increasing his demand. The defendants plead the statute of limitations.
    
    I. Where the conviction of a citizen by a military commission is void for want of jurisdiction, it follows that the Government has no legal title to property received from him and appropriated by it to a fine imposed as a part of his sentence. The Government holds this as a depository, and an action will lie to recover it.
    
      II. Where the Government’s agents illegally sell a person’s United States bonds, and apply the proceeds to the payment of a fine illegally imposed on him, the measure of damages is not the value of the bonds and subsequently matured coupons, but the money paid over to and held by the Government.
    III. A person under sentence until a fine bo paid is under duress, and the payment of an illegal fine amid such circumstances cannot be dee'med voluntary.
    IV. The statute of limitations cannot be pleaded to an amendment which merely increases the ad clamnum.
    
    
      The Reporters’ statement of the case :
    The court found the following facts:
    1. That, in February, 1865, the petitioner, then a citizen of the State of New York, was arrested in Brooklyn, in said State, for the forgery and sale, in said State, of fraudulent papers and certificates of enlistment into the United States Navy, and for other offenses, and was thereafter tried before a military commission, convened in Washington, March 6, 1865, by the order of the War Department, and found guilty and sentenced,April 5, 1865, to be imprisoned at hard labor for the period of ten years at Clinton prison, in the State of New York, and to pay to the United States Government a fine of $10,000, and to be imprisoned till the fine be paid, the imprisonment not to exceed fifteen years.
    2. That, during the said trial, he was imprisoned in the Old Capitol prison, in Washington, and on the 2d of April, 1865, six $1,000 7.30 bonds of the United States, of the issue of Aug'ust 15, 1864, with one coupon detached, a United States certificate of indebtedness to Moran Crane & Co., for $500, and interest at 6 per cent., with one coupon detached, and $380 in United States currency were received from the petitioner by W. P. Wood, superintendent of said prison, and delivered to the United States, and the proceeds of said bonds and certificate and said currency, amounting, in all, to $6,880, were covered into the Treasury December 5, 1865.
    3. And on the 5th May, 1865, while the petitioner was confined in said prison, there was received from him eight $1,000 Treasury bonds, o per cent, loan under act of March 3, 1864, by said Wood, who delivered the same to the United States, and the proceeds of said bonds, amounting to $7,670, were covered into the Treasury May 9, 1865.
    4. On the 31st day of May, 1865, so much of said sentence as imposed imprisonment on petitioner was remitted, and he was discharged from confinement.
    By the direction of the .officers of the Army, the securities above specified were sold, and their proceeds, with the amount of currency above specified, amounting, altogether, to the sum of $14,956.25, were paid into the Treasury; and on the 9th of November, 1868, the United States, on an account with said Devlin as “to moneys taken from him at the time of his arrest,” &e., paid to him the sum of $4,956.25 and retained the residue, amounting to $10,000, on account of the fine imposed on him as aforesaid.
    On the 28th July, 1865, the petitioner addressed to Samuel Brecht the following letter:
    “BROOKLYN, July 28th, 1865.
    “ Saml. Brecht,
    “ Assistant Ad. Gen.:
    
    “ Dear Sir : Accept my thanks for yours of July 27th, inclosing copy of the order for my release. As I have never had a receipt for the payment of the fine of $10,000 imposed, may I ask the favor of one from the proper authority, which will be my voucher for the future ?
    “Yours, respectfully,
    “JJHN DEVLIN,
    “128 Hudson Av.”
    
    On the 26th December, 1876, the cash-value of United States 10-40 bonds was $1.13£; of 5-20 bouds, dated November 1,1865, $1.09£; and the market-value of gold, in currency, was $.1.07£.
    
      Mr. F. J. Lippitt for the claimant:
    The military commission was not sitting in a State in rebellion, and it had no jurisdiction to try or. sentence Devlin, who was not a resident of a rebellious State, nor a prisoner of war, nor in the military or naval service. The proceedings were thus coram nonjudice, and the sentence was a nullity. (Fxparte Mil-ligan, 4 Wall., 2; In re John Devlin, 12 Opin. Attys. Gen., 128.)
    The fine being illegally imposed, defendants could not legally retain the claimant’s moneys and securities in satisfaction of it. Indebitatus assumpsit lies for moneys paid under a void authority 5 as a sentence of a court having no jurisdiction. (Neiodigate v. Davy, Ld. Raymond, 742.)
    And for money paid under a conviction in a court having j uris-dicton, if afterwards squashed, or the judgment reversed. (1 Steph. N. P., 358.)
    Replevin for a pair of oxen levied on by the marshal of a court-martial for the satisfaction of a fine of $64 imposed upon plaintiff by a sentence of the court. The action sustained, on the ground that the court-marital had no jurisdiction, plaintiff not being in the military service. (Mills v. Martin, 19 Johns. R., 22, 26.)
    On the same ground, that the court-martial had no jurisdiction, the plaintiff not being in the military service, an action for money had and received was sustained against a deputy marshal of the court to whom plaintiff had voluntarily paid a fine of $64 under its sentence. (Frye v. Loclmood, 4 Oowen, 456.)
    Usually, for the recovery of money which plaintiff was not bound to pay, there must have been either actual coercion, or advantage taken of plaintiff’s situation to extort payment. But this is not so in respect to moneys paid under a judgment afterward v acated; in such case, no coercion is essential. (Lott v. Sicezy, 29 Barb., 92, 94.)
    It is no objection that the appropriation of claimant’s property and moneys now complained of was in legal effect a conversion; claimant having the right to waive the tort and bring suit on the implied promise. It is enough that the goods were received and used by the United States to make them liable for their value, whether the taking was a tort or not. (BrooTces’s Case, 2 0. 01s. R., 183.)
    Assumpsit for moneys had and received lies also for securities for money, or even goods, where they have been converted into cash. (2 Greenl. Ev., §§ 117, 118.)
    The law implies a promise on the part of a defendant to pay what in good conscience he is bound to pay to plaintiff. (Bailey v. Railroad Company, 22 Wall., 638.)
    “In order to support this action,” (moneys had and received,) “ there need be no privity of contract between the parties, except that which results from one man’s having another’s money which he has not a right conscientiously to retain.” {Banlc of Boston v. The United States, 10 G. Gis. E., 545.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    As there was no ignorance or mistake of facts on the part of the plaintiff, it is contended by the United States that, in order to recover, the plaintiff must show duress.
    The case of Lott v. Swezey, (29 Barb., 87,) cited in plaintiff’s brief, presents distinctions that seem to be directly applicable to the present case. There the plaintiff paid the money to satisfy a valid judgment, which was subsequently reversed; here the judgment was as void on the 28th July, 1865, as it is to-day; it never had any vitality, and has never been reversed. 1'n both cases the money was paid without any compulsion or duress, either of goods or person, and without coercion.
    The payment of the fine in April, May, and July, by Devlin, was voluntary, and cannot, by the most strained construction, be said to have been made to obtain a release; and at that point I think lies the very kernel of the question of duress or coercion.
    The-principle upon which the court rested its judgment in Frye v. Loelavood, (4 Oowen, 456,) cited in plaintiff’s brief, was the distinction adopted in Bipley v. Gelston, (9 John.; 201,) which is stated thus by Sutherland, J.: “ The money was paid by compulsion; it was extorted as a condition of granting the clearance, and not paid with the intent or purpose that the collector should pass it to the credit of the United States.”
    In the present case the intention of the plaintiff is clearly manifested in his letter of July 28, 1865.
    The purpose essential to confer on a payment the character of an involuntary or extorted payment is well stated by Martin, J., in The Mayor of Baltimore v. Lefferman, (4 Gill, 425 :) “We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid.”
    By Bayley and Holroyd, JJ., in Shaw v.- Woodeoelo, (7 B. and 0., 73,) it is stated that if the party makes the payment “ in order to obtain possession ” of his property, the paymeut is involuntary.
    The case of Feivdigate v. Davy, (Ld. Raymond, 742,) cited by plaintiff, was decided at nisi prius, and it does not appear whether the money was paid voluntarily, or to relieve the body or goods of plaintiff from restraint. It was tried in the fourth or fifth year of William and Mary, and before the principle governing recovery for money paid under “ mistake of law ” was settled in the ease of Marriott v. Hampton, (7 T. E., 269,) (37 Geo. III.) (Smith’s Leading Oases.) It is contended, therefore, that, although these deliveries of bonds and money were made while the plaintiff was in prison, they were made for the purpose of liquidating his fine, and weVe voluntary and in ignorance of the law.
   LORiNG, J.,

delivered the opinion of the court:

The statement of facts shows that, in 1860, the petitioner, when a citizen of the State of Yew York, resident therein, and not connected with the military or naval service, was convicted of and sentenced for offenses, alleged to have been committed in the State of Hew York, by a military commission convened in Washington.

• By the decision of the Supreme Court, in Ex parte Milligan, (1 Wall. R., 1,) the commission had not jurisdiction of the case they adjudged; and therefore all their proceedings in it were merely void. It follows as a consequence that the United States had no legal title to the property of the petitioner which they received, and that it was appropriated to the fine illegally imposed upon him without right, and that they hold.it now as his property.

The petitioner claims an idemnity for the loss he has sustained, and that this is to be furnished “ by placing him as nearly as practicable in the same situation as if his property had not been taken from him.” And he specifies as the items of his claim the present cash value of the 10-40 bonds and of the 5-20 bonds into which the 7.30 notes were convertible, with interest on all of said securities according to their tenor, and the principal and interest of the certificate of indebtedness, and the amount of currency taken from him, and he alleges that the balance due him, after deducting the amount he has received and interest on that, is $19,350.10.

We think this claim cannot be supported. The United States are not liable for the illegal acts or omissions of their officers; and therefore they are not liable for the taking or sale of petitioner’s property or the consequences of those acts to him. In legal contemplation, the United States have been merely passive in the matter and only received what the illegal action of their officers thrust upon them; and their first connection with the proceeds of the plaintiff’s property was when it was paid into their Treasury. And this made them only the depositary of such proceeds, and, as such, liable to account for them. The measure of damages, therefore, is not the loss the petitioner has sustained, but only the amount of his property which the defendants hold.

The statement of facts shows that the United States received into their Treasury $14,956.25. Of this, $4,956v25 have been paid to the petitioner, and the balance of $10,000 was retained on account of the fine imposed upon him by the sentence of the commission. As this sentence was illegal, it forms no objection to the recovery of the amount retained, but it furnishes no reason for the recovery of more. And it is not shown or suggested that the United States received any profits from this $10,000 while it was 'in their possession, and the petitioner’s loss has benefited the United' States in no way, for when the securities were sold they became debtors, according to their tenor, to the holders of them, instead of to the petitioner.

As the status of the United States was that of a depositary only, this suit is in the nature of an action of indebitatus assump-sit for “ money had and received,” and in such a suit, by the statute, the United States are not liable for interest.

It was contended for the defendants that the money claimed could not be recovered because paid by the petitioner voluntarily and without duress, and oh account of the fine, and that this was shown by his letter of July 28,1872.

But the petitioner did not make any payment. The proceeds of his property came to the Treasury without any act of his, and its officers retained the $10,000. There is nothing in the case to show or suggest that he parted with his property voluntarily, or in payment of the fine; that is not found in the statement of facts; and his property was taken from him before he was sentenced, or the fine imposed ; and his letter only asks for a “ receipt for a payment of the fine of $10,000 imposed” as a voucher for the futureand this, so far from expressing any assent to what had been done, only asks for evidence which was proper to support this proceeding.

Besides, it was a part of his sentence that he should not be released till his fine was paid, and with this provision the release of the ten years’ imprisonment had nothing to do. He was, therefore, by his sentence, under duress till the fine was paid, and its paymént in such way as the officers of the United States who held his property should choose was the only means by which he could or did obtain his liberty.

The statute of limitations was pleaded to an amendment to the petition, but an amendment of a petition made by leave of court is not a distinct suit; and in this case it altered the original petition only in increasing the ad damnum, and the judgment of the court is on the original petition, and within the ad damnum specified in it.

The judgment of the court is that the petitioner recover of the United States the sum of $10,000.  