
    BURKE AND TAIT’S CASE.
    Peter Burke v. The United States. James Tait v. The United States.
    
      On Burke’s Motion.
    
    I. Under tlie decision in Gillis’s Case (95 U. S. K., 407 ) this oonr twill not enforce equitable rights of an assignee of a claim against the United States under an assignment which is made in violation of the provisions of the statute.
    II. An assignment in bankruptcy passes to the assignee a claim of the bankrupt for the proceeds of captured cotton. The assignee can appear and support his claim for the same in his own name.
    III. An assignee in bankruptcy may sell and assign siteh claim for the proceeds of captured cotton and the purchaser may maintain an action therefor in his own name, notwithstanding the decision in Gillis’s Case.
    IV. The former opinions of this court resjiecting an equity jurisdiction in the Cotton Cases are reviewed, and the court declines to-express an opinion that it has such jurisdiction.
    
      The Reporters’ statement of tbe case:
    In this case tbe bankrupt, before bankruptcy, assigned tbe claim to one Browning for good consideration. Browing’s attorney obtained all tbe evidence necessary to prove tbe case, and conducted tbe suit up to tbe time of final bearing, and was present at and assisted in tbe final argument. On tbe motion of tbe purchaser from tbe assignee in bankruptcy to be admitted to prosecute tbe suit, it was ordered tbat be be admitted upon satisfying tbe court tbat be bad paid or assured to Browning’s attorney a reasonable compensation for bis services.
    It ivas proved tbat BroAvning and Tait (tbe bankrupt) bad agreed tbat BroAvning’s attorney, in tbe event of conducting tbe suit to final judgment, should receive 30 per cent, of tbe amount recovered. Tbe court held 20 per cent, to be a reasonable compensation for tbe actual services rendered.
    Tbe following are tbe ‘‘facts ” found by tbe court:
    
      I. On. or about tbe 15tb May, 1865, James Tait, tbe claimant, was tbe owner of 46 bales of cotton at Mobile.
    II. On or about that day said cotton was seized by tbe military forces of tbe United States, and came into tbe possession of Capt. Samuel Lappin, quartermaster of tbe United States at Mobile, and was shipped by bim from Mobile to New York on tbe sbipE. S. Tbayer, consigned to Brigadier-General Yan Vliet, chief quartermaster at New York. On arrival at New York it was sold, and tbe proceeds, amounting’ to $8,050, passed into tbe Treasury of tbe United States.
    III. On or about tbe 21st day of June, 1865, tbe said Tait, being indebted to Hanford & Browning, of New York, transferred tbe said cotton, or bis right to tbe proceeds thereof, to one John H. Browning, in trust, to secure tbe payment of said indebtedness. Said transfer was by a written instrument, of which tbe following is a copy:
    “ Know all men by these presents that I, James Tait, of Mobile, State of Alabama, party of tbe first part, for and in consideration of tbe sum of one dollar, and other good and valuable considerations, lawful money of tbe United States, to me in band paid at or before tbe ensealing and delivery of these presents, by John H. Browning, party of tbe second part, of tbe city, county, and .State of New York, in trust, to pay to tbe late firm of Hanford & Browning tbe sum of fifteen thousand dollars, for merchandise bought of them before the late war, have bargained and sold, and by these presents grant and convey, unto tbe said party of tbe second part, bis executors, administrators, and assigns, forty-six bales of cotton, as follows, to wit: Nos. 1 a 15, marked J. A., mid’g,'fifteen (15) bales, weighing 6,958 pounds. Eighteen bales (18), Nos. 1 a 18, strict low middling, weighing 8,562 pounds. Also thirteen bales (13,) Nos. 1 a 13, good ordinary, weighing 6,142 pounds, shipped Capt. Samuel Lappin, acting Q. master, for tbe U. S. Government, at Mobile, on board tbe ship Eli S. Taylor, Thompson, master, and bound from Mobile to New York, and consigned to Brig. General Stewart Yan Yliet, chief Q. M. in New York, as per. invoice furnished James Tait by said Samuel Lappin, A. Q. M., or tbe proceeds of said cotton in case of sale of tbe same:
    
      u To have and to bold tbe same unto tbe said party of tbe second part, bis executors,'administrators, and assigns, in trust, as aforesaid. And I do, for myself, heirs, executors, and administrators, covenant and agree, to and with tbe said party of tbe second part, to warrant and defend tbe sale of tbe said forty-six bales of cotton hereby sold unto tbe said party of tbe second part, bis executors, administrators and assigns, against all and every person and persons whomsoever.
    
      “ In witness whereof I have hereunto set my hand and seal the 21st day of July, in the year one thousand eight hundred and sixty-five.
    “JAMES TAIT. [seat,.]
    “ Sealed and delivered in the presence of—
    “E. F. BROWNING-.”
    [Inter, rev. 5 cents stamp.]
    “State oe New York,
    “ City and County of Neio Yorlc, ss:
    
    “ On the 7th day of August, one thousand eight hundred and sixty-five, before me came James Tait, knqwn to me to be the person described in and who executed the within bill of sale, and acknowledged before me that he executed the same for the purposes therein mentioned.
    [SEAL.] ' “T. B. WAKEMAN,
    
      “Notary Public, New Yorlc City and Comity.”
    TV. On or about the 17th of February, 1871, said Tait was adjudged a bankrupt in the District Court for the southern district of Alabama. The claim for said cotton or its proceeds was set forth in his official schedule in the following language:
    “ Claim against the United States for forty-six (46) bales of cotton. This claim has been allowed in the Court of Claims at Washington, but appealed to Supreme Court, and remanded to Court of Claims, where it is now pending. The value of this claim is about eight thousand dollars ($8,000).”
    Y. On the 10th April, 1871, one Huriesco Austin was appointed assignee, and qualified as such, and an assignment of ■the property and estate of the said James Tait was duly made to him according to law on that day by Lawrence Worrall, a register in bankruptcy, and on the 9th June, 1875, said Tait received his discharge in bankruptcy.
    YI. On the 18th March, 1872, the said assignee offered for sale to the highest bidder, for cash, the claim against the United States for the proceeds of said 46 bales of cotton, then pending before the Court of Claims, and sold the same to one Peter Burke, he being the highest bidder therefor, for the sum of $310, and executed and delivered a transfer therefor in the words and figures following:
    “Whereas, by virtue of the power and authority vested in me as assignee of James Tait, bankrupt, I did expose for sale in front of the custom-house, at Mobile, Alabama, at 12 o’clock, Monday, March 18th, 1872, after ten days’ advertisement in the newspaper called the Mobile Tribune, to the highest bidder, for casli, a claim of tbe said James Tait, bankrupt, to tlie proceeds of forty-six bales of cotton, which claim is now pending in tlie Court of Claims at Washington, at which sale Peter Bnrke made the highest bid, to wit, the sum of three hundred and ten ($310.00) dollars; and the said Peter Burke having paid to me the said sum of three hundred and ten dollars, the receipt whereof is hereby acknowledged:
    “Now, this indenture witnesseth, that for and in consideration of the said sum of three hundred and ten dollars, I do hereby give, grant, sell, and convey unto the said Peter Burke all the right, title, and interest in and to the said claim for proceeds of forty-six bales of cotton as aforesaid, jio.ssessed by said James Tait, and which vested in me as said assignee.
    “ In witness whereof I hereunto set my hand and seal this the 18th day of March, A. D. 1872. (Duplicate.)
    “H. AXIS TILL,
    
      “Assignee of Jrnnes Tait, Bankrupt.
    
    “Before me, Henry S. Skaats, a United States commissioner in and for the southern district of Alabama, personally came H. Austill, who is known to me, and acknowledged that he executed the foregoing bill of sale on the day of the date thereof, as the assignee of James Tait, bankrupt.
    ‘ ‘ In. testimony whereof I have hereunto setmyhand and affixed the seal of the United States circuit court, this 23d day of March. A.D. 1876.
    [SEAL.]
    “HENRY S. SKAATS,
    “ United States Commissioner Southern District of Alabama.”
    
    VII. It does not appear that said sale to said Burke was made under direction of the court; but the clerk of the District Court of the United States for the southern district of Alabama certifies, under the seal of the court, “That on the 18th March, 1872, said assignee sold to the highest bidder, for cash, a claim against the United States for the proceeds of forty-six bales of cotton, now pending before the Court of Claims at Washington, to one Peter Burke for the sum of three hundred and ten dollars.”
    
      Mr. Abram Walcemcm for Browning.
    
      Mr. P. Phillips for Burke.
    
      Mr. Assistant Attorney-General Simons for the defendants.
   Davis, J.,

delivered the opinion of the court:

Forty-six bales of cotton belonging to James Tait were seized by the military authorities in Mobile, in May, 1865, and the pro ceeds passed into the Treasury. Tait then assigned the cotton or its proceeds to one Browning, as security for an indebtedness. Browning commenced suit in his own name to recover the proceeds. In July, 1865, the pleadings were amended by making Tait plaintiff for Browning’s use, and in this form judgment was rendered for the claimant. A new trial was then granted on the ground of newly discovered evidence. (5 C. Cls. R., 638.) Tait then became bankrupt. His assignee in bankruptcy sold this claim by auction to Peter Burke, whose attorney now moves for leave to appear and prosecute it to final judgment in Burke’s name. The general hearing of the case on facts and law took place simultaneously with the hearing on the motion to substitute Burke as claimant.

In Gillis’s Case (95 U. S. R., 407) the court held that the Act of February 26, 1853 (10 Stat. L., 170), “strikes down and denies any effect to powers of attorney, orders, transfers, and assignments which before were good in equity, and which a debtor was bound to regard when brought to his notice.” The justices who dissented from some of the conclusions of the majority agreed with them that that statute “prohibits the assignment of claims against the Dnited States.” Therefore Browning’s equities, if he has any, cannot be enforced through this tribunal.

Tait having parted with his'interest to the assignee in bankruptcy, and the assignee having transferred his interest to Burke, we are next to consider whether Burke can be substituted as claimant in this suit.

Tait’s interest in the proceeds undoubtedly passed to the assignee by the assignment, and this suit was then pending. The assignee could either have applied within the statutory time to prosecute the suit in his own name (14 Stat. L., 524), or he could sell and assign the claim (lb., 530). He elected the latter course. It does not appear that the sale was made by order of court; but this does not affect the validity of the transfer.

It is argued that the assignment by the assignee to Burke is void for the reason which voided the attempted transfer to Browning. The conclusive reply to this is that the statute explicitly authorizes an assignee in bankruptcy to sell a claim like this, and consequently must authorize a purchaser to buy it and to acquire title to it.

It is further argued that although Tait’s rights may have passed to Burke through the assignee in bankruptcy, they must be enforced in tbe name of that assignee, since at tbe common law an assignee of a chose in action can enforce bis rights at law only in tbe name of tbe assignor.

Tbe answer to tbis is twofold: 1st. That tbis case does not come within tbe common-law rule. 2d. That under the provisions of tbe Captured and abandoned property Act, Burke is tbe only person wbo can maintain tbis action

1st. At tbe common law tbe assignee of a chose in action can prosecute bis rights in bis own name when tbe debtor assents to tbe assignment and promises to pay tbe debt to tbe assignee. We have already noticed tbe clear assent of tbe defendants to tbe sale to Burke. His title rests entirely upon tbe provisions of a statute enacted by their agents. Equally clearly they promise to pay tbe proceeds to him only, if to anybody. Tbe Captured and abandoned property Act is construed as promising to pay such proceeds to tbe person entitled to receive them (Haycraft’s (Jase, 22 Wall., 81), and among tbe necessary requisites of title is tbe right resulting from ownership at tbe time of final judgment. (Cutner’s Case, 17 Wall., 517; Villalonga’s Case, 23 Wall., 35.) Consequently tbe statutory promise is made to bin, if to any one, and tbe case is taken, out of tbe operation of tbe common-law rule.

2d. Tbe course of argument on tbe first point has anticipated a part of what may be said on tbe second. In order to entitle a claimant to recover under tbe provisions of tbe Captured and abandoned property Act, be must have been tbe owner at tbe time of tbe capture (Carroll’s Case, 13 Wall., 151); must have tbe right to tbe proceeds at tbe time of tbe filing of tbe petition (15., and a like right at tbe time of'final judgment (Gutner’s and Vilalonga’s Gases, supra.) As to tbe first and second, be may enjoy transmitted rights in a representative capacity ; as assignee in bankruptcy, for instance. Tbe purchaser from an assignee in bankruptcy receives, with tbe transfer of tbe debt, all tbe representative rights of tbe assignee, and thus tbe first and second requisites are found in him only. Tbe same is equally true of tbe third. Browning, for instance, is not entitled to tbe proceeds in tbis case ; Tait’s interest in them went to tbe as-signee in bankruptcy ; tbe assignee’s mterest descended to Burke for a valuable 'consideration; and whatever right of ownership exists is now vested in tbe latter. ' If it be true that these statutory requisites must exist in tbe person of a claimant, tbe converse of tlie- proposition is equally true, that the person who possesses them is entitled to appear as claimant.

It is argued that this court sits as a court of equity in proceedings under the Captured and abandoned property Act, and that we must resort to equity to determine the status of this claimant.

The judges who concur in this opinion prefer to rest their action upon the principles already stated. They are quite sufficient to justify our disposition of this' case, without invoking the interposition of equity.

The general act reorganizing this court and the Captured and abandoned property Act were passed by Congress on the same day, and are parts of one piece of legislation.

An early attempt of this court to render judgment under the general act for specific performance (Alire’s Case, 1 C. Cls. R., 233) was met by the Supreme Court by the remark that “ it is quite clear that the limited power to render a judgment confines the subject-matter to cases in which the petitioner sets up a moneyed demand as due from the Government.” (Alire’s Case, 6 Wall., 573.)

Shortly afterward, the same court held that this court “was authorized to enforce legal rights and obligations, but it could not proceed further and judge of the equities between a citizen and his government. * * * The Government has not thought' fit to allow itself to be sued in the Court of Claims on equitable considerations.” (Bonner's Case, 9 Wall., 156.)

About the same time, a question being raised concerning proceedings in cotton cases, the same court said “no special proceedings are prescribed to the Court of Claims” by the Captured and abandoned property Act, but “they are to proceed in the usual way to hear and adjudicate upon the question of ownership and right to the proceeds according to the proofs and law of the case.” (Zellner’s Case, 9 Wall., 244.)

Nearly simultaneously with these proceedings, however, the Supreme Court, in casual expressions in two cases, referred to the United States as a trustee holding the proceeds of captured and abandoned property for the owner’s benefit (Anderson’s Case, 9 Wall., 56; Padelford’s Case, 9 Wall., 531); which expressions were repeated in two subsequent cases: Klein’s Case, (13 Wall., 128); Intermingled Cotton Cases (92 U. S. R., 651). From these casual expressions it is argued that we are possessed of the equity jurisdiction necessary to administer upon trusts, and that tbe Supreme Court was mistaken when it said that utlie Government has not thought fit to allow itself to be sued in the Court of Claims on equitable considerations.”

That court, in calling the United States a trustee, may have referred to the large class of trusts cognizable at law. In its broad legal sense the word trust embraces many transactions and relations of business and property which are administered in courts of common law in States where two systems of jurisprudence and of remedies exist side .by side. The familiar cases of bailments and of money had and received to the use of another are instances of such trusts.

The court may well have compared the relations of the Government toward the fund in the Treasury to this class of trusts. It is less probable that it intended to convert those relations into an equitable trust, since the essential elements of personal confidence and trust reposed in the depositary by the creator of the trust are wholly wanting.. The language of Chief Justice Waite in Haycraft’s Case, where he “ expresses all there is of the trust” (22 Wall., 94), warrants this conclusion.

In administering upon the cotton cases this court has neither assumed to act as a court of equity nor as a court of common law, but simply as the Court of Claims. Dicta of individual judges may afford ground for arguing in favor of equity jurisdiction in case of necessity, but no necessity for its exercise has yet arisen. We therefore hold ourselves free to decide that question in accordance with our views of law when it may arise. Our proceedings thus far under the Captured and abandoned property Act are to be defended upon general principles common to all systems of jurisprudence recognized by our courts and derivable from the statutes conferring jurisdiction upon us, without the necessity of a special resort to equity in order to justify them.

This court is created by Federal law, with its seat in the Federal capital, with forms of proceeding prescribed by Federal law, for the recovery of money from the Federal Treasury. The forms prescribed for it are neither taken from the common law nor from equity. They leave a large measure of freedom from the restraints of special rules of pleading (Burns’s Case, 12 Wall., 246); while at the same .time we are required to observe in all proceedings against the Government the general rules of evidence and the general canons for the construction of contracts and tbe judgment of transactions wbicb prevail at tbe common law. (Moore’s Case, 91 U. S. R., 270.)

In some cotton cases it appeared that cotton of several claimants bad become so intermingled tbat it was impossible to know wben and where or for bow mucb eacb claimant’s cotton was sold, while it was clear tbat tbe Treasury bad received tbe proceeds of tbe whole mass. In such case, instead of hearing eacb suit separately, and then determining from tbe result of tbe whole evidence tbe aggregate number of bales and tbe number contributed by eacb party, tbe court, ‘for its own convenience, beard tbe cases together, and then rendered separate judgments in favor of individual claimants. Tbe Supreme Court, on appeal, justified tbe course of this court, calbng attention to tbe fact tbat tbe proceedings were bad under tbe limited jurisdiction conferred by tbe statute. In all this there was nothing analogous to a suit in equity, and nothing requiring equity jurisdiction in tbe court for its performance.

In another class of cases it appeared tbat rival claimants were seeking tbe same fund in tbe Treasury. There tbe court joined tbe suits at tbe bearing, and permitted claimants to contest eacb other’s title. We regard this as an inherent right in tbe court. If, however, a justifying analogy must-be sought in tbe proceedings of other tribunals, instead of looking for it in equity, we shall rather find it in tbe common law, which permitted a bailee, sued in detinue by different persons,, each claiming ownership of tbe deposit, to plead tbe facts, without changing bis position as defendant, and to pray tbat tbe several owners might inter-plead with eacb other. (Viner’s Abridgment, Title Untrepledeur; Reeve's Hist. Com. Law, ch. 23.)

Certainly tbe Government has not .appeared before this court in any recorded proceeding in any way resembling a bill of in-terpleader in equity. It has not asked as plaintiff to have several contesting defendants interplead ; -it has not sought to bring into court a contesting claimant not on tbe record. The records show tbat in these consobdated suits there has been no privity of estate between tbe several claimants and tbe Government; and privity of estate, or title, or contract is essential to tbe maintenance of a bill of interpleader.

Still less have our proceedings in these suits been analogous . to proceedings under a bill in tbe nature of a bill of interpleader. ■On a state of facts bke tbe present, tbe United States, under tbe rules of equity pleading, would appear as plaintiff, and the bill would allege that the plaintiff is interested in the property which is the subject of the suit, and that it seeks the relief demanded in order to have its interest protected by the court. It is needless to say that no such suit has been brought in this court by the Government.

If it be necessary or desirable to argue a speculative theory of jurisdiction out of the acts of the court in administering the statute, it will be found that we have approached nearer to common law than to equity, and that many of our proceedings have been contrary to the usages of an equity court. Since Haycraft's Case (22 Wall., 81), this court has invariably regarded the right of the claimant in a cotton case to recover as based upon an express promise; and in Sevier's Case (7 C. Cls. R., 387), it was held by the whole court that it is no part of our duty to inquire whether the fund in the Treasury is or is not exhausted, so long as the proper claimant to whom the promise was made is unpaid. That this decision was right is too clear for argument. The language of the third section of the act is explicit, that every claimant who establishes his right to judgment according to the provisions of that act is entitled to it, irrespective of the amount in the Treasury. It is for the political department of the Government to determine whether he shall have a further remedy, in case nothing is in the Treasury to respond to a judgment.

As this court has not by any judicial act assumed authority to judge of the equities between a citizen and the Government,” or to entertain a suit against the Government “ on equitable considerations,” and as such assumption is not necessary to the decision which we make in the present case, we think it advisable, for Inany reasons, not to express an opinion that we have equity jurisdiction in advance of attempting to exercise it.

Besting our decision entirely on the reasons first stated in this opinion, the motion to amend the pleadings and to substitute Burke as claimant is allowed; the form of the amendment to be settled at chambers.

After the proper amendments are made and entered, the court will, on motion of the claimant’s attorney, in open court, order judgment to be entered in Burke’s favor for the recovery of eight thousand and fifty dollars, with provisions for the protection of Tait’s attorney of record, if any shall then appear to be necessary and proper.

Nott, J.,

concurring:

Cboses in action are commonly said to be unassignable at law, and of tbem that tbe assignee cannot maintain an action in assumpsit except in tbe name of tbe assignor. But this saying expresses neither tbe rule nor tbe principle, inasmuch as it omits two material limitations. Correctly stated, tbe rule of tbe common law would have been this: Upon considerations of pubhc policy, to prevent maintenance and the- multiplying of contentions and suits, no assignment or conveyance of a chose in action shall be effective to transfer tbe debt or demand, nor to give tbe assignee a right of action, unless tbe debtor assent to tbe transfer and promise to pay him, in which case tbe assignment will be effective and assumpsit will lie; but as regards tbe King, agaiust whom considerations of public policy should not prevail, be might always either grant or take a chose in action by assignment. Welch, v. Mandeville (5 Wheat., 277); Tiernan v. Jackson (5 Peters, 579); United States v. Buford, (3 id., 12).

A judicial theory of pubhc policy Gannot prevail against an express statutory declaration to tbe contrary. Hence it wotdd seem to follow, from tbe reason of tbe common-law rule touching tbe transfer of cboses in action, that where an officer of a court is authourized by statute, as in tbe case of assignees in bankruptcy, to sell and dispose of a chose in action, there cau be no pubhc policy which should forbid him to transfer tbe demand and with it tbe right of action to tbe assignee. Tbe common law, on considerations of pubhc policy, held that a person should not make such sales and that they wore void; but in this particular class of cases tbe statute law authorizes tbem to be made, and one would think thereby declares that they do not contravene pubhc policy.

Nevertheless, when tbe last bankrupt act was passed (Act 2d March, 1867, 14 Stat. L., p. 517, §§ 14] 15), courts bad so uniformly applied tbe common-law rule to assignments made by assignees in bankruptcy, alike under the former United States bankrupt act (Act 19th August, 1841, 5 Stat. L., p. 440, §.3) and under various State bankrupt acts and under tbe English bankrupt acts, that it must now be held that when tbe last legislation of Congress was framed it was with knowledge of and with reference to such decisions; and that when Congress omitted to malee provision for suits by purchasers of cboses in action under bankrupt sales, suck as is made by the Massachusetts statute (Gen. Stat. Mass., ch. 118, § 100), from which the last United States act is copied, it was intended that no such right of action should accrue to the purchaser, and that he, as under the previous act, should be limited to a suit in the name of the assignor. And so it has been held of the present bankrupt act. (Leach v. Greene, 116 Mass., 534.)

I fully agree with the reasoning of the opinion of my brother, Mr. Justice Davis, on this subject; and if the question were an open one now, I should unhesitatingly adopt its conclusion. But unfortunately the question is not an open one, and it is safe to say that when the last bankrupt act was passed a decision did not exist in any State or country where the common law prevails which held that a purchaser of a chose in action from an assignee in bankruptcy could maintain an action in his own name unless the right to do so Avas expressly conferred by statute.

But a claim against the Government for the proceeds of captured property in the Treasury is not a chose in action. A chose in action, to which only the common-law rule applies, is a right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected Avith a contract which cannot be enforced without an action at law. (Com. Dig., Liens ; Chit. Eq. Dig.) A suit under the Abandoned or captured property Act does not rest upon or arise out of contract. No liability of the Government under the statute can be maintained on an implied contract arising from the taking of the property or the withholding of the proceeds. (Haycraft’s Case, S. C., 10 C. Cls. R., 95.) The proceeds in the Treasury, being held not for public use, but for the benefit of the loyal OAvner, do not come within the mandate of the Constitution, and for them no personal liability arises on the part of the Government. (Wylie's Case, 6 id., 295.) The thing sought to be recovered is not damages, but a specific fund, in which the Government has no title save that of trustee for the claimant. (Klein’s Case, S. C., 7 id., 240.) This trust fund, which is here the subject of assignment, is as specific a thing as the cotton from which it was derived, or as land which the Government may have rented, or as a horse Avhich it may have impressed into its service. A claim for it has none of the characteristics of a chose in action. It does not arise out of contract; it does not constitute a debt of the defendant; the Government does not pay interest up'on it; no action upon implied contract can be maintained based upon the withholding of it; if it be lost, the owner’s right of action will die with it. In a word, it is simply a specific fund in equity, which the Government, as trustee, holds for whom it may concern; that is to say, for the rightful owner.

Specific thing's, real or personal, not in possession, could always be transferred at common law, except where the transfer was forbidden on grounds of champerty. ' "Thus, a mortgagee not in possession might transfer the legal title to a mortgage. (Com. Dig., Assignments, A.) Thus, a man might transfer the legal title to an undivided portion of a crop of grain growing on the land of another, and the purchaser might maintain an action for it in his own name. (Carter v. Jarvis, 9 Johns., 143; Austin v. Sawyer, 9 Cow., 39.)

The rule of the courts of the common law which forbade transfers of choses in action and allowed transfers of all other causes of action arising out of contract was purely arbitrary. It has never been extended to other subjects of assignment, and indeed had hardly been established ere it began to be evaded. In the course of time the courts- of the common law so far changed their minds as to hold that that could be done indirectly which could not be done directly; that the assignee of a chose in action, if he could not bring a suit in his own-name upon it, could nevertheless bring a suit to his own use in the name of his assignor. Next it was held that the assignor could not control or interfere with this suit in his name; that courts of law would take notice of these assignments, though void, as against public policy, and would protect the assignee. (Welch v. Mandeville, 1 Wheat., 233; 5 id., 277.) Then courts of equity took the matter up, holding that the assignee of a chose in action could not come into equity for relief, because he had a complete and adequate remedy at law, though in the name of his assignor. (Per Chancellor Walworth, and cases cited in Ontario Bank v. Mumford, 2 Barb., Ch. R., 596.) Thus by a steady adherence to the letter of the rule and a constant evasion of its intent, the rule itself, which was at first purely arbitrary, has become utterly artificial, and now amounts to nothing more than saying that the assignee of a chose in action may bring an action upon it, provided that he brings it in another man’s name instead of his own.

But the decisions of the law courts did not express the whole of the English law in regard to the assignment of choses in action. From a very early day the court of chancery held that such transfers were not void, and that they passed a title which could be enforced in equity. American courts of equity have always gone to .chancery for their principles of jurisprudence, precisely as our law courts have gone to the courts of the common law for their rules of decision. If this were a court of the common law, and Parliament had submitted these captured-property cases to its jurisdiction, the strongest presumption would arise that these claims were regarded as choses in action, and that the court should be guided and limited by the rules of a court of law. But here three things should be clearly apprehended: 1st. Congress have not declared this court to be either a court of law or a court of equity, but have left its character and powers, as such, to be inferred from the subjects of jurisdiction confided to it and the remedies placed at its disposal. And so the Supreme Court in effect held in Alire’s Case (7 C. Cls. R., 28). 2d. The primary or general jurisdiction of the court is founded upon “ contract, express or implied,” and such claims are of the nature of choses in action, and such actions are of the nature of personal actions at law. 3d. The abandoned or captured property cases are not founded upon contract; no such suit can be maintained on an implied contract, arising from the taking of the property or the withholding of the proceeds; the Government is only liable for the trust fund in its possession, and whenever the fund vanishes the liability ends. (Haycraft’s Case, S. C., 10 C. Cls. R., 95; Wylie’s Case, 6 id., 295; Bynum’s Case, 8 id., 440; Thomas’s Motion, 12 id., 273.) Here, then, is a court with no defined character as to law or equity, having jurisdiction of two distinct classes of cases; the one in their nature actions at law, the other in their nature suits in equity. It is conceded that, as to the former, the court should not seek rules and analogies in courts of equity. Is it to be maintained that, as to the latter, the 'court must seek them only in courts of law, which never had jurisdiction of trusts, and, therefore, never settled rules or principles applicable to this subject of jurisdiction ?

So far as the ordinary jurisdiction of the court is concerned, it is not a court of equity and can decree no equitable relief. (Alire’s Case, S. C., 7 C. Cls. R., 28.) But these captured property funds have been declared repeatedly by the Supreme Court to form a trust. (Anderson’s Case, 7 C. Cls. R., 121; Klein’s, ib., 128; Raymond’s, 11 id., 477.) A liability arising out. of tbe relations of an accepted trust is exclusively- a matter of equity jurisdiction, wbicb cannot be enforced at law. (Bonner’s Case, S. C., 7 id., 133.) A trustee is only suable in equity in regard to any matter touching tbe trust. (Story Eq. Jur., § 975 a; Curtis v. Smith, 6 Blatcb. C. C. R., 537.) And as courts of equity will compel tbe performance of a trust (so says Story) they will assist tbe trustees, and protect tbeni in due performance of tbe trust whenever they seek tbe aid and direction of tbe court as to tbe establishment, tbe management, or tbe execution of it.” (§ 961.)

Nevertheless, if this court can proceed in these cases upon tbe principle of equity jurisdiction, it must be because tbe rules of law are here incommensurate for tbe proper administration of tbe trust, and tbe court must be regarded as a court of equity strictly pro hae vice. What, then, has been tbe practical construction given to tbe powers of this court over this fund in the Treasury, and bow have tbe courts treated such claims; whether as a chose in action or a specific fund in equity ?

Tbe nature of a subject or jurisdiction must sooner or later in a greater or less degree guide and control tbe action of a court. Accordingly, at a very early day (Turner’s Case, 2 C. Cls. R., 390), this court found itself compelled to assume tbe functions of a court of equity in these abandoned or captured property cases — in allowing motions analogous to bills in tbe nature of a bill of interpleader ” (Story Eq. Jur., § 824; McHenry v. Hazard, 45 N. Y. 580; 4 Paige 483; Hopkins’s Cb. 274); in compelling adverse claimants to interplead; in consolidating distinct suits; in bringing together in one suit all conflicting claims upon a particular fund, and,' generally, in treating tbe proceeds in tbe Treasury as a fund in equity. In at least one of those cases, where, there being many adverse parties, distinct suits bad been consolidated and only one judgment finally rendered determining tbe rights of several adverse claimants both as between each other and tbe defendants, tbe Supreme Court acted upon it without questioning tbe equitable power assumed by this comt (The Elgee Cotton Cases, 10 C. Cls. R., 181), and in another instance expressly approved of and upheld tbe course wbicb this coiu't bad pursued. (Sundry Cotton Cases, 11 id., 477.) In several instances we have held that where tbe Government, under tbe direction of tlie court, has paid away a fund or a portion of a fund to one person, it cannot be compelled to pay over again to another; i. e., that its liabilities are strictly those of a trustee in equity, and not those of a contractor at law. (See the deductions made for prior judgments in Boyd’s Case, 9 C. Cls. R., 419; Sundry Cotton Cases, 10 id., 502; 11 id., 484, 489; Ross’s Case, 12 id., 566.) In Sevier’s Case (7 id., 387), the court held that a prior judgment which awarded too large a proportion of a fund to another party should not preclude the claimant from recovering the full amount of his proceeds, because the Secretary of the Treasury had made an erroneous report of the condition of the fund, and the law officers of the Government had not made the later claimant a party to the former suit; a questionable conclusion, in view of the general principle that the Government is not liable for the negligences of its officers, but which must be sustained, if it can be sustained at all, on the ground that the Government in this class of cases must be held to the ordinary responsibilities of a trustee. In Turner’s Case (2 id., 390), which is the first where the character of these suits is spoken of, the court said that the proceedings are “in the nature of an action in rem; and Mrs. Thomas’s. Motion (12 id., 273), which is the last, that “ an action under this statute is a suit in equity partaking largely of the nature of a proceeding in rem.” In every cotton case that has ever been before the court the returns of the Treasury have been treated as the reports of a trustee iu regard to a fund in equity, and the parties have been allowed to resort to other returns than those made in the case having a hearing, and decrees have repeatedly been rendered on returns in other cases which neither party produced or read in evidence. In Price’s Case (7 id.), the court segregated the money in the Treasury into distinct fuuds and charged the funds with losses and recoveries in other suits, and withheld moneys for suits not yet tried, and exercised a knowledge outside of the record of the case, such as is said to exist only in the conscience of the chancellor, and announced that its decision should stand as an accounting for all subsequent cases (Austell’s Case, 7 id., 599; Cartwright’s, 8 id., 465; Bealls, 9 id., 299; H. J. Price’s, ib., 328; Ross’s, 12 id., 565), and carried its action to the utmost verge of the authority of a court of equity. As early as Woodruff’s Case (5 C. Cls. R., 645) a majority announced that such a suit “ is a suit in equity, relating to a fund in equity, and brought to enforce a trust”; a theory upon which the coiut has steadfastly acted ever since, and which has never been ques-toned from that day to this. Indeed,'it is safe to say that there has never been a case where the due administration of the fund required the interposition of a court of equity that this court has not assumed equity powers in treating the Government as a trustee and the fond as a trust fund in equity. It would overturn in reason and consistency no inconsiderable proportion of our decisions, and likewise those of the Supreme Court, were it to be held now that, in the administration of this fund, this court must proceed strictly as a court of law.

In this connection it should also benoted that the statute reconstituting this court (Amended Court of Claims Act 3d March, 1863, 12 Stat. L., p. 765) and the, Abandoned or captured property Act (ib., page 820) were framed in Congress at the same time, and were enacted, though not approved, on the same day.

The former act, which provides for the proceedings of the court,'in addition to the term “judgment,” uses the term “ decree” (§ 6), and with such significance, when compared with other parts of the act where it is not used, as to import that it was used for a. purpose. It is true, as the Supreme Court held in Alire’s Case (7 C. Cls. R., 28) that these decrees must be decrees for the payment of money; but it seems plain that when Congress were submitting to our jurisdiction a class of cases not arising from contract, express or implied, and equitable in their nature, they should have referred to the final determination of such cases by its designation in equity, and have provided that they, as well as judgments at law, should be the subject of appeal. ' •

There are, indeed, cases at the common law where the term “trust” is used, as where money is paid to one man for the use of another, and he is said to receive it in trust; as where a factor sells the goods of the principal and holds the money in trust for the general owner; and it may be said that these implied trusts in law are what the Supreme Court intended, when in numerous instances it ascribed the character of- a trust to the captured property fund, and the character of a trustee to the Government as its custodian. But there are two reasons, I think, why that interpretation is insufficient to satisfy the use of these terms.

In tbe first place, sucb implied trusts at law always arise out of contract, express or implied, and an action upon contract can be maintained for tbe withholding of the money; while here the liability of the G-oyernment did not arise out of contract (Wylie’s Case, 6 C. Cls. R., 295), and no action upon an implied contract can be maintained for the withholding' of the money. (Haycraft’s Case, S. C., 10 id., 96.) In the second place, the liability of the defendant in those cases is generally personal, while here the liability of the G-oyernment is strictly that of a trustee in equity. In a word, both in the inception of this trust and in the administration of it, and in the rights and remedies attached to it, and in the adjudged liabilities under it, I perceive no element of contract, express or implied, nor any responsibility saye such as properly belongs to a trust in equity; and it is now indisputable that if this court had from the first treated such claims as choses in action, and had exercised only the ordinary powers and remedies of a court of law, the Government would have had to pay for the same captured property to a dozen different parties, and many of the funds would have been exhausted before the rightful owner could have had a hearing.

I am therefore of the opinion that a claim for the proceeds of captured property is not a chose in action, and that it is a specific thing, viz, a fund in equity, as to which the rule of courts of the common law never applied, and which have always been held to be the subject of sale and transfer. That the sale of such a claim against the Government is not void under the Act 26th February, 1853 (10 Stat. L., 17) when made by an assignee in bankruptcy, under the Act 2d March, 1867 (14 Stat. L., p. 517, §§ 14, 15), I agree with the opinion of the court, and in the conclusion that the purchaser should be admitted to prosecute in his own name.

It being brought to the court’s attention that this suit was commenced by Messrs. Wakeman and Batting, as attorneys for Browning, and with the knowledge and assent of Tait, and that the whole proceedings had been conducted by Wakeman and Batting up to and including the final hearing, in which they took part,

The Court thereupon ordered that Mr. Phillips’s motion to appear as attorney of record for Burke be granted on his making satisfactory provision for the payment of the fees of Messrs. Wakeman and Latting.

At a hearing at chambers it appeared that Browning; with Taifs assent, had agreed that Wakeman and Latting should receive 30 per cent, of whatever might be recovered as compensation in hill on this and other evidence,

The Court held that 20 per cent, of the amount of the final judgment in the suit was a reasonable compensation to the attorneys of Browning and Tait.

Mr. Phillips, on showing that the order of the court had been complied with, appeared as the attorney of record of Burke, and on his motion entry was made of judgment for plaintiff for $8,050.  