
    William Alling, surviving partner, v. The United States.
    
      On the Proofs.
    
    
      The American Government, while occupying Matamoros shortly before the promulgation of the treaty of Guadalupe Hidalgo, exacts duties on tobacco imported into Mexico. The claimants purchase it. Subsequently it is seized wrongfully by Mexico. Congress refund the duties upon condition that the claimants assign to the United Stales “all their right to tlio amount so refunded when recovered from the Government of Mexico.” The claimants in 1871 recover an award against Mexico for property seized. The money is paid to the Secretary of State. He withholds under the assignment the amount previously refunded by Congress for taxes.
    
    I. When construing- an assignment given under and required by an act of Congress, the court will go behind the instrument and inquire into the intent of the act and the circumstances attending its passage.
    II. Where a special act directs the Secretary of the Treasury to refund certain duties paid into-the Treasury, and to take' at the same time from the parties “a legal assignment to the United States of all their right to the amount so refimded-when recovered from the Government of Mexico,” it must be held that the act merely fixed the amount to be assigned, and made it a lien, not upon any particular item of a claim against Mexico, but upon whatever amount the claimants might recover from that government.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. During the late war between the United States and Mexico, and while Matamoras was occupied by our troops, S. A. Belden and William Alling, under the firm-name of S. A. Belden & Co., opened a store or trading establishment in that place. The business was continued until March 6, 1850, when interrupted as hereinafter stated. During their occupancy the United States levied a duty of 30 per cent, ad valorem upon all merchandise imported into Mexico. This duty was paid by Belden & Co. upon their several importations.
    II. A treaty of peace was signed February 2, 1848, ratified and exchanged May 30, 1848, and proclaimed July 4, 18 IS. Article 19 stipulated that all merchandise and property imported into Mexico prior to the restoration of the custom-houses to the Mexican authorities should be exempt from confiscation, and from any charge upon the sale thereof.
    III. By the laws of Mexico the exclusive right to deal in leaf tobacco throughout the republic was farmed out to a single company. To protect this monopoly, agents and detectives were placed in various parts of the country.
    IY. After the treaty of peace was ratified and exchanged, * but before the custom-house at Matamoras was surrendered, to wit, in the month of June, 1848, a quantity of leaf tobacco was imported into Mexico at Matamoras by R. B. Kingsbury, and the duties paid to the United States. In September, 1848, Belden & Oo. purchased from Kingsbury 300 bales of this tobacco. In September, 1849, Belden & Co., having first obtained permits, loaded the tobacco in wagons, and, under the care of an agent, started it inland to market. At Saltillo, about 400 miles from Matamoras, where the wagons had been halted a few days for repairs, complaint was made before the district judge (Gomez), by an agent of the monopoly, that the tobacco had been illegally imported. The judge directed the tobacco to be detained, and the parties in charge of it to attend a trial. They, however, returned to Matamoras and reported the facts to theiy employers. Subsequently Belden & Co. were twice summoned, but, owing to the distance, shortness of time, and the apprehension that a fair trial would not be accorded them, failed to attend. By a decree of the court the tobacco was finally confiscated, and, in accordance with Mexican law, a fine in double its value, to wit, $26,309.12, imposed upon the owners. Subsequently an execution, with clause of capias for the collection of the fine, was placed in the hands of the proper officers in Matamoras, and on March 6,1850, served upon Mr. Belden. Mr. Belden was then, as he had been from the beginning, the resident and business manager of the concern. To avoid arrest he crossed- the river to Texas. Belden & Co. gave no further attention to their' affairs in Mexico, but repaired to Washington and presented to the President and to the Secretary of State a claim for indemnity.- The United States minister in Mexico was directed to bring the case to the attention of that government.
    V. Pending these negotiations Belden &’Co. applied to Congress for relief.
    The claim presented to Congress, the same that had already been presented to the State Department, was as follows:
    First. 300 bales of tobacco at the established price of the tobacco administration of Saltillo, 30,U00 lbs., ® 81Í cts.$24,375 00
    Second. Amount of fine imposed by Judge Gomez. 26,309 12 Third. For damages resulting from said seizure of tobacco and merchandise, &c., &c. 100, 000 00
    Fourth. For amount of merchandise and for debts > due us now existing in Mexico, the disposal of which goods and the collection of said debts being rendered impossible, &c., &c.. 164, 000 00
    $314, 684 12
    Thereupon Congress passed the Act of February 10, 1855 (10 Stat. L., 847).
    Belden & Co. then presented their claim to the Secretary of the Treasury under this act, and represented that they had been compelled to abandon at Matamoras goods and debts amounting to $164,000, the whole of which had since been lost.
    The Secretary of the Treasury, accepting their evidence in proof of this statement, allowed them upon that basis as follows:
    For amount of duties paid by Belden & Co. to the • officers of the United States charged with their collection in the city of Matamoras, Mexico, whilst that city was iii the military possession of the United States, upon merchandise imported by them into the city of Matamoras during that period, which, after the restoration of peace, they were deprived of by the judicial authorities of the Mexican Government.$25, 616 72
    Deduct duty on tobacco (excepted by the act).. $513 52
    Deduct duties on merchandise on which Belden & Co. realized cash. 6, 755 92
    - 7,269 44
    $18,347 28
    
      That sum was paid to Belden & Co., and the following assignment executed and delivered:
    
      “Assignment of Samuel A. Belden & Go. to the United States.
    
    “Whereas it is provided by an act of Congress, approved on the tenth day of February, A. D. 1855, entitled ‘An act for the relief of Sami. A. Belden and Company,’ ‘ That the Secretary of the Treasury be, and he is hereby, authorized and directed to audit and settle an account of the duties paid by Samuel A. Belden and Company, to the officers of the United States charged with their collection in the city of Matamoras, in the Bepublic of Mexico, whilst that city was in the military possession of the United States, upon merchandise, except tobacco, imported by them into Matamoras during that period, which after the restoration of peace between the two countries they were deprived of, either in the form in which imported, or in the proceeds of sale, by illegal seizure, confiscation, sequestration, or their forced abandonment of the same by the judicial. authorities of the Mexican Government, and pay the amount thus ascertained to the said Samuel A. Belden and Company, out of any money in the Treasury not otherwise appropriated, upon the execution by them of a proper and legal assignment to the United States of all their right to the amount so refunded when recovered from the Government of Mexico; ’
    “And whereas the said Secretary of the Treasury, through the proper accounting officers of the Treasury, has audited and settled the said account of Samuel A. Belden and Company, in part, to wit, for all that portion of said account in which it is satisfactorily proved that the duties were paid by said Belden and Company to the officers of the United States charged with their collection, ‘ which after the restoration of peace between the two countries they were deprived of, either in the form in which imported, or in the proceeds of sale by illegal seizure, confiscation, and sequestration, or their forced abandonment of the same by the judicial authorities of the Mexican Government,’ and has paid to the said Samuel A. Belden and Company the amount so found due to them, viz, the sum of eighteen thousand three hundred forty-seven dollars and twenty-eight cents:
    “Now, therefore, be it known that in consideration of the payment to us of said sum of eighteen thousand three hundred forty-seven dollars and twenty-eight cents, the receipt whereof is hereby acknowledged, we hereby assign, transfer, and set over to the United States all our right, title, claim, and interest in and to said amount so refunded to us so that neither we, the said Samuel A. Belden and Company, nor our heirs, assigns, or administrators shall claim or demand any part thereof.
    
      “In witness whereof we have hereto set our hands this twenty-seventh day of July, A. D. 1855.
    “ Same. A. Belden & Co..
    “ Witness:
    “Jno. D. Barclay.”
    YI. Belden & Co. again presented their claim by memorial to the United States and Mexican Commission sitting in Washington under the convention of July 4, 1868. It was identical in items and amount with the claim presented to the State Department and to Congress, as before stated and set forth in Finding Y. In their memorial they admit the payment of $18,347.28 by the United States and the assignment to them of so much of the claim. The commission made the following—
    
      " Order and award.
    
    “Wednesday, July 19th, 1871.
    “SAMUEL A. Belden & Co.) vs. £ No. 131. A. D. Mexico. )
    “The umpire, Dr. Francis Lieber, having decided that claimants in this case are entitled to an award, Mr. Commissioner Wadsworth delivered the following order and award cf the commission:
    “This case having been decided by the umpire, and his opinion returned to the commissioners, and it appearing that the claim had been promptly presented to the Mexican Government by the minister of the United States resident at Mexico (Mr. Letcher), and subsequently by Mr. Conlding—
    “It is now ordered and awarded that the Government of the Republic of Mexico pay to the United States for and on behalf of claimants, Samuel A. Belden & Co., for 299 bales of tobacco, the sum of thirteen thousand one hundred and fifty-four dollars and fifty-six cents, with interest from the 20th day of October, 1849, at 6 per cent, per annum; and the further sum, for goods seized and sold under execution, and loss attending same, of ten thousand dollars, with interest from March 6th, 1850, in the currency of the United States, making a total to July 1st, 1871, of fifty-three thousand and ninety-nine dollars and twenty - five cents (i. e., $53,099.25).
    But as the United States paid to said Belden & Co., on the 27th of July, 1855, on account of his supposed losses, the sum of eighteen thousand three hundred and forty-seven dollars and twenty-eight cents, and took from them an assignment in writing of their said claim (now before us), which advance, with interest after the rate allowed claimants, amounts now to • the total sum of thirty-five thousand nine hundred and twenty dollars eighty-one cents (i. e., $35,920.81), nothing in this award is to'be construed as preventing the United States from retaining out of the gross sum awarded herein as due that government on said assignment the aforesaid sum of thirty-five thousand nine hundred and twenty dollars and eighty-one cents, paying to Belden & Go. the balance, viz, seventeen thousand one hundred and seventy-eight dollars forty-four cents.
    “There is also awarded $100, costs of printing, «fee., in currency. "
    “W. H. Wadsworth, Am. Corner. “Fran’co G-. Palacio, M. G.
    
    “Randolph Coyle, SecH’y.
    
    “J. Carlos Mexia, Srio.”
    
    VII. This award was payable in thirteen annual installments to the United States through the State Department. Five installments, amounting to $19,010.57, were paid prior to the commencement of this suit. This sum was divided between the United States and Belden «fe Co., in the proportion of their respective shares as set out in the award, to wit, to the United States, $12,843.06, and to Belden «& Co., $6,167.57. In September, 1878, the attorney for Belden «fe Co. made application to the Hon. Wm. M. Evarts, then Secretary of State, for a hearing and readjudication as to the legality and equity of this division. Upon an examination and consideration of the case in response to the application, the Secretary decided in favor of the division as above stated.
    
      Mr. O. W. Honor for the claimant:
    The action is on an implied promise. (Rev. Stat., § 1059; Const., Art. 5, amendment.)
    It is not barred by Revised Statutes, section 1066. It grows out of and is dependent on the act of Congress. (10 Stat. L., 847; Hxparte Atocha, 17 Wall., 144; Vigo’s Case, 21 Wall., 648.)
    As to the res judicata. Admitted as to the $53,099.25 awarded. Denied as to the set-off of $35,920.81. {Hill v. Bear-don, 2 Russ., 631; Bidgway v. Hays, 5 Crunch, 23; Sheppard v. Taylor, 5 Pet., 685; Gomegys v. Vasse, 1 Pet., 193; Phelps v. McDonald, 100 U. S. R., 307; Convention with Mexico, July 4, 1868, 15 Stat. L., 679; Act June 18,1878, 20 Stat. L., 144; Private act of Congress, Feb. 16, 1855,10 Stat. L., 847.)
    
      “Nothing to prevent” in the award is not equivalent to a direction to do the thing. (Niokols v. liatón, 1 Otto, 723.)
    Discretion of the commissioners is not to be extended by the judiciary to matters not provided for by acts of Congress or treaty. (Fairchild’s Case, 12 C. Ols. B., 228.)
    The clause is a mere reservation of the rights of the United States. It is merely submissive; it is advisory, not mandatory; recommendatory, not decretal; contingent and conditional, not certain. It lacks all the elements of an award. The umpire was no party to it; the Mexican commissioner and his country were without interest. It involves no international relation. Had the American commissioner possessed the power to make it, his language would have been quite different. Even had the commissioners all united and agreed on a final award of set-off (which they did not) they would have granted something ultra yetitim and ultra vires.
    
    As creditors of Belden & Co., the United States had no locus standi before the convention. (FendalVs Oase, 12 C. Cls. B., 247.)
    The United States have no shadow of claim to any interest on the amount refunded by them under the private act of Congress for the relief of Belden & Co. The true meaning of the assignment by Belden & Co. to the United States is that they “conveyed their right to the amount of duties refunded them when recovered from Mexico by the United States.”
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    This claim is not within the jurisdiction of the court, for the reason that it grows out of a treaty stipulation, to wit, the XIXth article of the treaty of Guadalupe Hidalgo* and because it is dependent upon a treaty stipulation, to wit, the convention with Mexico of July 4, 1868. Of the amount sued for only $12,843.06 is really in litigation. Mexico may or may not pay the further installments, but the United States are not responsible to claimants for more than the moneys actually received.
    The justice of the deduction made by the Secretary of State is apparent at a glance. The Secretary of the Treasury, under the Act of 1855, made no inquiry into the soundness of Belden’s claim against Mexico. By misrepresentations or suppressions Belden induced the State Department to advocate his claim, and Congress to pass the Act of 1855. After judicial investigation, both commissioners agree that the losses, if they existed, resulted from Belden’s unreasonable neglect.
    It has been decided, by the only court competent to pass upon the question, that' the claimants have received from the United States money to which they were not entitled.
    The legality of the deduction we think is equally clear. If we take the award, the report to Congress, and section 1 of the Act of June 18, 1878 (20 Stat. L., 144), together, it is manifest that the authority to deduct was given with sole reference to the Belden Case. It is of no importance whether adjustment of the relations of the United States to one of their citizens was within the province of the commission or not; it is sufficient that the only legal claim that Belden & Co. have to this money arises from the Act of 1878 (Bustomjeev. The Queen, Law Beports, Q. B. Div., vol. 1, p. 487; vol. 2, p. 492); that right must- be exercised subject to the restrictions provided by the act itself.
    Our right to retain this money is also presented under a plea of set-off. The $18,347.28 was paid to Belden and Ailing not only under a mistake of fact, but a mistake induced by their misrepresentations. If the mistake were mutual that Mexico had wronged Belden & Co. in the matter of the debts due them, they ex cequo et bono ought not to retain the $18,347.28, and an action for money had and received will lie. “This action,” as is said by Lord Mansfield in Moses v. McFarlane, 2 Burr., 1009, “lies for money paid by mistake or ilpon a consideration which happens to fail, or for money got through imposition.” (See Wait on Actions and Defences, vol. 4, pp. 483, 484, 485, 486, 495, 496.)
   Scoeield, J.,

delivered the opinion of the court:

In June, 1846, S. A. Belden, the deceased partner of the claimant firm, accompanied the United States Army into Mexico as a sutler. Afterward, in company with William Ailing, the surviving partner and claimant in this suit, he opened a store at Matamoras, then occupied by our troops, and began trading under the firm-name of S. A. Belden & Co. During ■ the war this firm imported goods into Mexico, from time to time, upon which they paid a duty to the United States of 30 per cent, ad valorem. A treaty of peace was signed February 2, 1848, ratified and exchanged May 30,1848, bnt not finally proclaimed till July 4, 1848. By article 19 of the treaty it was stipulated that all merchandise imported into Mexico during the military occupancy by the United States should be exempt from confiscation and charge on sale. In June, 184^, a large amount of leaf tobacco was imported by R. B. Kingsbury. In September following he sold 300 bales to S. A. Belden & Co. As this tobacco was brought in after the ratification of the treaty, and just before the evacuation by the United States forces, its right to exemption was much questioned. Mexico had farmed out to a single company the exclusive right to deal in leaf tobacco, and the interests of the company were jealously watched by many agents. More than a year elapsed before Belden & Co. could obtain the necessary permits to send their tobacco into the interior for sale. When the permits were finally secured, and the tobacco started to market, it was seized and detained at Saltillo by an order from Judge Gomez, obtained upon a complaint made by an agent of the monopoly that the same had been illegally imported. Belden & Co. were twice summoned to appear and defend, but under the belief that a fair hearing would not be accorded them they neglected to respond. Smuggling under the Mexican law was punished by a forfeiture of the goods and a fine of double their value. • A decree was finally made, confiscating the tobacco and imposing a fine of $26,309.12 upon the owners. Execution. with clause of capias for the collection of the fines, ivas served upon Belden March 6, 1850. To avoid arrest he crossed the river to Texas. The stqre of goods at Matamoras was levied upon and sold. Belden & Co. gave no further attention to their affairs in Mexico, but applied to the President and Congress for indemnity and relief. The President referred the matter to the minister at Mexico, and Congress passed the Act February 10, 1855 (10 Stat. L., 847). Under this act Belden & Co. received $18,347.28, and executed the assignment presented in the fifth finding of facts.

The claim was again laid before the United States and Mexican Claims Commission, sitting in Washington under the convention of July 4, 1868. After a long and most laborious consideration of the case, the commission made the order and award set out in full in the sixth finding of facts. The whole allowance on the claim was $53,099.25. The commission also found tliat $35,920.81 of this sum belonged t,o the United States by assignment, and $17,178.44 to Belden & Co. The award was payable in thirteen annual installments. Prior to the inception of this suit five installments, amounting to $19,010.57, have been paid to the Secretary of State. This sum was divided by the Secretary between the United States and Belden & Co. in the proportion of the right of each as set out in the award, to wife, to the United States $12,843.06, and to Belden & Co. $6,167.51. Against this division the claimant protested.

He obtained a rehearing before the Hon. William M. Evarts, when Secretary of State, but the Secretary indorsed the action of his predecessor. Thereupon he brought suit in this court, and now claims that neither the commission nor the Secretary had authority to act in the premises. Granting that claimant’s rights are not concluded by these decisions, it must be conceded that an opinion, arrived at by gentlemen distinguished not only by their high position, but by their ability and probity, entirely disinterested and under the necessity of making a full examination of the facts and the law of the case, is certainly entitled to great consideration.

Going behind the judgment of the commission and the Secretary, we come to the act of Congress under which a part of this claim was assigned to the government. That act diréets the Secretary of the Treasury: First. “ To ascertain the amount of duties paid by Belden & Co. upon merchandise,” of which .“merchandise or the proceeds of sale” they had been deprived by the wrongful act of Mexico. Second. To pay or refund the “ amount thus ascertained” to Belden & Co. Third. To take an “assignment of all their right to the amount so refunded, when recovered from the Government of Mexico.”

Belden & Co represented their loss to be more than $300,000. Congress acted upon that representation. It was doubtless their intention to share that loss to the extent of the duties paid upon the lost property. If thereafter the value of the lost property should be recovered from Mexico, Belden & Co. could have no claim for indemnity or charity upon their own government. In that event they were to pay back the amount refunded, and to secure the repayment by making “ legal assignment to the United States of all their right to the amount so refunded when recovered from the Government of Mexico.”' When what was to be recovered from Mexico ? Duties paid to. the United States'? Certainly not. They had no such item in their claim. The claim was for the value of property taken, not the items which entered into the original cost. It cannot be supposed that Congress expected Mexico to settle by taking the cost of goods in New York, adding transportation, insurance, duties paid the United States, interest on investment, and a precentage for profit. They, of course, understood that the value of the property in the market of Matamoras, not what it might have cost Belden & Co. to place it there, would be the measure of damages. There is some awkardness in the language of the act, occasioned by the necessity of describing at considerable length the mode in which the amount of duties to be refunded to Belden & Co. should be ascertained. But when ascertained and .paid they were required to assign an amount of their claim equal to the amount so refunded.” To limit the assignment to a claim for duties paid to the United States would be absurd. If it covered nothing more than that it would be entirely worthless and meaningless; for they never had, and never could have, such a claim. With some reason the law might have limited the assignment to the claim for goods in Matamoras, or for tobacco at Saltillo, or for debts due them in Mexico (for all these were items in the claim), but it did not. It only fixed the amount to. be assigned, and thus made it a lien, not upon any particular item of the claim, but upon any sum recovered.

But it is said that the assignment should at least be limited to damages recovered for merchandise which was lost, either “in the form in which it was imported or in the proceeds of sale.” This language is employed in the law, as before stated, to fix the amount of duties to be refunded, not the security to be given for repayment. But, conceding the construction claimed, was not the tobacco a part of “ the proceeds of sale”? Belden & Oo. did not import it, but bought it at Matamoras in the regular course of trade. It does not appear how it was paid for; but, considering the large amount of merchandise taken to Matamoras, and the small amount, including debts due, found on hand, it is not unreasonable to infer that the tobacco was a part of the proceeds of sale” of merchandise.

It is further said that, inasmuch as Belden & Oo. recovered only a small part of their claim, the government ought not, injustice, to retain the whole amount of the refund. It is true that the award was much less than the claim, but, considering tbe high character and disinterestedness of the tribunal by which it was made, it must be held to be equal to the real loss. From a careful examination of the opinions and argument of the commissioners and the evidence before them, it appears, not that the award was too small, but that the claim was too large.

In the construction of the law we concur with the commissioners and the Secretary of State, that the repayment to the United States was to be made from whatever sum might be recovered from Mexico. According to this construction, the fund received in the State Department has been properly divided.

The judgment of the court is that claimant’s petition be dismissed.

Nott, J., was not present at the hearing of this case, and took no part in its decision. .  