
    SPENCEE’S CASE.
    (8 Court of Claims R., 288 ; 92 U. S. R., 577.)
    Horatio N. Spencer, appellant, v. The United States, appellees.
    
      On the Claimant’s Appeal.
    
    
      Cotton shipped to Memphis by a private party is seized by a Treasury agent, not as captured or abandoned property but to protect the interest thwein of the slaves who made the crop. The cotton is sold by the agent, and the proceeds paid over to persons claiming to be the owners. The true owner brings suit under the Abandoned or captured property Act for the proceeds, which have never reached the Treasury. The court below decides that the Government is not liable for the illegal acts of the Treasury agent. Judgment for the defendants. The claimant appeals.
    
    No suit can be maintained under the Abandoned or captured property Act if the property was neither captured, seized, nor sold pursuant to its provisions, and the proceeds thereof are not in the Treasury. Hence, where Treasury agents seized certain cotton, not as captured or abandoned, but to protect the interests of the slaves who made the crop, and sold it, paying the proceeds to one who was not the owner, the true owner cannot maintain a suit against the Government for .the proceeds, under the act.
    
      The Reporters’ statement of the case :
    The attempt here was to hold the Government liable for moneys which never reached the Treasury, on the ground that a right of action against -the officers who illegally seized and sold tlie claimant’s property lias been taken away by certain acts of Congress, which have at the same time directly or impliedly ratified such proceedings and assured the injured parties of relief by suit in the Court of Claims, to be satisfied out of the abandoned or captured property funds. It will be seen that the Supreme Court does not enter into a discussion of this question, but does very pointedly decide that no such action can be maintained under the captured-property act. To show clearly the scope of the important question presented or sought to be presented to the court, the argument of the counsel for the claimant is given at length.
    It is also to be noticed that after the case had been argued, the court ordered an additional finding of facts tobe made and returned by the court below. (See p. 476, post.) Both of these findings are now given.
    1. The claimant was the ower of the plantation known as “ Highland Place,” in Carroll Parish, Louisiana, and on which the forty bales of cotton claimed in this action were raised, with his own hands, in the year 1862.
    2. The crop of 1862 amounted to about three hundred and ninety bales, two hundred and forty of which had been ginned by the overseer, and two hundred compressed into bales, which were removed to a cane-thicket for safety, where they were afterward discovered and burned by the rebels.
    McCorkle, the overseer, left the plantation in February, 1863, and one James Bland, who was foreman, appears to have taken control. Some short time after McCorkle left, Bland and the colored men on the place compressed the remaining ginned cotton into forty bales, leaving about one hundred aud fifty bales of seed-cotton in the gin-house, and hauled the forty bales now in suit out to Mrs. Blackburn’s, as the witnesses say, “ to save it for their old master, who had been, kind to them.” It was stored in Mrs. Blackburn’s back yard, and she promised to take care of it. But, contrary to her promise, some time after she shipped it up to Memphis, Tenn., where it fell into the hands of Thomas H. Yeatman, special agent of the Treasury Department.
    3. The cotton appears to have been in bad condition when it reached Memphis, where it was rebaled, and compressed into thirty-five bales, which were afterward sold by Thompson & Co. at public auction, by order of the spéeial agent of the Treasury Department, Yeatman, and tlie net proceeds, amounting to $6,628.49, paid over to Yeatman, for which he executed his receipt.
    4. In the mean time the colored men on the plantation, hearing of this movement of Mrs. Blackburn, followed the cotton to Memphis, and there claimed it as their property, and the special agent of the Treasury, Mr. Yeatman, wrote as follows to the Secretary:
    “ Cincinnati, January 2, 1868.
    “ Dear Sir : Your communication of 22d October last, referring to Mrs. Blackburn’s forty bales of cotton, would have been answered sooner had it not been for the indisposition of Mr. Thompson, the warehouse agent, who had charge of the cotton, and also the desire to get a letter from Mr. Lacy, the agent of Mrs. Blackburn. The cotton of Mrs. Blackburn in question never was formally seized by any agent of the Government, but temporarily detained, more on account of complaint of some negroes who said the cotton had belonged to them, and they were forced to sell the same to Mrs. Blackburn at a price quite below the market-value. These facts were made known to General Superintending Agent Mellen, and it was agreed, after a consultation with him, by her and her agents, to allow the negroes the further sum of $2,000. This money was detained out of the proceeds of the cotton, which was directed to be sold by Mrs. Blackburn and agents, and by me paid over, by Mr. Mellen’s order, to my successor in office, J. M. Toraeny, whose receipt I hold, who in turn was ordered by Mr. Mellen to send the same to Treasury Agent McFarland, at Goodrich Landing, to be paid to the negroes claiming.
    “I further state that I never sold any cotton regularly taken possession of by me as Treasury agent, unless so authorized by the Secretary of the Treasury or the superintending agent, Mellen, and, as before stated in regard to this particular lot claimed by Mrs. Blackburn, it was only temporarily detained on complaint of the negroes for want of a fair consideration, all the facts being made known to Mr. Mellen; the matter, as before stated, was settled by Mrs. Blackburn agreeing to pay the further sum of $2,000.
    “While this negotiation was going on, Mr. Thompson, who had possession of the cotton, rebaled the same at the instigation of Mrs. Blackburn and agents, Lacey, Able & Go., reducing the number of packages to thirty-five bales, and gave them full control of it after the above compromise was made, to wit: the cotton was sold by their order, through me, the $2,000 retained, and the balance of the proceeds paid over to Mrs. Blackburn and agents, as per receipts filed.
    “ Very respectfully, yours,
    “THO. H. YEATMAN,
    “ Late Special Agent Treasury Department.
    
    “ Hon. Hugh McCulloch,
    “ Secretary United States Treasury.”
    5. Out of this sum of $6,628.49, $2,000, less $184, paid to one Munson, and $100 to Greed Bland, was, on the 24th of May, 1864, paid, under the direction of W. P. Mellen, supervising special Treasury agent, to nineteen colored men belonging to the claimant’s Highland Place, and their joint receipt taken therefor.
    The remaining $4,628.49 were paid by Yeatman to Mrs. Blackburn’s attorneys, who executed the following receipt:
    “ Received of Thomas H. Yeatman, assistant special agent of the Treasury Department, Memphis, February 10,1864, the sum of $4,628.49, in full of all demands of forty bales of cotton purchased by Mrs. C. A. Blackburn from the negroes on the Spencer plantation, near Lake Providence, Louisiana. Said cotton was shipped by her order to Lacey, Able & Co., and seized by the Government official at Memphis, and the above is in full of compromise, the negroes being allowed $50 per bale.
    “ FOSTER, GREGOR & CO.,
    
      u Attorneys for Mrs. O. A. BlaeliburnP
    
    Ordered, in this case, that in answer to the rule of the Supreme Court of the United States for a further finding on two questions of fact stated in said rule, it be certified to said court as follows:
    In answer to the question “ Whether the cotton which is the subject of the action was received or collected by any agent specially appointed by the Secretary of the Treasury for that purpose, as captured and abandoned property, under any act of Congress providing therefor,” it is certified that the said cotton was never formally seized by any agent of the Government as captured or abandoned property; but when it fell into the hands of Thomas H. Yeatman, special agent of the Treasury Department, as stated in the finding of facts, it was by him temporarily detained, under color of office, on account of the complaints of the negroes, who claimed it, as stated in finding 4; and afterward, with the consent of Mrs. Blackburn and the negroes, and under instructions received from Supervising Agent Mellen, the cotton was sold by Yeatman, and of the proceeds, $4,628.49 was paid by him to Mrs. Blackburn, and the remainder, $2,000, was paid over by him to his successor in office, who, by order of said Mellen, sent the same to a special agent of the Treasury at Goodrich Landing, who paid it to said negroes, it being-known to said Yeatman at the time of the sale that the cotton was brought to Memphis by Mrs. Blackburn as having been purchased by her from negroes on the claimant’s plantation.
    In answer to the question “Whether, if so received or collected, it was sold as such, and the proceeds paid to any agent of the United States whose duty it was to accept and transmit the same to the Treasury of the United States,” it is certified that the cotton was sold by Special Agent Thomas H. Yeatman, and the proceeds of the sale were received by him as stated in the preceding answer; it was not sold as captured or abandoned property.
    
      Mr. Joseph Casey (with whom was Mr. George Taylor) for the appellant:
    The judgment of the Court of Claims, as will be seen from the opinion, is predicated upon the legal propositions that the United States were not liable for the mistake of their agent and his diversion of the funds belonging to the claimant; and that the right to sue for such proceeds under the provisions of the act of March 12, 1863, was contingent upon their having-been “ actually or constructively paid into the Treasury ” of the United States.
    The positions we shall attempt to maintain in this argument are the following: That under the facts of this case Yeatman and Mellen, in seizing and selling- our property and disposing of its proceeds, were acting “ by virtue and under color ” of the Captured and abandoned property Acts. That in paying over to third persons the proceeds of the claimant’s property, in good faith, but under a mistake of the law and their power under it, they became liable to him for the same. That, under the third section Act July 27,1868, the agents are exonerated, and their liability assumed by the United States, with jurisdiction conferred on the Court of Claims. That to maintain this action it is not necessary, under the facts found in this case, that the proceeds of the property should have been paid into the Treasury of the United States.
    I. The rule of liability laid down in the opinion of the Court of Claims as a general proposition is indisputable. But we, at the same time, contend that, under the legislation of Congress, it has no application to the case at bar. The Act July 28,1866, (§ 8, 14 Stat. L., 329,) provides :
    “That the provisions of the third and fourth sections of the Act March 3,1833, (4 Stat. L., 632,) and the twelfth section of the Act MarchS, 1863, (12 Stat. L., 741,) ‘ shall be taken and deemed as extending to and embracing all cases arising, or which may have heretofore arisen, and all suits and prosecutions heretofore brought and now pending, or which may hereafter be brought, against any officer of the United States or other person by reason of acts done, or proceedings had, by such officer or other person under authority or color of the acts approved’ March 12, 1862, and July 2, 1864: Provided, That such acts done or proceedings had under the two last acts aforesaid, or under color thereof, shall have been done and had under the authority and direction of the Executive Government of the United States: And ¡provided further, That when a recovery shall have been, or shall hereafter be, had in any such suit or prosecution brought, or which may hereafter be brought, as aforesaid, the payment of the amount recovered, as provided for in the said twelfth section of the act approved March 3, 1863, aforesaid, shall be made out of the moneys arising and obtained from the proceeds of sales, and leases and fees collected and paid over to the Government under the two acts approved March 12,1863, and July 2,1864, aforesaid, in relation to captured and abandoned property.”
    The third and fourth sections of the Act March 2, 1833, (4 Stat. L., 632,) referred to in this enactment, provide for the removal of suits against officers or agents of the United States for any alleged acts done by them in executing the revenue laws of the United States, from the State courts to the circuit courts of the United States, &c., and for the authentication of the records in those cases.
    
      The twelfth section of the Act March 3,1863, (12 Stat. L., 741,) enacts:
    “That in all suits or proceedings against collectors or other officers of the revenue for any act done by them, or for the recovery of any money exacted by or paid to such officer, and by him paid into the Treasury of the United States, iu the performance of his official duty, in which any district or other attorney shall be directed to appear on behalf of such officer by the Secretary or Solicitor of the Treasury, or by any other proper officer of the Government, such attorney shall be allowed such compensation for his services therein as shall be certified by the court in which such suit or proceedings shall be had to be reasonable and proper and approved by the Secretary of the Treasury; and where a recovery shall be had in any such suit or proceedings, and the court shall certify that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.”
    In the eighth section of the Act June 25,1868, (15 Stat. L., p. 77, § 8,) it is provided :
    “ That no person shall file or prosecute any claim or suit, in the Court of Claims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending any suit or process in any other court against any officer or person who, at the time the cause of action alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States, unless such suit or process, if now pending in such other court, shall be withdrawn or dismissed within thirty days after the passage of this act.”
    The following are the first and third sections of the Act July 27, 1868, (15 Stat. L., pp. 243, 244:)
    “ Sec. 1. That all the provisions of section eight of the act of July twenty-eight, eighteen hundred and sixty-six, entitled ‘An act to protect the revenue, and for other purposes,’ and the forms and modes by that section and the twelfth section of the act of March three, eighteen hundred and sixty-three, therein referred to, prescribed for prosecuting suits, withholding executions, and paying judgments against officers of the United States, or other persons engaged in executing the acts relative to captured and abandoned property, shall extend and be applied to all suits and proceedings (except those in behalf of the United States) which have been brought, or may hereafter be brought, against any officer or agent of the Government, civil or military, for acts done during the rebellion while acting by virtue or under color of his office or employment; and every defendant in such suit or proceeding having made full defense thereto, and having notified the Attorney-General of the United States to appear and defend the same, shall be entitled to the full benefit and protection provided in said section for officers and agents of the Government engaged in the collection of the public revenue; and any defendant being aggrieved by any order or direction, ruling, or judgment of any court made or had in any such proceeding, may except thereto and appeal therefrom to the Supreme Court of the United States, and have the questions arising there heard and determined.
    #***##
    “ Sec. 3. And be it further enaeted, That it is hereby declared to have been the true intent and meaning of the act approved March twelve, eighteen hundred and sixty-three, entitled ‘An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States,’ that the remedy given in cases of seizure made under said act, by preferring claim in the Court of Claims, should be exclusive, precluding the owner of any property taken by the agents of the Treasury Department as abandoned or captured property, in virtue or under color of said act, from suit a,t 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, or the act approved July second, eighteen hundred and sixty-four, entitled ‘An act in addition to the several acts concerning commercial intercourse between loyal and in-surrectionary States, and to provide for the collection of captured and abandoned property, and the prevention of frauds in States declared in insurrection,’ tbe 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.”
    The act of July 27, 1868, came under review in a case before the late Chief-Justice in the circuit court for South Carolina, in 1869. (McLeod v. Oallieott, 10 Int. Rev. Record, pp. 94, 95.)
    In charging the jury, Chief-Justice Chase said, on this point:
    “By an act passed on the 27th day of July, 1868, Congress declared the intent of the several acts relating to captured property. Among these was the abandoned or captured property act of March 12,1863, of which, as well as of the others, the true intent was declared to be that the remedy given in cases of seizure, by preferring claim in the Court of Claims, should 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 act,’ from suit at common law, or any other mode of redress whatever, before any other court or tribunal other than the Court of Claims. It will be for you to say whether the defendant in taking this property proceeded under color of that act. If he was proceeding in good faith, believing himself to be warranted as the officer of the National Government in taking charge of the cotton under that act, we think he is covered by its provisions. We adopt this view the more readily because, in a subsequent part of the act, it is provided that in all cases iu which ‘ suits of trespass’ (which is this case) ‘may have been brought, or shall hereafter be brought, against any person, for or on account of private property taken by such person, as an officer of the United States, by virtue of any act relating to captured or abandoned property,’ and the defendant shall plead or allege in bar, thereof that such act was done or omitted to be done by him as an officer of the United States, in the administration of one of the acts aforesaid, or in virtue or under color thereof, such plea or allegation, if the fact be sustained by the proof, shall be deemed and adjudged in law to be a complete and conclusive bar to any such suit or action.
    
      “ It is our duty under this act to say to you that the plea of the defendant in this case is a conclusive bar to this action, if you find affirmatively that the acts of his complained of in the declaration were done by him in virtue or under color of any of the acts referred to. If it was done by him as supervising special agent, under a mistake as to the character of this property, he is in our judgment protected by this act. It would not protect the United States from a demand in the Court of Claims for this property, but it would protect the officer against the private suit if he acted under color of this law, or under a mistaken sense of duty, though not in strict pursuance of law.”
    In the case of Buron v. Denman, (2 Excheq. Bep., 188, 189,) after holding that there was a subsequent adoption and ratification by the Queen of the unauthorized and illegal acts of Commander Denman, the question arose whether it was like the case of individual principals and agents, where a subsequent ratification and adoption of the act gave the aggrieved party a remedy against either or both, the principal and agent. But the court clearly holds that the act of the Crown absolves the officer, ahd left it alone responsible. B. Parke says: “ If an individual ratifies an act done in his behalf, the nature of the act remains unchanged. It is still a mere trespass, and the party injured has his option to sue either. If the Crown ratifies an act, the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass, or the principal who ratified it, but a remedy against the Crown only, (such as it is,) and actually exempts from all liability the person who commits the trespass.”
    Many authorities on the same subject are collected in Potter v. North, (1 Saund., 347 c;) Mitehellv. Harmony, (13 How., 115;) The Rolla, (6 Bobinson, 364.) In this latter case, the question was as to the validity of an act done by a naval officer. Lord Stowed, in delivering the judgment, says : “ However irregularly he may have acted toward his own government, the subsequent conduct of government in adopting that enterprise, by directing the extension of that conquest, will have the effect of legitimating the acts done by him, so far at least as the subjects of other countries are concerned.”
    In our case the adoption and ratification is. stronger and more direct than in any of the cases cited. It is by solemn public statutes enacted by the legislative power of the nation, to whom the subject properly and appropriately belonged. It is a full, definite, express adoption, leaving nothing to inference or construction. And to doubly exclude any other conclusion, expressly forbids any suit to be brought against any one else than the United States, and forbids jurisdiction to any other court than that where the United States alone can be sued. Either this suit can be maintained, or the claimant is without remedy, here or anywhere else.
    It was also adopted and ratified by the Treasury Department, especially in settling the accounts of the agents and recognizing this payment. The Secretary of the Treasury claimed and exercised the right for himself and his agents, under the Captured and abandoned property Acts, to adjudicate and determine the rights of individuals to the cotton seized or its proceeds ; and in accordance with that view released many thousands of bales of captured cotton, and several millions of dollars of proceeds. The question was finally submitted to the Attorney-General, and by him, on the 5th of July, 1865, decided adversely to the power claimed by the Treasury Department. (See 11 Opinions Attorneys-General, pp. 276, 277.)
    Acting “ under color of a law” is of course not the same as “ acting in virtue of a law,” because, in all the statutes here quoted, they are put as cumulative grounds for granting immunity to the officer. So title and color of title are different. The right to an office, and color of office, are distinguished.
    In all these cases the distinction is clear and palpable. To act under color of law is where an officer having a right to execute, or act under a law, in good faith performs an act which he believes to be within his powers, but which are unauthorized by the law. A man enters under color of title when he comes in iu good faith under a deed purporting to convey the title, but which does not. A man acts by color of office when he exercises its functions under an election or appointment which he believes confers the right to it, but in which belief he is mistaken. “An officer defacto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” (Lord Ellenborough, King v. Com. of Bedford, 6 East-., 369; see also 1 Ld. Raymond, 660. Plymouth v. Painter, 17 Conn., 588, and the cases there reviewed; The People v. PLopson, 1 Denio, 579; Commissioners v. MoKisson, 
      2 Eawle, 139; Melnstry v. Tanner, 9 John., 135; Tuclcer v. Aiken, 7 N. H., 132; Reynolds v. Orris, 7 Cow., 272; Tweed!s Case, 16 Wall., 518, 519.)
    In Wright v. Mattison (18 How., p. 56) this court defines what is color of title. Mr. Justice Daniel says : “ The courts have concurred, it is believed, without an exception, in defining ‘color of title’ to be that which in appearance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title. The inquiry with them has been, whether there was an apparent or colorable title under which an entry or a claim has been made in good faith.”
    Such was the view of what constitutes acting “ under color of these laws,” taken by this court iu Tioeed’s Case, (16 Wall., 518, 519,) and by the late Chief-Justice in the Oallieott Case, already cited. The same view is held by Judge Blatchford iu Britton v. Butler, (9 Bl. C. C. Rep.)
    It must be evident, therefore, to the court, from the construction and interpretation given to these captured and abandoned property laws by the Secretary of the Treasury and his subordinates, at the time of these transactions, that Mellen and Yeatman were in good faith acting under color of these laws. That the very contingency contemplated by the act of July 27, 1868, and the acts to which it was in addition, occurred iu the transactions which make the fact in the case at bar.
    They were the regular officers de jure in charge of the affairs. They had the right to receive this cotton. They lawfully sold it, and converted it into money. Their superior officer and they claimed they had the right to adjudicate and release these proceeds under the law. There is no evidence of any fraud or intentional wrong. On the contrary, the presumption is the other way, and that they acted honestly and in good faith. But they were mistaken as to the extent of their power and authority under the law. They acted, in other words, not “ by virtue” but “ under color” thereof in the administration of the law.
    Having acted in this manner, is it not clear that they were entitled to the protection of the acts of 1833, 1863, 1866, June 25,1868, and July 27, 1868 ¶ Is it not clear that the acts recited would have afforded them not only protection and indemnity, but absolute immunity % All such as these of their acts were accepted, ratified, and adopted by these laws of Congress, and became thenceforth acts of state for which the United States were alone responsible, for they have no partnership liability. Wherever the United States is liable the officer is exonerated. Wherever he is liable the United States are not.
    Nor is there, in our view, anything in the act of March 12, 1863, which conditions the right of the owner to bring this action upon the performance of the duty enjoined upon the agents to pay the money into the Treasury.
    The receipt of the proceeds by the United States is the foundation of the right and the action, and not their actual payment into the Treasury. This receipt is as complete and perfect whenever the sale is made and the money paid to the agent as if it were actually in the hands of the United States Treasurer. The act makes special provision for a case where no money is ever actually received by the United States, and where, of course, there could be no payment of it into the Treasury. In such case it is to be appraised and a certificate made. This certificate stands in the place of the proceeds ; and the owner recovers, not the amount of proceeds, but the amount of the appraisement. The act of July 27, 1868, § 3, shows clearly that in order to maintain an action in the Court of Claims, under the captured and abandoned property acts, it is unnecessary to show that the property was sold and the proceeds in the Treasury ; for that act provides 11 that the remedy given in cases of seizure under said act, by preferring claim in the Court of Claims, should be exclusive, precluding the owner of any property taken by the agents of the Treasury Department, as abandoned and captured property, in virtue or under color of said act, from suit at common law, or any other mode of redress whatever, before any court or tribunal other than said Court of Claims.” And provides further, “ 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, or of the act of July 2,1864, the defendant may and shall plead or allege in bar thereof that such was done by him or admitted to be done by him as an officer or agent of the United States in the administration of one of the acts aforesaid, or in virtue or under color thereof. And such plea, if 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.”
    Thus it will be seen that for every injury done to an owner of such property, by virtue or under color óf these acts, he is precluded from suing anywhere — in any court, in any form of action — other than in the Court of Claims. The claim can only be preferred there, and there only, against the United States. It must be obvious to the court at a glance that many causes of action against these agents and officers would under these acts arise, where no proceeds ever wont into the Treasury ; and yet all these are made cognizable by and in the Court of Claims. Wrongful seizure, unjust detention, embezzlement, or misapplication of proceeds by the officers and agents, are all assumed here by the United States as their own acts, and responsibility for them incurred and immunity granted to the agent or officer.
    The after part of the section, to preclude and exclude all doubt, provides for the manner in which such immunity of the officer or agent shall be established and declared.
    That this is the true construction of the acts appears, we think, conclusively by the proviso to the third section of the act of July 27, 1868: “Provided, however, That no judgment recovered in accordance with this act shall be paid by the United States, unless the amount received by the defendant as the proceeds of the transaction which was the foundation of the suit shall have been paid into the Treasury, except upon an appropriation duly made therefor after a full examination of the claim upon its merits.”
    This proviso does not relate, as will be seen, to the payment of judgments obtained against officers and agents, acting in virtue or under color of the captured and abandoned property acts, but had especial reference to “judgments recovered in accordance with this act;” that is, evidently against those officers and agents mentioned in the first section of this act, and to whom the same protection and indemnity were thereby extended as had been to those under the captured and abandoned property acts, by the act of July 28,1866, specially referred to. It could not refer to the latter, for by the third section these were granted entire immunity from suit, and consequently no judgment could be rendered against them, and therefore totally unnecessary to provide for their payment.
    The act of July 28, 1866, section 8, directed that payment of judgments recovered, or to be recovered, “ against any officer of the United States or other person, by reason of acts or proceedings had by such officer or other person, under authority or color of the acts approved March 12,1863, and July 2, 1864,” “shall be made out of the moneys arising and obtained from the proceeds of sales and leases,” &c., under the captured and abandoned property acts. In other words, here is a standing and general appropriation, out of a designated and well-defined fund for the payment of judgments obtained against agents for acts committed against the rights and property of individuals under these laws. Then by the third section of the act of July 27, 1868, the United States step in and say, “You shall no longer maintain a suit against these captured and abandoned property agents for acts done by virtue or under color of these laws. We assume the direct responsibility of those acts. The officer shall be exonerated, and we answer for the same acts in the Court of Claims. If the officer acted in good faith under color of the law, but so as to incur a legal liability, we assume that liability directly instead of indirectly. And payment is already provided for by act of July 28,1866.”
    
      Mr. Assistant Attorney- General Smith for the appellees:
    The various statutes cited by the claimant refer solely to suits brought against individuals, directing what pleas shall be deemed a defense if sustained by proof. The United States can only be sued in such cases and manner as its statutes may indicate. A right to sue is not to be derived by inference drawn from provisions declaring how certain suits may be defeated.
    This is a claim for the proceeds of captured or abandoned cotton, if it has any basis against the United States; but it was neither. It was sent to Memphis by Mrs. Blackburn, the person to whose care the claimant’s foreman had confided it, for sale; sold there with her consent, she receiving the agreed proportion of the purchase-money, and not as abandoned property. It never was captured, it never was abandoned, within any authorized definition of either of those terms.
    If it were, then the jurisdiction of the Court of Claims arises solely under the fourth item of section 1059 of the Revised Statutes, p. 196, which does not include cases circumstanced like the present. The remedy is specifically con fined to that given by the acts of March 12, 1863, and July 2, 1864, and applies only to the proceeds of property paid into the United States Treasury. It does not apply to torts done to person or property by the officers or agents of the United States. (Gibbons v. United iStates, 8 Wall., 269; United States v. Grussell, 14 Wall., 1.)
   Mr. Chief-Justice Waite

delivered the opinion of the court:

In this case the Court. of Claims has certified here, in answer to inquiries from us, 1, that the cotton in question did not come into the hands of any agent of the United States as abandoned or captured property, and was not sold as such; and 2, that the proceeds of the sale were not paid into the Treasury of the United States.

Upon this state of facts the judgment of the court below was clearly right. It is certain that no suit can be maintained against the United States under the Abandoned and Gaptured ■property Aot, if the property has neither been captured, seized, nor sold pursuant to its provisions, and the proceeds are not in the Treasury.

The judgment of the Court of Claims is affirmed.  