
    ANNA M. COLMAN, Widow and Sole Legatee, v. THE UNITED STATES.
    [No. 22900.
    Decided February 24, 1903.]
    
      On the Proofs.
    
    A provost-marshal in St. Louis during the civil war, without express authority from the Government, he assuming to act only in his individual capacity, receives money from numerous drafted men to bo paid to their substitutes, or, where no substitutes are procured, to be returned to the depositors. He is charged with fraud and the money is seized. A court-martial sentences him to turn over the money to military authority, to pay a fine, and to be imprisoned until the money is turned over and the fine paid. He refuses to turn over the money, which is in the hands of the military authorities, and remains in prison until relieved on habeas corpus. The money is used by the Government.
    I. A court-martial has jurisdiction of the case of a provost-marshal charged with receiving money from drafted men to be paid to their substitutes and fraudulently appropriating it to his'own use; and the sentence of the court that the money to be turned over to the military authorities is not illegal. Howry, /., dissenting.
    II. Where a package containing $30,019 was taken from a provost-marshal by the military authorities, and only $18,963 thereof was found by a court-martial to have been embezzled from third parties, the defendants have no legal right to retain the balance, $11,086.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found bj^ the. court:
    I. Charles D. Colman, mentioned in the petition, was appointed by the President, J une 2,1863, provost-marshal for the First Congressional district of the State of Missouri, wilh the rank of captain of cavalry. Prior to February 25, 1865, he received from numerous drafted men or from their brokers various sums .of money upon the express trust that when a substitute tendered by such drafted men was accepted and enrolled the deposit should be paid to the substitute, and that in case no substitute was accepted the money should be returned to the conscript. This money was received by him for the parties. The deposit of this money was not required by him nor by anyone in authority. This practice ór custom arose from the fact that frequently a substitute would receive his bounty from a drafted man before being accepted and sworn in, and upon rejection would disappear. It was at the request of the substitute brokers at St. Louis that Colman did this and not in consequence of any requirement by him. He declined at first to receive these deposits, claiming that it was no part of his official duty, but finally consented to receive ■ them, but the money was paid to him solely upon the faith of bis office. In no instance did a substitute duty accepted fail to receive his money on application to him. In this'manner more than a million dollars passed through Colman’s hands.
    II. Under the thirteenth section of the enrolling act approved March 3, 1863 (12 Stát. L., 731, 733), the Secretary of War, June 30, 1863, fixed three hundred dollars' ($300) as the sum to commute liability under a specific draft, and authorized the collector of internal revenue in each district to receive the same.
    It does not appear that Charles D. Colman was ever designated by the Secretary of War or any other superior authority to be the depositary of any funds.
    I1T. On and before February 10, 1865, the Bank of St. Louis, in the city of St. Louis, State of Missouri, was bailee of a package containing money and Treasury notes' of the United States of the value of thirty thousand forty-nine dollar's (§30,019),- which it held at the time as a special deposit theretofore made ly the said Charles D. Colman, which money and Treasury notes were in his lawful possession.
    This package consisted of compound-interest notes of the UnitedStates of the valueof twenty thousand dollars (§20,000), Treasury notes of the United States, commonly called seven-thirties, of the value of four thorrsand five hundred dollars (§1,500), and demand notes of the United States, commonly called greenbacks, of the value of five thousand four hundred forty-nine dollars (§5,119).
    IV. About the 10th clay of February, 1865, Provost-Marshal-General J. S. Baker sent a detachment of soldiers with a commissioned officer to the bank, mentioned in finding in, and thejr there seized the package of rnone}'- mentioned in that finding, and took it to the said provost-marshal-general’s office in St. Louis, Mo., and there turned it over to Capt. J. Hamilton, at that time an officer in the military service of the United States, who, in turn, delivered the said package containing said thirty thousand and forty-nine dollars ($30,019) to Maj. J. A. G. Barker, then an officer in the military service of the United States and acting provost-marshal at said city. On the 28th of February, 1865, said Provost-Marshal-General Baker gave to said Captain Colman the following acknowledgment:
    “HEADQUARTERS DEPARTMENT OE THE MISSOURI,
    “Office of the Provost-Marshal-General,
    
      11 St. Louis, Mo., February 88, 1865.
    
    “Capt. C. D. Colman,
    
      “Benton Barracks.
    
    “Sir: I have the honor to enclose herewith a copy of telegram from Brig. Geni. J. B. Fry, Pro. Mar. Geni., Washington, D. C., directing that the thirty thousand dollars taken from you be turned over to Captain J. Hamilton, must’g and dis’g officer; also' the receipt of Captain Hamilton for that amount.
    “Very respectfully,
    “J. S. Baker,
    “ Gol. and Pro. Mar. GmerulP
    
    and on the 3d of March, 1865, Captain Hamilton gave him an acknowledgment as follows:
    “I have receipted to.Col. J. H. Baker, Pro. Mar. Geni., Department of Missouri, for $30,019.00, thirty thousand and forty-nine dollars, on February 25th, as funds seized by him and reported as money belonging to you.”
    Major Barker’s accounts show that he receipted for $30,019 of the money and securities taken from Colman.
    V. The funds and securities so taken by Colonel Baker consisted of Colman’s own private funds, funds belonging to his clients, and funds that had been deposited with him by drafted men for substitutes or for return to them.
    VI. The claimant is the widow and executrix and sole legatee of the said Charles D. Colman (see will of Charles D. Colman, manuscript evidence, filed June 20, 1902).
    VII. In the month of Majr, 1865, the said Capt. Charles D. Colman was tried at St. Louis, Mo., by a general court-martial, duty appointed, as set forth in the following General Orders, No. 168, and was convicted of certain of the charges and specifications, and sentenced as stated therein:
    “Headquarters Department of the Missouri,
    
      u St. Louis, Mo., July 7th, 1865.
    
    “ General Orders, | “No. 168. j
    “1. Before the general court-martial which convened at St. Louis, Missouri, pursuant to Special Orders, Number 130, current series, from these headquarters, and of which Brigadier-General S. A. Meredith, United States Volunteers, is president, was arraigned and tried:
    “Charles D. Colman, captain and provost-marshal, 1st district of Missouri, on the following’ charges and specifications:
    “CHANGE FIRST.
    “ ‘ Procuring and attempting to procure substitutes for persons drafted and lidhle to be drafted into the service of the United States.’
    “SPECIFICATION first: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure a substitute for one James K. Knight, a person drafted or liable to be drafted into the military service of the United. States. This at St. Louis, Missouri, in or about the month of June, 1864.’
    “Specification second: ‘In this, that he, Charles D. Col-man, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure a substitute for one John H. Rankin, a person drafted or liable to be drafted into the military service of the United States. This at St. Louis, Missouri, in or about the month of August, 1864.’
    “Specification third: ‘ In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure a substitute for one Charles M. Elleard, a person drafted or liable to bo drafted into the military service of the United States. This at St. Louis, Missouri, in or about the month of November. 1864.’
    “Specification fourth: ‘ In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure a substitute for one C. B. Burnham, a person drafted or liable to be drafted into the military service of the United States. This at St. Louis, Missouri, in or about the month of July, 1864.’
    “Specification Fifth: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure a substitute for one E. C. Cushman, a person drafted or liable to be drafted into the military service of the United States. This at St. Louis, Missouri, in or about the month of August, 1864.’
    
      “Specification sixth: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure a substitute for one John Whittaker, a person drafted or liable to be drafted into the military service of the United States. This at St. Louis, Missouri, in or about the month of August, 1861.’
    “Specification seventh: ‘In this, that he, Charles D. Col-man, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure one Williams as a substitute for a person liable to be drafted into the military service of the United States. This at St. Louis, Missouri, on or about the first day of May, 1864.’
    “Specification eigi-iti-i: ‘ In this, that he, Charles D. Colman,-captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment of said district, attempted to procure and did procure one Bircher as a substitute for a person liable to be drafted into the militaiy service of the United States. This at St. Louis, Missouri, on or about the 16th dajr of July, 1864.’
    “Specification ninth: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, while a member of the board of enrollment for said district, attempted to procure and did procure from one Gray, Darner, Cooper, Ferguson, and Edgerton, substitutes for persons liable to be drafted into the militaiy service of the United States. This at St. Louis, Missouri, during the summer and fall of 1864.’
    “CHARGE SECOND.
    “ ‘Making a false entry or statement on a pay-roll for the 'purpose of aiding in obtaining payment of a false, fictitious, and fraudulent claim against the Government of the United States, hi owing the same to be false, fictitious, and fraudulent. ’
    “SpecificatioN: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, did, upon the pay-roll of the employes in his office, for the month of September, 1864, make or cause to be made a false entry or statement to the effect that one McGranahan was in the employ of the United States, in said office, from August 1st to September 30th, 1864, for the purpose of aiding in-obtaining the payment of a claim for services of said Mc-Granahan, which claim was false, fictitious, and fraudulent, and known by said Colman to be such. This at St. Louis, Missouri, on or about the 30th day of September, 1863. ’
    
      “ CHARGE THIRD.
    “ ’■Maldny a false voucher for the purpose of aiding in attaining thepa/yment of a false, fictitious, and fraudxdent claim against the Government of the United States, hnowvng the same to te false, fictitious, and fraudxdent.'1
    
    “ SreoieicatioN: ‘ In this, that he, Charles D. Colman, captain ' and provost-marshal, 1st district of Missouri, did make, or cause to be made, in the name of one Lase, a false voucher for the reward allowed by law for the arrest of a deserter, for the purpose';of aiding one McGranahan in obtaining pa3'ment of a false, fictitious, and fraudulent claim against the Government of the United States, for the reward due for the arrest of a deserter, said Colman knowing said claim to be false, fictitious, and fraudulent. This'at St. Louis, Missouri, on or about the month of December, 1864.’
    “charge fourth.
    “ ‘ Conduct xmtecoming an officer and a gentleman.’’
    
    “ Specification first: ‘-In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, did corruptly accept and receive from one Baranger the sum of twenty ($20) dollars, given him as a bribe, to influence his decision concerning a matter then before him as an officer. This at St. Louis, Missouri, on or about the 31st day of May, 1864.’
    “Specification second: ‘In this, that he, Charles D. Col-man, captain and provost-marshal, 1st district of Missouri, did, habitually during the years 1863 and 1864, at St. Louis, Missouri, purchase and discount for gain the pay certificates, checks, and vouchers due for services to men under his control and direction as employees of the United States, and named Franzele, Johnson, Perry, Starm, Burgess, Watson, Schrabel, Ray, and others, to the scandal and disgrace of the service.’
    “ SPECIFICATION third: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, at St. Louis, Missouri, did, at divers times during the entire year of 1864, himself purchase at a heavy discount vouchers issued by himself to parties for the reward due them from the United States for the apprehension of deserters, to the scandal and disgrace of the service.’
    “Specification fourth: ‘In this, that he, Charles D. Col-man, captain and provost-marshal, 1st district of Missouri, did, corruptly and for purposes of unlawful gain, require all moneys paid by drafted persons and others to substitutes, and the commissions, payable to agents and brokers therein, to be deposited with him, when said substitutes were presented for acceptance as such, and did retain such moneys and neglect and fail to account for the same to the proper parties. This at St. Louis, Missouri, during the year 1864.’
    “CHARGE FIFTH.
    ‘ ‘ ‘ JEnibezzlement. ’
    “SPECIFICATION: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, did, on or about the 6th day of February, 1865, at St. Louis, Missouri, embezzle and corruptly retain and misapply a large sum of money, viz, the sum of thirty thousand ($30,000) dollars, with which he had been entrusted for the payment of enlisted men, and for enlisting men into the service, and for other purposes, said money being the bounty mone}^ paid and intended to be paid by divers persons to others enlisting as substitutes for them in the service of the United States as soldiers.’
    “charge sixth.
    “ ‘Disobedience of orders.’
    “Specification: ‘In this, that he, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, having-been lawfully commanded by his superior officer to turn over to Captain J. Hamilton, mustering -and disbursing officer, certain money in his possession, belonging to substitutes, deserters, and drafted men, viz, the sum of thirty thousand ($30,000) dollars, did wilfully and persistently refuse to, obey the said command. This at Benton Barracks, in the State of Missouri, on or about the 6th day of February, 1865.’
    “To all of which charges and specifications the accused pleaded ‘Not guilty.’
    “finding.
    “The court, having maturely considered the evidence adduced, finds the accused as follows:
    “ Of the first, second, third, fourth, fifth, sixth, and eighth specifications, first charge, ‘guilty.’
    “ Of the seventh and ninth specifications, first charge, ‘ not guilty.’
    “ Of the first charge, ‘ guilty.’
    “Of the specification and second charge, ‘ guilty.’
    “ Of the specification and third charge, ‘not guilty.’
    
      “ Of the first specification, fourth charge, ‘ not guiffy.’
    “Of the second and fourth specifications, fourth charge, ‘guilty.’
    “ Of the third specification, fourth charge, ‘guilty, except the word “ entire.’’ ’
    “Of the fourth charge, ‘guilty.’
    “ Of the specification, fifth charge, ‘ guilty, except the words and figures “thirty thousand (30,000),” substituting in lieu thereof the words and figures “ eighteen thousand nine hundred and sixty-three (18,963).”’
    “ Of the fifth charge, ‘ guilty.’
    “ Of the specification and sixth charge, ‘ guilty.’
    “sentence.
    “And the court does therefore sentence him, Charles D. Colman, captain and provost-marshal, 1st district of Missouri, ‘ to be dishonorably dismissed from, the service of the United States; to forfeit all fay and allowances now dme or hereafter to become due; to be compelled to turn over to such officer as the general commanding the department shcdl designate the sum of eighteen thousand nine hundred and sixty-three {$1.8,963) dollars; to pay a fine of seven hundred {$700) dolla/rs to the United States; to be imprisoned for the period of seven months, at such place as the general commanding the department shall designate, and thereafter until said fine is paid and said sum of money is tm/rned overl
    
    “And it is further ordered by the court ‘'that the crimes of which the accused is hereinbefore found guilty, and his name, place of abode, and punishment be published in the 'newspapers of the State of Missouri, after which it shall be deemed scandalous for1 any officer to associate with him.’’
    
    “Finding and sentence confirmed. Charles D. Colman, captain and provost-marshal, first district of Missouri, is hereby dishonorably dismissed the service of the United States". The stoppages will .be made by the proper officers. The sum of eighteen thousand'nine hundred and sixty-three dollars will be turned over to the chief paymaster of the department. The fine will be paid to the chief quartermaster of the department, who is charged with the publication required by the sentence. The Missouri State Penitentiary, at Jefferson City, Mo., is designated as the place of imprisonment to which the prisoner will be sent for confinement, in accordance with the terms of the sentence, under the direction of the provost-marshal-general.
    “By command of Major-General Dodge:
    “J. W. Barnes,
    
      “Assistant Adgutant- OeneralU
    
    
      The sentence of said court-martial was duly executed, the Government already having- in possession the $18,963, in conformity to the above order of General Dodge, and was not otherwise turned over by deceased. After said Colman was imprisoned for seven months, pursuant to said sentence of the court-martial, he was still held in prison under the above-quoted part of said sentence until April 28,1866, when he was released and discharged under habeas corpus proceedings instituted in the United States Circuit Court for the eastern district of Missouri. Following is a duly certified copy of the judgment of said court in that case:
    “United States oe America,
    “ District of Missouri.
    
    “April term, 1866. Saturdajq April 28, 1866.
    “In the matter of the petition of Charles D. Colman for a writ of habeas corpus.
    “The petitioner being in court in custody of the marshal, and the court having examined the motion in writing heretofore filed herein by said petitioner for his discharge upon the return made by Horace A. Swift, warden of the penitentiary of the State of Missouri, upon the writ of habeas corpus issued herein, a'nd being fully advised of and concerning the same, now orders that said motion be, and the same is hereby, overruled. And the court having also examined and considered the petition of said petitioner filed herein and the evidence presented by him, and being fully advised of and concerning the same, and the said petitioner, by attorney, having produced in court and filed the certificate of Brevet Brig. Gen. L. C. Easton, chief quartermaster of the Department of Missouri, certifying that the fine imposed upon said petitioner by a court-martial, under General Orders, Ho. 168, Headquarters Department of the Missouri, dated St. Louis, July 7, 1865, amounting to the sum of $700, has been paid by him, now orders that the said petitioner, Charles D. Colman, be discharged from the custod}^ of the marshal, and that ho be released and discharged from further confinement in the penitentiary of the State of Missouri, under and by virtue of the order, judgment, or sentence of the said court-martial; and further orders that said petitioner pai1" the costs of said petition and the proceedings thereunder, and that the sum of $56.85 be allowed to Horace A. Swift, warden of said peni-tentiaiy, for his actual expenses in obeying the said writ of habeas corpus issued herein as part of such costs, and that a fee bill be issued for the same, and that a certified copy of this order be furnished to the said warden of said penitentiary.”
    Subsequently said Charles D. Colman applied for Executive relief or pardon, and the following is the action taken thereon by President Johnson on March 3,1869, with the later indorse-ments thereon: *
    “EXECUTIVE ORDER.
    “March 3, 1869.
    “Case of Colman, C. D., captain.
    ‘ ‘ Convicted of fraud upon Govt.
    “ Reconi’d for removal of disability.
    “Respectfully referred to Hon. Sec. of War.-
    “Let the disabilities be removed and an honorable discharge granted.
    “Andrew Johnson.”
    [indorsements.]
    “War Department,
    “Adjutant-General’s Office,
    
      “March 13 th, 1869.
    
    “Case of C. D. Colman, capt. and provost-marshal, 1st dist. of Missouri.
    “Respectfully submitted to the Secretary of War for the action of the President.
    “Capt. Colman was dismissed by Gen. Orders, No. 168, Dept. Missouri, July Y, 1865. See order enclosed.
    “Subsequently he brought suit against the Secretary of War and several military officers. The action terminated unfavorably for plaintiff. The report of the Judge-Advocate-General herewith. I recommend that the order of the President (of date March 3d, but not received until March 6th) be not executed.
    “W. T. Sherman, General.
    
    “Approved by the President and Sec’y of War.
    “The order of 3d March will be rescinded.
    “ By order of the Secretary of War.
    “Ed. Sciiriver, In 01.
    
    “Mar. 19, ’69.”
    
      YIII. The money and treasury notes of the value of $30.049 seized, as set forth in finding rv, was duty accounted for as shown in the following report of the Treasury Department:
    “Treasury Department,
    “Office of Auditor for the War Department,
    “ Washington, February <?, 1903.
    
    “The honorable the Attorney-General.
    “ Sir: In reply to your letter of recent date, requesting information relative to the case of Anna M. Colmara, executrix of the estate of Charles D. Colman (late captain and provost-marshal, 1st Missouri district, deceased) m. U. S. — No. 22900, pending in the Court of Claims — I have the honor to inform you that the accounts of Maj. J. A. G. Barker, additional paymaster, settlement No. 2705 of 1872, show that this officer accounted, on February 25, 1865, for $30,049 as having been received from Capt. J. Hamilton, 3d U. S. Arty., and mustering and disbursing officer, U. S. A. Capt. Hamilton in his account current on account of substitutes’ and deserters’ moneys, etc., at St. Louis, Mo., for February 7, 1865, shows that the above-mentioned sum of money was turned over to him bjr Col. J. H. Baker, provost-marshal-general, Department of the Missouri, as moneys of substitutes, deserters, etc., seized from Capt. C. D. Colman, provost-marshal, 1st district Missouri. This money was held by Capt. Colman as belonging to substitutes and deserters.
    “The accounts of the officers showing these transactions do not indicate the character of the currency seized. Maj. Barker turned over $104,945 to Col. N W. Brown, paymaster, U. S. A. (in which sum is included the $30.049 received from Capt. Hamilton as having been seized from Capt. Colman). This money is taken up by Col. Brown and apparently merged into other moneys for which he was accountable to the Government, and appears to have been used in paying off troops during the year 1865.
    “Your letter is herewith returned.
    “Respectfully, F. E. Rittman, Auditor.”
    IX. This case was referred to this court by act approved May 27, 1902.
    
      Mr. John S. Blair for the claimant:
    1. Before March 3,1863, and since August 28, 1866, a provost-marshal has been an officer already in the Army detailed for duties in connection with the safe-keeping of prisoners, and Captain Colman in accepting the appointment of the President took upon himself no responsibilities other than those set forth in the act of 1863, and in lawful regulations made thereunder, and in the Articles of War above mentioned. He was not called upon to give bond or to receive any public moneys except for his own pay and allowances. Being a statutory officer with statutory powers none are to be cast upon him by implication.
    Pie ivas not authorized to receive the $300 draft commutation money provided for in section 13 of the act of March 3, 1863, nor by any regulation of the Provost-Marshal-General or Secretary of War, was he made the depositary of public funds or the conduit for private funds. (See Revised Army Regulations, A. D. 1861, with appendix to June 25, 1863, p. 521, title “Drafting,” and provost-marshal’s report, Serial Kos. 1251,1252, p. 276, doc. 37.) Even the collector of internal revenue designated to receive the $300 could not hpld them, for by joint resolution of December 23, 1863, and January 16, 1861 (13 Stat. L., 100) they were to be paid into the Treasury of the United States. The possession by claimant of this fund was, in February, 1865, peaceful and complete; no order from a military officer to him to turn over his private money or trust funds in his hands could be lawful unless the trust had been imposed upon him by statute or regulation. And even if he obeyed such order while under arrest, rights of ownership, rights of possession, and responsibilities were not changed. Still less could this occur when the possession was changed by military force. In Planters Bank of Tennessee v. TJoiion Bank of Louisiana (16 Wall., 483), it was held that General Butler’s seizure of funds in the custody of the latter did not relieve the bank from its responsibility to the former.
    2. The chimney sweeper’s boy who found a jewel became plaintiff in the great leading case of Armory v. Belamirie, reported in 1 Strange, 504, which-has been recognized as authority as to the right of a possessor of a chattel to recover against any disseizor except the rightful owner. In Webb v. Fox (7 Term Reports, 391) Lawrence, J., in citing it, said:
    “To maintain trover, the plaintiff must have either the absolute or a special property in the goods that are the subject of the action; he need not have both; either the one or the other is sufficient. Absolute pi’operty is, where one having the possession of chattels has also the exclusive right to enjoy them, and which can only be defeated by some act of his own. Special property is where he who has the possession holds them subject to the claims of other persons. There maj’ be special property without possession; or there may be special property arising simply out of a lawful possession, and which ceases when the true owner appears. Such was the case of Armory v. Delamirie (1 Str., 501), where a chimney sweeper’s boy, having found a jewel, carried it to a goldsmith to know what it was, who refused to return it; and it was holden that, though the plaintiff did not, by such finding, acquire an absolute property, yet he had such a property as would enable him to keep it against all but the rightful owner, and consequently that he might maintain trover for it against the goldsmith, who was a wrongdoer. Now that appears to me to go the whole length of deciding this case. Here the plaintiff says that he was possessed of these goods, to which the defendants plead that the plaintiff is a bankrupt, and that all his effects are vested in his assignees; and I can not agree with the plaintiff’s counsel that' the plea should have gone farther and shown that this was not one of the cases in which a bankrupt may have property; the plea states generally that the property was out of the plaintiff. But for the same reason I think it was sufficient for the plaintiff, in his replication, to show a right to the goods, which he has done by alleging that he ‘ became lawfully possessed of them since the bankruptcy, and that he has kept them without anjT claim, interruption, molestation, or denial of the assignees.’ 1 agree with the defendant’s counsel that it is not sufficient to state, in a declaration in trover, that the plaintiff is possessed without adding that the property of the goods is in him; but it was not necessary to repeat in this replication that the property was in the plaintiff, since the replication shows those circumstances, in answer to the plea, from which the law will infer a special property in him — such a property as enables him to maintain trover.”
    In Smith’s Leading Cases, under the title Armory v. Dda-mirie, at page 175, it is said:
    “Moreover, those on whom the possession of chattels personal is cast by the law, by the act of the parties, or the force of circumstances, are chai’ged with the duty of keeping and protecting that which is thus entrusted to their guardianship, and may consequent^ recover for anjr wrong by which it is impaired or injured, in the capacity of trustees, if in no other character.” (See also Vermih/ev. Adams Express Company. 21 Wall., 138.)
    
      
      jMr. Felix Brannigan (with whom was Mr. Assistant Attorney- General Praclt) for the defendants:
    It appears that Captain Colman ivas for some time engaged in procuring or attempting to procure substitutes for persons drafted, or who were liable to be drafted, into the service of the United States, and that this conduct was regarded by the court-martial as a military offense. He was also charged with the embezzlement of $30,000, which it was alleged had been intrusted to him by divers persons, to be paid to substitutes for them. On this charge he was found guilty to the amount of $18,963. The necessary inference from the' claim and the court-martial order is that $18,963 of the money seized in the bank was all the money which was given to Captain Colman by persons liable to draft, to be paid to substitutes, and that -the balance of the money in that package was in part Captain Colman’s own mone}r and in part money belonging to his legal clients.
    If it could be shown what amount of money in said package was Captain Colman’s own money, we would admit the claimant’s right to judgment for that amount, but this is not shown. Counsel for claimant argues that claimant has a right, under the law of bailment, to recover for all the money seized. We may admit that the bank was the bailee of the package seized. If the bank was the claimant, there might be some grounds for its recovery; but, in such case, the bailor might, perhaps, have a remedy against the bailee after such recovery. But it is certain that if, at any time before the act referring the present claim to this court was passed, an action had been brought by Captain Colman, or his proper legal representatives, against the bank, he could not have recovered-under the law of bailment, or other form of action, because the bailee (that is, the bank) was not guilty of any negligence, and had taken as good care of the package as was possible, and surrendered it only because of overpowering military force.
    We can not see that the money was seized by the military authorities by unlawful authority, or that the seizure vested any legal ownership of the money in the United States. The money still remained the money of its original owners, namely, (a) said Captain Colman, of that part of the money wliich was his own property; (5) such part of it as belonged to his clients, and (o) such part as belonged to persons who had put their money in his hands to be paid to substitutes— if any could be obtained and were accepted in the military service of the United States as such substitutes.
    It appears that all of this package of money was appropriated by the United States and was used for the payment of troops during the year 1865. Under these circumstances the true and lawful owners of the money in said package have just and valid claims against the United States, and could enforce their claims in this court were it not for the statute of limitations. The act of Congress under which this suit is brought removes the bar of the statute onty in respect to so much of the money in said package as belonged to the said Capt. Charles D. Colman, as distinguished from the money of his clients and the money of the persons who desired to obtain substitutes in case they7 were drafted.
    In respect to the court-martial order, it does not appear that said Captain Colman ever paid over the $18,963 mentioned in the - sentence of the court-martial, or that that amount was ever satisfied out of any moneys contained in the package seized, or otherwise. We do not claim that this $18,963 is a debt due the United States. On the contrary, we think the proper inference from all the facts is that that amount of money was the total amount included in said package which lawfully belonged to the persons mentioned in the court-martial findings of the specification, fifth charge. In respect to so much of the seized money as belonged to Captain Colman’s clients, the said Captain Colman had no responsibility whatever to them after their money was seized at the bank by the military authorities, nor did he have any responsibility to the owners of the substitute money. He held both classes of money at first as agent or bailee, and took the best care of it that was possible by bailing it to the bank; and neither he nor the bank was guilty of any neglect whatever in regard to such money. Whether the title to the money in the package seized was or was not lawfully changed or vested in the Government is not material; because, in contemplation of law, that amount is a debt due by the United States to the true owners of that money, and the seizure discharged both Captain Colman and the bank from all liability whatsoever in the matter. Therefore there can be no light of recovery on the claim in suit, except for such part of the money as belonged to said Captain Colman as his own personal property and was not held by him as bailee or trustee-ov agent for any purpose.
    
      Hr. Blair in reply:
    1. Court-martial proceedings are not conclusive in the civil courts of the issues passed upon. (Wilkes v. Dmsmcm, 7 How., 89.) An acquittal before a court-martial can not be pleaded in defense of an indictment in a court of law, although the offense charged is substantially the same. (United States v. Cashiel. 1 Hughes, 552, F. C. 14744, 3 Op. At. Gen., 749.)
    2. Wise v. Withers (3 Cranch, 331): The judgment of a court-martial bejmnd its jurisdiction is invalid.
    The court-martial in directing Colman to turn over $18,963 in addition to (1) “forfeiture of all pay and allowances,” (2) to a fine of $700, and (3) to imprisonment for seven months, transcended its powers, and it is competent for this court to so hold. (Barrett v. Hopkins, 7 Fed. Kep., 312, at p. 314.)
    As is said by the Supreme Court in Ex parte Lange (18 Wall., 163) “it by no means follows” that because the court had jurisdiction of the person of the prisoner and of the offense under the statute “any judgment rendered by the court is valid.” Judge Miller gives an illustration very apposite to the present case:
    “ If a court of general jurisdiction should on an indictment for libel render a judgment of death or confiscation of property it would for the same reason be void.”
    ' And also a judgment of attaint confiscating to the State what belongs to the heirs would be void because in excess of the authority of the court and forbidden by the Constitution. And cites the cases of Bigeloio v. Forrest (9 Wall., 339) and Day v. Mieoit, (18 Wall., 156), where the courts had attempted that very thing. '
    We have come into court claiming that the legal title and the right of possession of the Treasury notes valued at $33,000 was in Captain Colman, and we are confronted by the proposition that as to $18,963 the right of possession is notin claimant, because a court-martial, in 1865, sentenced, ordered, and decreed that Captain Colman should pay over this amount to the chief paymaster of the Department. ' It is to be observed that no statute authorized the court-martial to dispose of private funds in the hands of an officer of the Army, no statute made the chief paymaster of the Department the custodian of these funds, and no Federal statute laid down the duty of Captain Colman in the premises. Iiis responsibilities and rights were to be ascertained by the State laws of Missouri, as applied to the facts and the trusts created. The court-martial had no more power to make a new custodian for the funds than had the civil courts to take from the heirs and give to the United States.
    
      Again. The order of the court-martial did not require the $18,963 to be deposited with any designated depository, nor with the Treasury of the United States; and Colman’s failure to comply with the order conferred no right of action or right of counterclaim on the United States.
    3. That the order for payment of the $18,963 was in excess of the powers of the military court was clearly the opinion and the judgment of the Circuit Court of the United States, April 28, 1866, and this court is'estopped to inquire into the soundness of that order of the civil court.
    4. Where there was a legal confiscation in the civil courts of the United States the Supreme Court has held that a pardon restores all rights, unless the proceeds were actually paid into .the hands of an informer or 'into the Treasury of the United States. (Osborn v. The United States, 91 U. S., 474.)
    Executive clemency having been a completed act by Presi: dent Johnson with his own signature, it was incapable of revocation b}^ Inspector-General Schrivor, even if acting by the orders of President Johnson’s successor.
    5. Once jurisdiction is conferred on this court to hear and render judgments, claimant’s rights would not differ at all from those of the State Bank (10 C. Cls. R., 519; 96 U. S., 30); Newton Ban!,'. (16 C. Cls. R., 54); State National Bank (17 C. Cls. R., 329; 114 U. S., 401). In each of those cases the bank had in its vaults money of its own, money borrowed for which it had given its notes, and money of depositors liable to be taken out by them or by others to whom they gave cheeks. No question was made at the trials, either here or in the court above, as to the right to recover on the ground that an undetermined part of the funds belonged to depositors.
    The question was raised in the express company’s case, (21 Wall., 138) and decided in favor of the bailee.
    In Armory v. Delamire (1 Str., 501), the true owner might have recovered from the jeweler, and if he had done so the jeweler’s defense would have been complete. If the United States in the past thirty-eight 3rears had paid any of these depositors there might be ground for the Assistant Attorney-General’s suggestion.
    6. The enabling act is as explicit and ample as the ones conferring jurisdiction on the court for marine torts and on which judgments were based in Walton v. The United States (21 C. Ols. It., 372) and United States v. St. Louis and Mississippi Yalley Transportation Oom^any (33 C. Cls. K., 251; 1S1 U. S., 217).
    7. Captain Colman had in his possession the promises of the United States to pay to bearer $33,000; these promises have never been fulfilled because of wrong done by the officers of the United States, who violently seized these written contracts and turned them into the Treasury. Clearly the obligations of the United States to him .and to his legatee are not less than if the3r were still in her possession or than if they had been destroyed. It would be a novel doctrine that the debtor bjr forcible seizure of his obligations could discharge them.
   Weight, J.,

delivered the opinion of the court:

The effect of the findings of fact by the court discloses, in substance, that claimant’s testator was, June 2,1863, appointed by the President provost-marshal for the First Congressional district of Missouri, with the rank of captain of cavalry. While acting as such provost-marshal the deceased received, from numerous drafted men and from their brokers, various sums of monej'- upon the express trust that when a substitute should be tendered by the man who made the the deposit, and should be accepted and enrolled, the deposit should be paid to the substitute, and if no substitute was accepted the money should be returned to the conscript. These several sums of money were received by Colman without express authority of the Government, and he assumed to act in his individual capacity and responsibility in that regard, and it appears this practice arose at the request or suggestion of the drafted men and their agents. Colman at first declined to receive these deposits, insisting that it was not his official duty- to do so, and it is now contended by his widow that he received them only in his private relation and was accountable only to the persons who deposited the money.

The Secretary of War had, by regulation made June 30, 1863, fixed the sum of $300 as commutation for a draft, but it does not appear that Colman was authorized by that officer to receive such money for procuration of substitutes.

February 10, 1865, the provost-marshal-general sent a detachment of soldiers with a commissioned officer to the bank at St. Louis with orders to seize a package of money there deposited by Colman, which they did, and took it to the provost-marshal-general’s office at St. Louis, who afterwards gave to Colman a receipt for the same as containing $30,049, which sum was duly accounted for by the paymaster to whom it was delivered as merged into other moneys and used in the payment of troops during the year 1865. Charges having-been preferred against Captain Colman, he was, in Mhy, 1865, tried at St. Louis before a general court-martial, duly organized, and convicted of several offenses, they being somewhat varied in. their nature, among which were falsifying his accounts, conduct unbecoming an officer and a gentleman, disobedience to orders, and embezzlement. The charge of embezzlement, of which he was convicted, consisted in the alleged conversion to-his own use of a sum of money deposited with him by drafted men for the purpose of procuring their substitutes in the military service of the United States. The court-martial found the amount of money embezzled of the substitute fund was $18,963. The balance of the money taken is not referred to in the findings of the court-martial, and, so far as it appears, presumptively belonged to Colman, or possibly his clients, he having been a lawyer prior to and at the time of his appointment as provost-marshal.

There is nothing in the evidence, other than the findings of the court-martial, to indicate that the $18,963, or any other part of the money taken, was a substitute fund deposited wiffi Colman. The sentence of the court-martial was, in effect, that the accused be dishonorably dismissed from the service; to forfeit all pay and allowances; to be compelled to turn over to such officer as the general commanding should designate $18,963; to pay a fine of $700 to the United States, and be imprisoned for the period of seven months at such place as the general commanding should designate,'and thereafter until said fine was paid and said sum of money turned over; that the crimes of which the accused was found guilty, his name, place of abode, and punishment be published, after which it should be-deemed scandalous for any officer to associate with him. This finding and sentence were approved bjr the general commanding (Dodge), and the sum mentioned ordered to be paid to the chief paymaster of the department, and the penitentiary at Jeffei'son City, Mo., was designated as the place of imprisonment, where he was confined for the period of seven months, and, April 28, 1866, upon habeas corpus proceedings in the United States Circuit Court for the district of Missouri, upon a finding of payment of the fine before mentioned, was discharged from further imprisonment. Subsequently, March 3,1869, Colman applied to the President for a removal of the disabilities imposed by the sentence of the court-martial, and this was at first granted, but later, Marchl3,1869, upon the recommendation of General Sherman, the order of March 3 was, by the order of the President, rescinded.

It is argued by the claimant that the officer received the substitute money in his private capacity, and that for such reason the authorities of the Government wrongfully deprived him of its possession and it is legally bound to make restitution. If the money had been paid to the officer by the drafted men in reliance upon the officer as a private citizen, we concede that the argument should prevail, but the facts of' the record before us, in the light of the circumstances existing during the time of the war with reference to the enforcement of the draft, can not be considered and given their proper weight and due influence without reaching the irresistible conclusion that but for the official station conferred upon him by authority of the Government, Colman would have received none of the money he later converted to his own use. It is unreasonable to believe that conscripts would have sought out Colman in his private capacity and deposited with him their money with which to procure substitutes, and it is but natural to believe they paid it to him on the faith and confidence of his being the officer of the United States having supervision of the draft, and of his duties that required him to enforce the law in that respect. It is almost impossible for the human mind not to be impressed with the conviction that a drafted person, influenced by the powers and surroundings of a provost-marshal, would not be controlled by a mental coercion to do as these conscripts did, and pay their money to the officer in charge, hoping thereby to gain advantage not to be otherwise attained. Force mayr, we think, be added to this Anew by reference to the provisions of section 13 of the act of March 13, 1863, for enrolling and calling out the national forces, and for other purposes (12 Stat. L., 733), where it is permitted to a drafted person to furnish an acceptable substitute to take his place in the draft, or he may pay" to such person as the Secretary of War may" authorize to receive it, such sum, not exceeding $300, as the Secretary may determine, for the procuration of such substitute, which sum shall be fixed at a uniform rate by a general order made at the time of ordering a draft for any State or Territory; and thereupon such person furnishing the substitute, or paying the moneys, shall be discharged from further liability under the draft.

True, it does not appear that Colman was authorized by" the Secretary of War to receive the money as provided by. the statute referred to, but by the course of conduct adopted by Colman, he having received and paid out more than a million dollars; he gave to himself the appearance of a person having such authority, and thereby tended to mislead persons having-business of that nature. It is, we think, a familiar rule of the law relative to principal and agent that where the latter exceeds the authority" given by the former, giving himself the appearance of representing the principal, the principal may assume or ratify" the acts of the agent, becoming thereby responsible for the same.

In tbe present case, as we have seen, it was lawful to confer upon the officer authority to receive the deposits he did receive, and it was therefore proper to'ratify what he did in that respect without authority. The act of the military authorities in seizing the money, followed by the court-martial, its sentence and execution thereof, was effective as such ratification, and the Government thereafter became, and is 3’et, the trustee of such substitute fund as rightfully as if the statute to which we have referred had been strictly complied with.

There is no legal principle upon which the claimant could recover the money embezzled by1 the officer, and to permit her to do so would be contrary to good morals. The officer obtained the money only upon the faith of the office conferred upon him by the Government. In his relations with others, and in his dealings with persons, so far as they were influenced by the official position of the officer, and in respect to conduct that would or could not be undertaken but for his official station, the Government was morally bound by and ought legally to be responsible for his acts. By this means the officer obtained a sum of money and converted it to his own use, in consequence of which the authorities of the Government seized and took it away, and he was afterwards convicted and sentenced for the offense. This money never belonged to him and does not now, and to permit his personal representatives to recover it under the circumstances would be a shock to morality.

Over and above all this, however, nothing appears in the record to dispute the cognizance of the charges made before the court-martial, and jurisdiction of the person of the officer, and therefore its sentence is valid when questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings. (Keyes v. The United States, 109 U. S., 336.) We are of the opinion the findings and sentence of the court-martial are valid and binding upon Colman and his personal representatives.

It follows from the foregoing views that we are of the opinion the claimant as widow and sole legatee can not recover of the United States the $18,963, substitute fund the court-martial found the officer had embezzled, but the United States having no right or claim to the residue of the money seized, she is entitled to a judgment for 111,086.

Howry, J.,

dissenting:

Reprehensible as Colman’s conduct, was from a military point of view, and questionable as his receipt of the money of the- drafted men to pay to substitutes for them may seem to be, measured by those standards of ethics which properly prevail among men of sensibility, I am unable to see whjr a lawful right should be partly defeated by the application of a rule mistaken for one of morals and specialty framed to meet the exigencies of a particular case. Concurring in the judgment of the court as far as it goes, yet it does not seem to go far enough. The judgment should be for $30,049.

The jurisdictional act directs us to render j udgment for such amount as the court may find due the claimant. The amount due is the sum which the findings disclose was unlawfully taken from Colman’s bailee. The funds were mingled indiscriminately in Colman’s package, and contained money received by him in his business as a lawyer, money which the drafted men had delivered to him for a lawful purpose, and money of his own. Iiow are we to determine the quantum of the beneficial interests, respectively, in the absence of all proof? And how are we to determine what part belonged to the drafted men, if any ?

The proceedings of the court-martial are not competent to establish that $18,963 of the money belonged to the drafted men. The court-martial was without jurisdiction to determine that question. The court itself evidently thought so, and the defendants acquiesced in that view of the matter, else the money, or some of it at least, would have been returned to such of the men as were then at hand.

It was lawful for drafted men to hire substitutes and pajr as much as $300 to such substitutes as the Secretary of War might determine to be acceptable. (12 Stat. L., 733.) It was not unlawful for Colman to receive money outside of his duties as as an officer in aid of this purpose. The practice was not commendable for an officer to engage- in this kind of brokerage, but it was neither a crime nor yet a military offense for a provost-marshal to do so. Such mono\- as the drafted men gave to this provost-marshal was not delivered to him in his official capacity. His appointment as such was under the act of March 3,1863 (12 Stat. L., 732), and Colman took upon himself no responsibilities other than those set forth by the act which created the office.he held and the lawful regulations thereunder, and except such as were imposed by the Articles of War (2 Stat. L., 369). Not being a depositary for public funds nor authorized to receive private funds under anjr statute or regulation, and being a statutory officer with powers defined by statute, no responsibility was to bo cast upon him by implication. As then the officer was not the custodian of any of the money contained in the package in virtue of his commission or in the performance of any duty imposed upon him by law, the court-martial could not lawfully take hold and dispose of the funds. Its proceedings were not conclusive in the civil courts. Acting in excess of authority, the sentence of the court was void upon principles quite familiar. (Wilkes v. Dinsman, 7 How., 123; Wise v. Withers, 3 Cranch, 337; Bigelow v. Forrest, 9 Wall., 339; Day v. Micou, 18 Wall., 156.)

The judgment of the Circuit Court of the United States established the invalidity of the sentence of the court-martial so far as it related to the money alleged to have been embezzled. This judgment, having never been appealed from nor reversed, is conclusive upon the issue as to the officer’s right to have the money returned. If for no other reason, it is conclusive because that part of the senteiice relating to the money was unexecuted at the time the judgment of the Circuit Court released the officer from the imprisonment and the obligation to pay as the mere result of the sentence. The sentence relating to the money was not executed by the retention of the package and converting the proceeds into the Treasury.

The attempted confiscation was illegal, but even if it had been legal and yet incomplete the pardon restored to the accused officer the right to be repossessed of that which had been taken from him. The pardon once effective could not be revoked by the same President, much less could it be by his successor.

The money was unlawfully taken from Colman’s bailee. If he had been guihy of embezzlement, outsiders had no more right to take and cover the amount into the Treasury than a post-office inspector would have to take money from a culprit accused of burglary on the ground that it corresponded in amount with the sum the burglar was accused of stealing. In such a case where the culprit was convicted of theft and the inspector turned the money into the Treasury his right to do so has been denied. (United States v. Ferguson, 64 Fed. Rep., 88; 78 Fed. Rep., 103.)

Plaintiff’s right can not be distinguished from those cases where it appears that a bank had in its vaults money of its own, money borrowed for which it had given notes, and money of depositors liable to be taken out bjr them or bjr others to whom they gave checks. The right to recover was not refused on the ground that an undetermined part of the funds belonged to depositors. (State Bank, 10 C. Cls. R., 519, 96 U. S., 30; Newton Bank, 16 C. Cls. R., 54; State National Bank, 17 C. Cls. R., 329, 114 U. S., 401.)

One wrong'does not justify another. If Colman received the money of the drafted men without applying it to the uses for which he received it, the law of the place furnished ample redress for those wrongfully deprived of.it. A rule that would enable the defendants to seize and appropriate an officer’s money under the circumstances shown can not he sanctioned. - The amount is now in the Public Treasury, whore it does not belong. The title was never divested out of the accused officer by virtue of the seizure.

We do not know whether the accused officer ever attempted to settle with any of his clients. Perhaps he never did and perhaps to actions now brought by them or their representatives (with the restoration of the trust) against his estate the', defense of the statute of limitations may be interposed. Such defense would probably be met by asserting the trust character of the holding. These are questions, however, of no concern. The United States in keeping the excess of the judgment are permitted to perpetuate a greater wrong on the officer than Colman perpetrated upon the men whose money he received. The defendants ought not to be permitted to intimate that the officer’s trust obligations have gone unsettled, as their appropriation of the money probably put it out of Colman’s power to discharge them. This is a matter not in the case.  