
    James O. P. Burnside v. The United States.
    
      On the Proofs.
    
    
      The claimant is authorized to bring out cotton from the insurrectionary States by agreement with a treasury agent, dated 5th December, 1864, under the act regulating the purchase of products of insurrectionary States, approved 2d July, 1864. The regulations of the Treasury Department, required by the statute, are published on the 2ith September; the order of the President relating thereto is issued the same day; the order of the Secretary of War pursuant to the President’s order is issued 6th October; the like order of the Secretary of the Navy is not issued till the 1st December; and it does not reach Commander Macomb, the naval officer commanding the “district of the sounds,’’ until the 7th January, 1865. Bef ore it is received, Commander Macomb seizes the claimant’s cotton at Elizabeth City, and sends it to Newborn, where he receives the order; he releases the cotton and it is forwarded to New York, the claimant assenting. The storage charges at Newbern are made a charge upon the cotton by the treasury agents, and the claimant’s proportionate part is withheld from his share of the proceeds. The price of cotton falls, and, in consequence of the detention, the claimant suffers loss. The claimant noto insists that the seizures were a violation or recession of the contracts, and that he should recover damages on the whole of the proceeds, and not merely his share under the agreement.
    I. The seizure by a naval officer of a quantity of cotton in transitu under a license to bring out products from the insurrectionary States, and in which the government is to share (pursuant to Act 2d July, 1864, 13 Stat. L., p. 377) and the detention thereof by the officer until he receives the general orders of the Secretary of the Navy regulating the traffic, is neither a breach nor a recession of the contract, and does not entitle the claimant to damages nor to the entire proceeds of the cotton. The distinction between this and .Lane’s case, (2 C. Cls. K., p. 184,) is, that here the seizure was not ratified by an executive department, while there the cotton was delivered by the Treasury Department after the fact was disclosed that at the time of capture it was in transitu under a proper treasury license.
    ■II. The omission of the Secretary of the Navy to transmit orders to naval officers is not a ground upon which a suit can be maintained. A person engaging in the traffic of bringing out products of the insurrectionary States under the Act 2d July, 1864, (13 Stat. L., p. 377,) assures such risks as may arise from the ignorance, perverseness, or cupidity of the agents or officers of the government. It is only for the distinctly authorized or adopted acts of its agents that the government can be held liable.
    III. A party bringing out products from the insurrectionary States under a proper treasury license, (pursuant to the Act 2d July, 1864, 13 Stat. L., p. 377,) cannot he made to contribute for the storage of the products when improperly seized and stored by the defendant’s officers against his will. Such storage charges being withheld from the proceeds of the cotton by the agents of the treasury, an action lies to recover them back.
    
      Messrs. Hughes, Denver and Peck for tlie claimant:
    This is an action brought by original petition to recover damages for a breach of an express contract between the claimant and the United States.
    During the latter part of the late rebellion the demand for cotton throughout the civilized world, and especially in the loyal States, had become so great in proportion to the supply that the price was from 10 ,to 15 time§ the actual cost of production; at the same time there was just inside of the rebel military lines an accumulation of several million bales, almost entirely cut off from a market.
    It was-well understood that if any arrangement could be effected by suspending the rigors of war so far as to permit cotton to be received through the lines, great relief would be afforded to our manufacturing interests; and it was perceived at the same time that there was a large margin for profits to be made by those who could buy within the rebel lines and transport their cotton safely to a northern market.
    The United States government had an eye to these profits, and for the purpose of enabling it to participate in them, while securing the other advantage of opening the cotton trade, Congress passed the act of July 2, 1864.
    This act provided, among other things, for the appointment of agents by the Secretary of the Treasury “ to purchase for the United States any products of States declared in insurrection, at such places as shall be agreed on with the seller, not exceeding the market value thereof at the place of delivery nor exceeding three-fourths of the market value in the city of New York at the latest quotation known to agent.”
    The traffic was to be carried on under rules to be prescribed by the Secretary of the Treasury. — 13 Stat. L., p. 376.
    The government, possessing a monopoly or exclusive right, agreed to give those who brought out the cotton three-fourths of what others stood ready to give.
    It presented the ordinary ease of contracts between individuals, where one has an advantage to confer and the other is willing to render an equivalent for conferring it.
    The purchase of cotton by a loyal citizen beyond the lines had been unlawful. The government alone could authorize it to be done,, and the condition for the permission was, that the purchaser must sell his purchase to no one but the government agent, and in order to secure a handsome profit, the agent was forbidden to pay more than three-fourths of the market value of the article.
    
      TTnder this act tbe Secretary of tbe Treasury issued tbe necessary regulations for tbe trade on tbe 24th of September, 1864, which were duly approved by'the President of the United States on tbe same day.
    The President also on that day issued an executive order upon tbe same subject, directing, among other things, that all military and naval officers should grant safe-conduct to persons and property moving under the authority of the said regulations.
    On the 5th of December, 1864, the claimant entered into a contract with H. C. Risley, an agent duly authorized for 'that purpose, to act for the United States, by which he agreed to sell, and said Risley agreed to buy some 10,000 bales of cotton. This contract is in the usual form adopted in such cases. On the 7th of December, 1864, Risley issued to claimant a certificate in the form required by the eighth section of the treasury regulations, and which entitled the holder to a safe-conduct under the third and fifth sections of President Lincoln’s executive order. The claimant thereupon sent an agent to Elizabeth City, North Carolina, within the rebel lines, who purchased for him 41 bales of upland cotton, and paid for the same in greenbacks and North Carolina bank notes. This cotton had all been collected in a warehouse at Elizabeth city, North Carolina, preparatory to shipping it to Mr. Risley, at Norfolk, when on the 2d of January, 1865, the United States steamer Lockwood visited that place and took possession of it. The agent of Mr. Burnside was present and proffered an inspection of his papers, but the commander of the boat refused to recognize them, and claimed that he was acting under tbe orders of Captain Macomb, who commanded that naval district, to seize all cotton at Elizabeth City. The agent was placed under arrest, and the cotton was carried off. It was afterwards delivered to Mr. Heaton, a treasury agent at Newbern, North Carolina, as captured or abandoned property. Mr. Burnside and his agent being in ignorance of the disposition made of the cotton and of the whereabouts of Captain Macomb, applied to General Shepley, commanding at Norfolk, to have him secure the protection provided by the safe-conduct. General Shepley at once wrote to Captain Macomb, but no reply was received. Soon after this the claimant learned that Captain Macomb’s vessel was aground near Roanoke Island, and he went to him at once and, upon presentation of his papers, they were approved by Captain Macomb. Having learned that the treasury agent at Newbern held the cotton, Mr. Burnside next applied to him, and by the orders of Mr. Risley, the cotton was forwarded directly to New York, and sold; but while under detention at Newbern, charges were made against it by the treasury agent to the amount of #1,999 72, which were paid out of the proceeds in New York.
    The cause of this seizure and detention are fully detailed in the testimony of Mr. Burnside, and the official reports of Captain Macomb. The orders under which Captain Macomb was then acting required him to treat this transaction as contraband trade, and rendered the cotton liable to seizure as captured property for that reason, and also from its situation in the enemy’s territory. These orders were binding upon him until he had some official notification of the changes which had occurred.
    The official order of the Secretary of the Navy promulgating the regulations and the orders of the President were issued on the 1st of December, 1864, more than two months after the date of said orders, and were not received by Captain Macomb until the 7th of January, 1865, six days after this seizure was made.
    When advised by Mr. Burnside of his rights in the premises, he at once stated that since the seizure he had received the proper orders and rescinded his action so far as he could.
    The proof shows that this cotton was at Elizabeth City ready for shipment, and would have been shipped on the 2d of January, 1865. That 10 days was the furthest time required to forward it from there to New York. Allowing for its detention for re-shipment at Norfolk, it should have been in New York on the 12th of January ; allowing a still further reasonable time for its classification and sale, it would have been sold in New York on the 16th of January if there had been no illegal interference on the part of the United States. Cotton of this quality was worth at that time in the New York market $1 10 per pound.
    The bulk of this property was sold on the 4th and 6th of February, 1865, at 75¿ cents per pound, there having been a heavy decline in the price between the time when it should have been sold and the time when it was actually sold.
    Mr. Burnside claims that the United States agreed upon its part to grant him a safe-conduct in the transaction of this business, and thus induced him to embark his capital in it; and that it was for this consideration he agreed to give one-fourth of the proceeds of the purchase. That it'is unconscionable and unlawful for the government to withhold the consideration, and at the same time claim the benefits, of the contract. He also insists that, under the terms of the contract, there is no authority or justification for charging the sum of #1,999 72 for expenses incurred at Newbern. The whole transaction, so far as taking the cotton to Newbern is concerned, was against his will and to his injury. It was not done under or in pursuance of the contract, but in direct violation of it.
    The only remaining question is the liability of the United States for the damages which accrued by reason of the seizure and detention of the cotton.
    The rule laid down by the Supreme Court of the United States, (13 Howard, p. 115,) is, that if the officer acts within the limits of his authority he is not liable to the injured party, but in such case the liability is incurred by the government and he is relieved.
    . This court said in the case of William S. Grant, “ whenever the officer is justified the liability of the public is established.” — 1 C. Cls. R., p. 41.
    Captain Macomb acted strictly within the instructions of the Secretary of the Navy. The fault was not with him. The seizure occurred from the failure of the Navy Department to promulgate the President’s order and the regulations of the Treasury Department. These bear date September 24, 1864, more than three months before this seizure occurred.
    The claimant had a right to expect, when he was provided with a safeguard authorized by the act of Congress, by the order of the President, aud by the regulations of the Treasury Department, that the necessary official orders had been given to naval commanders to respect it. This court will be unwilling to hold that the United States could stipulate for and receive the larger share of the profits (viz : one-fourth of the net proceeds) of these purchases, and not assume some obligations. Certainly, one of the plainest of its obligations is that the official orders of the President of the United States shall be promulgated within a reasonable time.
    This is a breach of duty which cannot be charged as a trespass or tort upon any individual officer, but it is one of those obligations necessarily imposed upon the United States as a contracting party, and which it has omitted to perform. The whole transaction was-based upon this executive order.
    The rule with regard to mistakes of this character is clearly stated in Story’s Equity Jurisprudence. “ Cases of surprise mixed up with a mistake of law stand upon a ground peculiar to themselves, and independent of the general doctrine. In such cases the agreements or acts-are unadvised and improvident, and without due deliberation; and therefore they are held invalid upon the common principle adopted by courts of equity, to protect those who are unable to protect themselves, and of whom an undue advantage is taken.
    “ Where the surprise is mutual, there is of course a still stronger ground to interfere; for neither party has intended what has been done. They have misunderstood the effect of their own agreements or acts ; or have presupposed some facts or rights existing, as the basis of their proceedings, which in truth did not exist. Contracts made in mutual error, under such circumstances material to their character and consequences seem upon general principles invalid. Non videntur, qui errant, consentiré, is a rule of the civil law; and it is founded in common sense and common justice. But in its application it is material to distinguish between error in circumstances which do not influence the contract and error in circumstances which induce the contract.”— Story’s Eq. Jur. § 134.
    
      Willan v. Willan, 16 Yes., 72-81; Cowes v. Higginson, Ves. & Beames, 524-7; Ramsden v. Hylton, 2 Ves., 304; Farwell v. Coker, 2 Meriv., 269; 1 Fonblanque’s Eq., B. 1, ch. 2, § 7, p. 114, notes to x; Pothier on Ob., Pt. 1, ch. 1, art. 3, § 1-16; 1 Dorn. Civ. Law, B. 1, tit. § 5, n. 10; 1 Dom. Civ. Law, tit. 18, § 2; Ppffendorf s Law of Nature and Nations, B. 1, ch. 3, § 12 ; Hitchcock v. Giddings, Daniel’s Rep., 1; the case of Allen v. Hammond, 11 Peters Supreme Court R., p. 63, is decisive of this ; see also Burrall v. Jewett, 2 Paige R., 134; Miles v. Stevens, 3 Barr., 21; The Hiram, 1 Wheat., 441.
    The Assistant SolicitoR for the defendants:
    I. The claimant instituted his suit in this court to recover damages resulting from the breach of a contract into which he had entered with H. A. Risley, a treasury agent of the United States, acting under authority of the act of Congress approved' July 2, 1864. He claims damages on account of the wrongful seizure and detention of the cotton he had contracted to deliver to the United States under his contract with said Risley; he claims on this account the sum of $6,820 47. By his amended petition the claimant seeks to have the contract into which he entered with said Risley declared void, and to recover the net proceeds of said cotton, under the act of Congress approved March 12th, 1863.
    The record, shows the following facts :
    1. That on the 5th day of December a contract was entered into between the claimant and said Risley, acting on behalf of the Treasury Department of the United States, for the purchase from the claimant of certain quantities of cotton, tar, rosin, and tobacco, specified in- said contract.
    2. That, in the execution of said contract, the claimant collected and had in his possession at .Elizabeth City, North Carolina, 41 bales of cotton, which were seized, by a steamer belonging to the United States navy, previous to the delivery thereof to the agent of the United States authorized by said contract to receive it.
    3. The reasons for the seizure and destruction of the claimant’s cotton is thus detailed by him in his testimony in this case. He says :
    “ My agent had collected the cotton at a warehouse in Elizabeth City, on the wharf, and was intending to ship it on the 2d day of January, 1865 ; but, on the first day of January, 1865, one of the vessels of Commander Macomb, who commanded the district of the North Atlantic squadron, seized the 41 one bales and carried them off.
    
      “ The squadron was then in Albemarle sound cruising after enemy’s property. My cotton was seized in the warehouse by the steamer Lockwood. I have forgotten the name of her commander. Mr. Harney wanted them to examine the papers I have here, but the commander of the vessel would not refer to them at all. He said he had received no orders through his commander, and that the commander of the squadron had received no such instructions as we showed from the Departments of War, the Navy, and the Treasury, and that till he had he would not obey them. They must first come in the regular channels. The instructions; with the orders relating to trade regulations under the act of July, 1860, were printed — the executive orders of Mr. Lincoln and Mr. Fessenden, of the Secretaries of War and of the Navy, in relation to this insurrectionary trade, —but they would not recognise my copies, as they had not received them through the regular channels.” — Claimant’s record, pp. 15, 16.
    Commander Macomb, in his last letter to the Navy Department, dated January 7th, 1865, states that he only that day received the executive orders, which had been issued for the purpose of giving protection to contracts made under the provisions of the act of Congress, of July 2, 1865.
    II. The claimant’s right to recover here depends ujDon the decision by the court in his favor of the following propositions :
    1. That the United States are liable to the claimant, because the Secretary of the Navy neglected or failed to transmit to Commander Macomb the order issued by the President, of the 24th day of September, 1864, by which safe-conduct and protection was granted to persons and property acting under the regulations of the Treasury Department issued in pursuance of said act of Congress.
    2. That because the claimant entered into this contract under the belief that the orders of the President in regal'd to the contracts authorized by said act of Congress had been properly promulgated to the subordinate military and naval officers of the United States, and such not being actually the fact, there was such a mutual mistake of facts between the parties to said contract as will authorize the court to set it aside and restore to the claimant all the proceeds of the cotton he had purchased under said contract.
    It is supposed that the case of Lane v. The United States (2 0. 01s. R., p. 184) affords a precedent for this case, and- is decisive of it. The difference between that case and this is very plain.
    In that case the seizure and detention of the claimant’s vessel and cargo occurred subsequent to the time Commander Macomb had received the executive order of September 24th, 1864. Here the seizure occurred previotis to the receipt by Commander Macomb of those orders, and so soon as he was informed of their existence he released the property he had erroneously seized.
    In that case the seizure was the result of misapprehension on the part' of Commander Macomb.
    In this case the seizure resulted from the neglect of the Secretary of the Navy to transmit to Commander Macomb the executive orders of September 24th, 1864, by which the claimant would have been protected in the execution of his contract. In that case the vessel was in for adjudication in the prize courts, and thus the act of seizure ratified and confirmed by the United States.
    Here the lightfulness of the seizure was disclaimed by the officer who made it and the property released, and the government dealt with the claimant as if there had been a complete performance of the contract by delivery at the place specified in the contract.
    It is submitted, therefore, that the above-named case, for these material differences of fact, cannot be regarded as authority for this case.
    To hold that the government is liable for the neglect of the Secretary of the Navy to transmit the executive orders, by which the claimant would have been protected, would be in violation of that well-settled rule of law which asserts the proposition that the government is not liable for the negligence or misfeasance of its agents. The rule upon this subject is well stated in Story on Agency, as follows:
    
      He says : “It is plain that the government itself is not responsible for the misfeasance, or wrongs, or negligence, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, -which would be subversive of the public interests ; and indeed laches are never imputable to the government. — Story on Agency, 1st edition, sec.-319.
    • The claimant cannot recover upon the case made by his amended petition, because the court has not the power to reform or modify a contract into which the citizen may have entered with the government. It is not invested with the extended powers of a court of équity. If it were, there is no case made in this record which would justify the exercise of such powers. Here the contract has been executed, and the claimant has received all that the contract provid ed for him. If it were possible to place the parties to this contract in the same position they were in at the time the contract was executed, then the application for relief from it, on account of mutual mistake of fact, (if the court had jurisdiction for that purpose,) might be regarded with some degree of favor. It would be an anomalous proceeding for a court to hold a contract void because entered into under a mutual mistake of fact where the contract had been completed, and .each of the parties had received their full measure of benefit under it, according to its provisions. Tet that is the assumption which is presented to the court by the case made by the amended petition. There is another view of this case. If the court shall hold that this contract was void because it was entered into under mutual mistake, then it results that the claimant’s title to the cotton he had in possession was void, and rightly captured by the naval authorities of the United States. It was only under the provisions of the act of July 2,1864, that this contract was authorized. If the contract was void, then the purchase by the claimant of property held in a State declared to he in insurrection was prohibited by the act of July 13, 1861. That act prohibited all commercial intercourse between the citizens of the loyal and rebel States. This court has hut followed the long established rules of law in holding as it did, in the case of Filor et al. v. The United States, decided at this term, that contracts between those who are declared to be enemies are made void by the statute, as well as by the public law.
   Casey, C. J.,

delivered the opinion of the court:

This case arises under the provisions of the act of Congress approved July 2, 18C4, entitled “ An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States,” &c. And in pursuance of the regulations of the Secretary of the Treasury and the orders of the President under said act.

On the 5th of December, 1864, H. A. Risley, an agent of the Treasury Department, at Norfolk, Virginia, for the purchase of the products of insurrectionary States, entered into the following contract with the claimant:

“Memorandum of agreement made December 5, 1864, between H. A. Sisley, agent authorized to purchase for the United States products of States declared in insurrection, of one part, and James O. P. Burnside, of the other part.
“ The said Burnside agrees to sell to said Risley, agent as aforesaid, and to deliver to him at Norfolk, and Beaufort, North Carolina, 10,000 bales of cotton, 5,000 barrels of tar, 5,000 barrels of rosin, 50,000 pounds of tobacco, products of the States of Virginia and North Carolina ; and the said Risley agrees to purchase said products on the following terms and conditions : ■
“ The said products to be sold in New York or Baltimore, by or under the direction of said Risley, on the same conditions as other sales of like public property are made, all expenses, costs, and charges connected with the purchase, storage, transportation and sale of the same, together with the internal revenue tax and permit fees prescribed by regulations, to be first paid, and the net proceeds over and above such expenses, costs, charges, taxes and fees to be disposed of as follows :
“ II. One-fourth part thereof to be retained for the United States, and three-fourths parts to be paid to the said Burnside or his legal representatives.
And it is further agreed between the parties that all cotton transported under this contract shall be consigned to said Risley, agent as aforesaid, and shall be shipped on a government transport, or if not so shipped, shall be in immediate charge of an agent to be appointed by said Risley, whose compensation and expenses shall be paid by said Burnside.
“Nothing in this contract contained shall be construed as incurring any liability on behalf of the United States.
“ H. A. Risley,
Superintending Special Agent, Sfc., authorized to purchase products, Sfc. “ Jas. O. P. Burnside.”

On the 8th of December Eisley gave the claimant a certificate of contract, and requested for him safe-conduct according to the treasury regulations and the Executive orders issued thereon.

Under this contract the claimant purchased, at or near Elizabeth City, in December, 1864, and the early part of January, 1865, two different lots of cotton. The first lot consisted of 51 bales. It was laden upon a schooner and started for Norfolk, but, under orders from General Grant prohibiting vessels coming in or going out at that time, .the vessel returned to Elizabeth City, and remained there several weeks before such orders were revoked. The cotton was then shipped to Norfolk to the agent of the treasury, and by him sent to New York, where it was sold, and after deducting the expenses the claimant’s portion was paid over to him 'by Mr. Eisley. Nothing is claimed in respect of this cotton.

The agent of the claimant purchased another lot of 41 bales, and had it stored at Elizabeth City, and ready to ship to Norfolk and New York. While it was in the warehouse at that place the United States steamer Lockwood visited that town and seized the cotton, under the orders of Commander Macomb, of the navy, commanding the District of the Sounds. The cotton was taken to Newbern, North Carolina, and there delivered to Mr. Heaton, the treasury agent at that point, as captured and abandoned property.

The regulations of the Treasury Department, in reference to the purchase of products of insurrectionary States, under the act of July 2, 1864, were published on the 24th of September following. On the same day they were approved by the President of the United States, in an Executive order issued, in which the Secretary of War and the Secretary of the Navy are directed to issue such orders and give such instructions to the army and navy as will insure the observance of the regulations and protection to persons lawfully engaged in and pursuing such trade in accordance with law and the regulations.

The Secretary of War, by General Orders No. 285, dated October 6, 1S64, directed all military officers to respect such permits and assist the agents of the Treasury Department in carrying them out.

No order upon the subject was issued by the Secretary of the Navy pntil December 1, 1864. Then, by General Order No. 42, of that date, the attention of commanding officers of squadrons, flotillas, and vessels of the navy employed on blockade duty, or in the Mississippi river, or other inland waters in the vicinity of the insurrectionary States, is required to the Executive order, &c., of September 24, 1864, and ordering them to adopt snch measures as should be necessary to insure the strict observance of the orders by those under their command.

These orders were not received.by Commander Macomb until the 7th January, 1865, and until after the 41 bales cotton were seized and sent to Newbern. After the receipt of the orders through the regular naval authorities, upon application of the claimant, Commander Macomb indorsed his papers; and under orders from Mr. Eisley the cotton was shipped direct from Newbern to New York in the latter part of January, 1865, and was sold about the 5th or 6th of February following for the sum of 75¿ cents per pound.

The claimant alleges that if his cotton had not been seized, and, thereby detained by the acts of the officers of the United States, in violation of the terms of the agreement and his safe-conduct, it would have arrived in New York about the 10th or 12th of January, and, making reasonable allowances, would have been sold about the 15th or 16th of that month, when cotton was much higher, and rated at from $1 08 to $1 10 per pound. In making the division of the money after the sale the United States deducted $1,999 72 as charges upon the cotton at Newbern.

The claimant assumes—

1. That the seizure by the navy and detention of his cotton was a breach of the contract on the part of the United States, and that for such Jn'each he is entitled to recover in damages three-fourths of the increased price it would have brought if he had been permitted to ship the same at the time; and also the increased expenses to which it was subjected by such seizure and detention.'

2. That such violation of the contract operated as a rescisión of it, and entitled him to the whole proceeds of the property, irrespective of the agreement.

3. That it having been seized as captured and abandoned property, under the act of 12th of March, 1863, he is entitled to the net proceeds of the property, without deducting the 25 per cent, for the United States, stipulated for in the contract between himself and Eisley.

The case of Lane v. The United States (2 C. Cls., p. 184) has been pressed upon our attention as ruling this case. It is claimed that the principle decided there will embrace the case in hand. We do not think so. So far as the evidence goes it does not appear that Commander Macomb, or any other naval officer, ever made any report of this specific capture, and the time, place, &e., of doing so to the department. The evidence does not show that it was in any way brought under review by tbe executive authoiities. There is nothing here upon which a ratification or adoption of the act of seizure can be predicated.

The officers who made the seizure, when they discovered the mistake, rectified it themselves and delivered up the property. The omission of the Secretary of the Navy to have the orders transmitted to the officers of the fleet’s flotillas at an earlier day is not a ground upon which the suit can be maintained. Every person engaging in such a trade, attended with so many hazards and vicissitudes, expects, for the large gains success brings, to assume all such as arise from the ignorance, perverseness, or cupidity of the agents and officers of the government he has to encounter in the progress of the adventure. It is only for the clear, distinct, authorized, or adopted acts of the government itself that it is to respond in damages.

It is not correct to say that where an individual has been injured by the acts of a public officer, either the officer or the government is liable to make reparation. On the contrary, we distinctly held in the Lane case that the naval forces patrolling- those waters had the right to seize and detain vessels engaged in this trade for such reasonable time as was necessary to assure the officers of the genuineness of the vessel’s papers, and of the right to trade with the enemy. And for such action neither the government nor the officer would be liable. This seizure appears to have been made in good faith, and in pursuance of orders previously received, which had not been either revoked or superseded by any official notification. The officer therefore could not be liable, as he was acting in the line of his duty, as instructed at the time; nor would the government be held responsible for the laches, omission, or accident, whichever it may have been, by which the President’s orders had failed to reach the naval officers in that region in due time.

Nor did it have the effect of annulling the contract. Both parties subsequently treated the contract as still in existence, and unaffected b'y anything which occurred. Both acquiesced in having the cotton sent to New York and there sold, according to the stipulations of the agreement. All the proceedings since the delivery of it have been founded on the contract; and we cannot now say that it was abrogated. This also disposes of the question as to whether it comes under the act of March 12,1863, relating to captured and abandoned property. We are clear it does not. It is not the net proceeds that the claimant was entitled to, but his proportion of the price, as fixed and settled by the contract, after deducting all proper and necessary charges.

And here, we think, is the only ground of claim shown by the plaintiff in this case: The claimant’s property, against his consent, is taken and carried to a distant place. There it is put into the hands of a government officer, different from the place and person to whom it was to be delivered, by the contract. It was taken away by the officers of the United States, on their own ship; it was left and stored with their own officers. It turned out that all this was contrary to the contract, and the property is given up, to be disposed of under that contract. In the meantime it is burdened with an enormous expense for storage, fees, or charges, which are not specified, except in the gross sum of $1,999 72. These charges are deducted from the gross proceeds, and in the division of the remainder three-fourths of their amount falls upon the claimant. This is a wrong done to him, and in violation of the agreement. That made provision what expenses should be deducted. When the United States undertook to seize it as captured and abandoned property, and afterwards delivered it up under the contract, the expenses incurred during the seizure and detention are not to be thrown upon the claimant.

We therefore find for the claimant in the sum of fourteen hundred and ninety-nine dollars and seventy-nine conts ($1,499 79,) and for this amount a judgment will be entered in his favor.  