
    Josiah Winchester, executor of Jenkins v. The United States.
    
      On the Proofs.
    
    
      Cotton is seised in Mississippi by the Navy for purposes of naval defense in February, 1863. The naval officer into whose custody it ultimately comes turns it over to a marshal and lodges an information against it with a district attorney. It is libeled and condemned, half of the proceeds being decreed to the officer as informer and half paid into the Treasury. The officer turns over his half to Admiral Porter, who deposits it with a eourtof admiralty and institutes prize proceedings against it. By that court it is ordered to be deposited with the assistant treaswei' in Washington, and wider subsequent deorce is paid into the Treasury and distributed in prize. The claimant now brings his suit under the Abandoned or Captured Property Act to recover the proceeds of the cotton, including the moiety distributed among the captors.
    
    I.Courts do not favor repeals of statutes by implication. A subsequent statute may be affirmative, cumulative, auxiliary, without there being a repugnancy between the new law and the old. Especially a series of statutes on a subject will not be deemed repealed unless the subsequent statute is entirely inconsistent with the former, or revises the whole subject-matter, or is evidently intended as a sub- ' stitute.
    II.The purpose of the Confiscation Actj 17th July, 1862 (12 Stat. L., 589) was that property of disloyal persons should be seized and sold through the instrumentality of the courts and the proceeds pass into the Treasury.
    III.The puipose of the Abandoned or Captured Property Act (12 Stat. L., 820) was to secure the seizure of property of loyal as well as disloyal persons in enemy’s country, and to create a new channel whereby the proceeds might reach the Treasury.
    
      IV.There is no such repugnancy between the Confiscation Aot and the Abandoned or Captured Property Act as to force a court to the irresistible conclusion that the former is necessarily repealed by the latter. The different characters and purposes of the two statutes pointed out, and the decisions affecting them reviewed.
    V.Where cotton was seized before the enactment of the Abandoned or Captured Property Aot for purposes of naval defence, but after the passage of that act was ordered by the Secretary of the Navy to be held under its provisions, a decree of a district court condemning it and distributing the proceeds was void, and the owner is entitled to judgment for the proceeds in the Treasury.
    VI.A court of admiralty is without jurisdiction to distribute in prize a moiety previously awarded to a naval officer as informer by a district court in proceedings for the confiscation of enemy’s property; nor could the court acquire jurisdiction by the officer’s surrendering to it the money for the purpose of having it thus distributed.
    VII.Confiscation is the act of the sovereign against a rebellious subject; condemnation as prize is the act of a belligerent against another belligerent. The former may be effected by such means as the sovereign through legal channels may please to adopt; the latter can be made only in accordance with principles recognized in the common jurisprudence of the world. Both are in rent; but confiscation recognizes the title of the original owner, while in prize the tenure of the property is qualified, provisional, and destitute of absolute ownership.
    VIII.Consent will not confer on a district court sitting in admiralty a jurisdiction not given by statute, especially where the rights of third parties are affected.
    IX.No court of the United States is empowered to decree final distribution in prize except the court which first acquires jurisdiction over the res, or its representative proceeds.
    X.Where the proceedings of a court are void on their face, they afford no protection to an innocent depositary without hire, who pays orrt money on the faith of them to a party not entitled to receive it.
    XI.If the proceeds of abandoned or captured property actually reached the Treasury, it constitutes no defense for the Government to show that a moiety of the proceeds was deposited under an order of a court of admiralty and subsequently paid out and distributed as prize money under a decree of the same court. The Government is liable for the proceeds so paid out as well as for the proceeds remaining in the Treasury.
    
      
      The Reporters’ statement of the case:
    This case was immediately taken to the Supreme Court, where the judgment was affirmed. (See post, .) On account of the intricacy and obscurity of previous judicial proceedings and of the novelty and importance of the questions involved, the findings are given in full:
    I. The claimant is sole surviving executor of the will of John C. Jenkins, late of Adams County, in the State of Mississippi, duly approved and allowed in the probate court of said county, upon which letters testamentary were issued October 23,1855, the said Jenkins having died before that date, leaving a plantation owned by him in the county of Wilkinson, in said State, with directions in said will for the cultivation of the same by the representatives of his estate for the benefit of his children.
    II. On the 18th day of February, 1863,. there was on said plantation, belonging to the estate of said deceased, and raised thereon, according to the provisions of the will, a quantity of cotton, of which 168 bales were captured by the naval forces of the ‘United States under command of Admiral Porter, and the following receipt given therefor:
    “ IT. S. St’s Era No. 5, Wilkinson Co., Miss., “Plantation J. 0. Jenkins’ Heirs,
    
      “Feb. 18, 1863.
    “ Seized by the order of Col. Charles Rivers. Ellet, comd’g Miss. River ram fleet, one hundred and sixty-eight bales of cotton, for the use of the United States Government, belonging to the heirs of the estate of J. C. Jenkins, dec’d.
    “ASGILL CONNER,
    “ Ga/pt. Go. K, 18th IlVs Volunteers.”
    III. Said cotton, so captured and seized, was taken on board of a Government steamer, the New Era No. 5, to Johnson’s Landing, where it was unladen and hauled to Milliken’s Bend, on the Mississippi River, and there, with other cotton, making a lot of 258 bales and one bag, was shipped on board of the steamer Rowena, about the last of March or first of April, 1863, and sent to Cairo, Ill., by order of Admiral Porter to be turned over to the marshal of that district, as set forth in Captain Pennock’s information. The cotton arrived at Cairo April 7, was received there April 8, by Oapt. A. M. Pennock, of the Navy, commandant of the naval station at that place, acting under Admiral Porter, and by said Pennock turned over to the United States marshal April 9,1863.
    IV. Thereafter such proceedings were had respecting said cotton as appear by tbe following duly certified copy of tbe records of tbe court therein mentioned:
    “In tbe district court of tbe United States for tbe southern district of Illinois.
    “The United States, on relation or") ' A. M. Pennock, as informer, I v. “Two Hundred and Fiety-eight Bales I and One Bag of Cotton. j
    “United States oe America,
    “ Southern District of Illinois, ss:
    
    “Pleas in tbe district court of tbe United States of America for tbe southern district of Illinois, begun and held in tbe city of Springfield, in said district, before the honorable Samuel H. Treat, district judge, .Wednesday, tbe fourth day of November, in tbe year of our Lord one thousand eight hundred and sixty-three, and of tbe Independence of tbe United States tbe eighty-eighth.
    “The United States, ex rel. A. M. 1 Pennock, I v. “ Two Hundred and Fiety-eight Bales | and One Bag Cotton. 3
    Libel in forfeiture.
    “Be it remembered that heretofore, to wit, on tbe seventeenth day of April, in tbe year of our Lord one thousand eight hundred and sixty-three, came Lawrence Weldon, attorney of the United States for the southern district of Illinois, and filed in the office of the clerk of the district court of the United States for said district the information of A. M. Pennock, fleet-captain, &<;., and also a libel in behalf óf the United States and said A. M. Pennock against two hundred and fifty-eight bales and one bag of cotton, which said information and libel are in the words and figures following, to wit:
    “ Information.
    
    “To L. Weldon,
    “Z7. 8. Affiy for the Southern District of Illinois:
    
    “Sir: I hereby file information against the following prop--erty, to wit: (258) two hundred and fifty-eight bales and (1) one bag cotton, (130) one hundred and thirty bales of which was seized by order of Admiral Porter from Mrs. Twitty, at Wilson. Mitchell’s Landing, Miss’ippi Biver, by the U. S. gunboat G-en’l Bragg, and the balance was sent from the Yazoo Biver by Admiral Porter as prize-cotton, to be turned over to the U. S.. marshal and sold for the use of the Government of the United States, the whole being seized as being the property of rebels.
    “A. M. PENNOCK,
    
      “Fleet Capt. & Comm’dH of Station. (iTJ. S. Naval Station,
    
      “Cairo, Ills., April 9th, 1863. '
    “ Filed April 17, 1863.
    
      “Libel.
    
    
      “ United States oe America, ■
    
      “Southern District of Illinois :
    
    
      “ District court. ,
    “ To the Hon. Samuel H. Treat,
    
      “Judge of said Court:
    
    “The libel of information of Lawrence Weldon, att’y of the U. S. of said district, who, being here in his own proper person, prosecutes in the name and behalf of the United States as well as A. M. Pennock, would give your honor to understand and be informed that he, the said A. M. Pennock, seized the following property, to wit: Two hundred and fifty-eight (258) bales and one bag cotton; said seizure was made on or about, the day of , A. D. , by order of Admiral Porter, at Wilson Mitchell’s Landing, on the Missi’ppi River, by the U. S. gunboat Gen’l Bragg, the said Missi’ppi River being a public water of the United States, navigable to the sea by vessels of ten or more tons burden.
    “Said seizure was made for the reasons following, to wit:
    “That; the said cotton was purchased in a district or part of the United States which before said purchase had been declared to be under insurrectionary control by the President of the United States, and was proceeding from said district or part of the United States to another district or part of the United States which had not been so declared to be under insurrec-tionary control, contrary to the act of July 13th, 1861, and the proclamation of the President- of August 16th, 1861.
    “That all and singular the premises are true and within the admiralty jurisdiction of this court; that by reason of said premises the said two hundred- and fiity-eiglit bales and one bag cotton became and are forfeited to the United States.
    “ Wherefore the said attorney, on behalf of the United States, prays the usual process and monition, according to law and the jurisdiction of this honorable court in such case, may issue against said two hundred and fifty-eight bales and one bag cotton, and that the same may be condemned and sold to answer the prayer of this information, and for such other order as may be required.
    “LAWRENCE WELDON,
    
      “Dis’t Attorney.
    
    2 0 0
    
      “ The leave of court being first had, the said libellant further charges that the said property belongs to a person now in armed rebellion against the Government of the United States!
    “L. WELDOU, Dis’t Att’y.
    
    “Filed April 17,18G3.
    “ Monition.
    
    “ Whereupon a writ of monition was issued against the said two hundred and fifty-eight bales and one bag cotton, directed to the marshal of the southern district of Illinois to execute, which said writ, together with the return of the marshal thereto and the certificate of publication of the libel and seizure of said cotton, are in the words and figures following, to wit:
    “United States oe Asierioa,
    
      " Southern District of Illinois, ss:
    
    “ The United States of America to the marshal of the southern district of Illinois, greeting:
    “ Whereas a libel has been filed in the district court of the United States in and for the southern district of Illinois, on the 17th day of April, in the year of our Lord one thousand eight hundred and sixty-three, by Lawrence Weldon, att’y of the United States, and A. M. Pennock, against two hundred and fifty-eight bales and one bag of cotton, for reasons and causes in said libel mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons having or pretending to have any right, title, or interest therein may be cited to appear and answer all and singular the matters in said libel articulately propounded, and that this court would be pleased to pronounce for the sum of the damages ealleged in said libel, besides costs of suit:
    “You are therefore commanded to attach the said 258 bales and one bag of cotton, and to detain the same in your custody until the further order of this court respecting the same, and to . give notice by publication in the Illinois State Register for fourteen days previous to the day of trial, and by notice posted up in the most public manner for the space of fourteen days, at or near the jdace of trial of such seizure and libel, to all persons claiming the said 258 bales and one bag of cotton, or knowing or having anything to say why this court should not pronounce against the same, according to the prayer of the said libel, and that they be and appear before the said court, to be held in and for the southern district of Illinois, at the United States court-room in the city of Springfield, in said district, on the first Monday in May next, if that be a day of jurisdiction; if not, then on the first day of jurisdiction thereafter, at ten o’clock in the forenoon of that day, then and there to interpose a claim of the same, and to make their allegations in that behalf.
    
      “And what you shall have done in the premises do yon then and there make return, together with this writ. •
    “Witness the honorable Samuel H. Treat, judge of said court,, this 17th day of April, in the year of our Lord one thousand eight hundred and sixty-three, and of our Independence the eighty-seventh year.
    [seat.] “ S. A. CORNEAD, Cleric,.
    
    “(Endorsed:)
    
      “Beturn.
    
    “By virtue of this writ I have this day attached the within-described cotton, and made proclamation of the same, on this 17th day of April, 1863. And I do further request of the honorable court that, as the said cotton is perishable and liable to-destruction, that order of sale be made for the disposition of said property pending the suit.
    “D. L. PHILLIPS,
    “ U. 8. Marshal_
    “(Endorsed:) Filed this 1st day of June, A. D. 1863.
    “ Notice.
    
    “Dotted States oe Aiuekica,
    
      “Soicthern District of Illinois, ss :
    
    “Whereas on the 17th day of April, A. D. 1863, Lawrence Weldon, Dnited States district attorney, filed a libel in the district court of the Dnited States for the southern district of Illinois against two hundred and fifty-eight bales and one bag of cotton, on information of A. M. Pennock, in a cause of condemnation and forfeiture;
    “And whereas, by virtue of process in due form of law to me directed, returnable on the first Monday in May next, I have seized upon and taken the said two hundred and fifty-eight bales and one bag of cotton, and have the same in my custody:
    “ Notice is hereby given that a district court of the Dnited States will be held at the Dnited States court-room in the city of Springfield, on the first Monday of May next, for the trial of said premises, and the owner or owners, and all persons wlu> have or. claim any interest, are hereby cited to be and appear at the time and place aforesaid, to show cause, if any they have,, why a final decree should not pass as prayed.
    “D. L. PHILLIPS,
    “ U. 8. MwshaL
    
    “Spkingeield, III., April 17th, 1863.
    
      “Publishers certificate.
    
    “ The undersigned, publisher of the Illinois State Register, a?, newspaper published at Springfield, Illinois, does hereby certify •that tbe annexed notice was published in said paper for fourteen ■days successively, tbe first publication thereof having been made on the 18th day of April, A. D. 1863, and the last on the 4th day of May, A. D. 1863.
    “O. H. LANPHIEB,
    
      11 Published' Illinois State Register.
    
    “And afterwards, to wit, on the same day and year aforesaid, at a special term of said court, the following proceedings were had in said court and entered of record, to wit:
    “The United States, on the relation! of A. M. Pennock, as informer, ] vs. Two Hundred and Fiety-eig-ht Bales | and One Bag Cotton. j
    J> In admiralty.
    “This day came the United States, by the district attorney, .and the marshal having made return to the monition ‘ that he has seized the said two hundred and fifty-eight bales and one Bag cotton, and that it will be for the interest of all concerned that said property should at once be sold:
    “ It is therefore ordered by the court, on the motion of the district attorney, that the said property be sold at public vendue for cash, and that the proceeds be brought into court to abide ■.the result of this proceeding.
    “It is further ordered that the marshal give reasonable notice of such sale in the newspaper designated by the court, and also in a newspaper published in each of the cities of -Chicago and Saint Louis.
    ■“ On motion of the dis’t att’y, it is further ordered, that he .have leave to amend the libel; which is accordingly done.
    “And afterwards, to wit, on the twentieth day of April, in the year aforesaid, a writ of venditioni exponas was issued .against said two hundred and fifty-eight bales and one bag of cotton, directed to the marshal of the southern district of Illinois to execute, which said writ, together with the return of the marshal thereto, is in the words and figures following, to wit:
    ■•“The United States oe Asierica,
    “ Southern District of Illinois, ss :
    
    '“ The United States of America to the marshal of the southern district of Illinois, greeting:
    “Whereas a libel was filed in the district court of the United States for the southern district of Illinois on the 17th day of April, in the year of our Lord one thousand eight hundred and sixty-three, by Lawrence Weldon, attorney of the United States, in the name and behalf of the United States, as of A. M. Pen-nock, against two hundred and flfty-eigbt bales and one bag of cotton, praying that the same may be condemned and sold for the causes in said libel alleged;
    “And whereas the said 258 bales and one bag of cotton has' been attached by process issued out of the said district court in pursuance of the said libel, and is now in custody by virtue thereof; and such proceedings have been thereupon had that by the order pendente lite of the said court in this cause, made and pronounced on the 17th day of April, in the year of our Lord one thousand eight hundred and sixty-three, the said 258 bales and one bag of cotton was ordered to be sold by yoii, the said marshal, after giving 20 days’ notice of such sale according to law.
    “Therefore you, the said marshal, are hereby commanded to cause said 258 bales and one bag of cotton so ordered to be sold, be sold in manner aud form upon the notice and at the time and place by law required. And that you have the money arising froimsach sale in said court, at Springfield, on the first Monday of June, eighteen hundred and sixty-three,, and that you then pay the same to the clerk of the court; and have you also then and there this writ.
    “ Witness the honorable Samuel H. Treat, judge of said court, this 20th day of April, in the year of our Lord one thousand eight hundred and sixty-three, and of our Independence the 87th. year.
    [seal.] “S. A. COBNEAU, Cleric.
    
    “L. Weldon, Proctor.
    
    “(Endorsed:)
    “ Return.
    
    “By virtue of this writ, I sold, on the 15th day of May, 1863, the within-described property, for the sum of forty-one thousand six hundred forty-nine and dollars.
    “D. L. PHILLIPS,
    “ TJ. 8. Marshal.
    
    “ Per E. H. FINCH, Deputy.
    
    “ Paid to W. P. Halliday, by order of court, the value of 82. bales, being the sum of $13,432.23c.
    “D. L. PHILLIPS,
    « TJ. 8. Marshal.
    
    “ (Endorsed:) Filed this 23d day of June, A. D. 1863. --
    -, clerk.
    “ And afterwards, to wit, on Monday, the eighth day of June, at the June term of said court, in the year aforesaid, the following further proceedings were had in said court and entered of record, to wit:
    “ United States, on the relation oe A. M. Pennock, &c., vs. . “258 Bales and 1 Bag oe Cotton, j
    In admiralty.
    “ The marshal having returned on the monition issued in this cause that he had attached the said two hundred and fifty bales and one bag of cotton, and had given due notice to all persons claiming the same that the court would on this day proceed to the trial and condemnation thereof should no claim be interposed therefor:
    “ This day came the libellants, by their advocate, L. Weldon, -esq., and, upon their motion, proclamation was made for all persons interested in the said two hundred and fifty-eight bales and one bag of cotton to appear and interpose their claim therefor. And no person appearing to answer said motion, it is ordered, adjudged, and decreed by the court that the default of all persons be, and the same are hereby, accordingly hereby entered, and that the allegations of the libel be taken as true .against said property; and that the same be condemned as forfeited to the United States.
    
      “It is further ordered, adjudged, and decreed by the court that the said two hundred and fifty-eight bales and one bag of ■cotton be sold by' the marshal, under and by virtue of a writ of "“venditioni exponas,” to be issued by the clerk of this court, in accordance with the rules and practice of ’ this court; and that upon the return thereof the marshal pay the proceeds of such sale into the depository of the court.
    “ And afterwards, to wit, on Saturday, the twentieth day of June, at the term and in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:
    ■“United States, ex rel. A. M. Pen-nock, &c., v. “ Two Hundred & Fiett-eight Bales & 1 Bag Cotton.
    In admiralty.
    “ This day' came the U. States by the dist. attfy, and on his motion the decree heretofore entered in this cause is set aside as to eighty-two bales of cotton, and the cause as to said eighty-two bales of cotton is, on the motion of the dist. att’y, dismissed.
    “ It is further ordered that the decree be set aside as to eight bales of cotbon, and leave is given to B. S. Compton to intervene as to the same. .
    
      “ lb is farther ordered that the decree be set aside as to six bales of cotton, and leave is given to W. B. Musgrave to intervene as to the same.
    “ And on the same day and year last aforesaid the deposition of Henry S. McLellan, in behalf of B. S. Compton, claimant of eight bales of said cotton, was filed in the office of the clerk of said court, which said deposition is in the words and figures following, to wit:
    “ Be it remembered that on the application of Benjamin S. Compton, claimant in a suit now pending in the district court of the United Statesfor the. southern district of Illinois, wherein the United States and A. M. Pennock are libellants and Two Hundred and Fifty-eight Bales of Cotton are defendants, I, Henry Berry, a notary public in and for the county of Saint Louis, in the State of Missouri, have, this 19th day of June, A. D. 1863, at the city of S’t Louis, in the county of S’t Louis and State aforesaid, without having given notice to the said libel-lants or their counsel, proceeded to examine Henry S. McLel-lan as a witness on behalf of the claimant in the aforesaid suit; and I certify that the reason for taking said deposition is, and the fact is, the said witness resides at the city of Saint Louis aforesaid, more than one hundred miles from Springfield, Illinois, the place where the court in which said cause is expected to be tried is apppointed by law to be held, and the reason why notice of time and place of taking said deposition was not given to the said libellants or their counsel is, libellants and their counsel reside in the city of Springfield, Illinois, more than one hundred miles from Saint Louis, the place where said deposition was taken.
    “And I do further certify that the said Henry S. McLellan, being by me carefully examined, cautioned, and duly sworn to testify the whole truth, says:
    “ I was in the employ of Banger & Compton from the month of November, 18'62, till the last of February, 1863, about four months; I was acting as general clerk for them on the steamboat Evansville, engaged in the purchase of cotton on the Lower Mississippi Biver.
    “ I kno w of B. S. Co mpton purchafein g from one Lafayette Jones, at Bose Dale Landing, eight bales of cotton, which was paid for and delivered at that place; it was afterwards taken from there by the United States gunboat Conestoga and turned over to the United States marshal at Cairo, on the 15th day of May, 1863; it was sold at public sale by the marshal at Cairo; it was sold in a lot of one hundred and seventy-six bales; I mean these eight bales was comprised in a lot of that amount that was sold on that day; I identified these eight bales by their being put up in a large-sized rope baling; there was no other cotton in the whole lot at Cairo, consisting at the time of some seven or eight hundred bales, that was put up in the manner •of these eight bales.
    
      “I mentioned these eight bales at.tbe time to Mr. Phillips, the marshal, and told him they belonged to Mr. Compton; at that time Mr. Compton owned all the cotton that had previously been owned by Ranger & Compton, and which had not been otherwise disposed of by them; he had bought Mr. Ranger out.
    “ The particulars of our trading with the people of the Lower Mississippi and Rauger & Compton’s authority for the same I have fully stated in my deposition taken before Henry Berry, and now on hie in the United-States district court for the southern district of Illinois, in a certain cause therein wherein the United States are libellants against eighty-six bales of cotton, and the United States against one hundred & thirteen bales & two bags of cottton, and wherein B. S. Compton is claimant.
    “HENRY S. MCLELLAN.
    “ Subscribed'and sworn to before me this 18th day of June, A. D. 1863.
    “HENRY BERRY,
    
      Wot. Public.
    
    “ And I do further certify that the preceding deposition was reduced to writing by me, and signed by the said Henry S. McLellan in my presence, and that I am not of counsel or attorney for either of the parties to said suit, nor am I interested in the event thereof.
    “ Witness my hand and notarial seal this 19th day of June, A. D. 1803.
    [SEAL.] “HENRY BERRY,
    
      "Wot. Public, 8H Louis, Mo.
    
    “Filed June 20, 1863.
    “Which said deposition was opened at the instance of S. M. Cullom, proctor for claimant, on the 26th day of June, A. D. 1865.
    “And afterwards, to wit, on Monday, the sixth day of July, at a special term of said court in the year A. D. 1863, the following further proceedings were had in said court and entered of record, to wit:
    “United States, ex eel. & A. M.~) Pennock, j vs. “Two Hundred, and Fiety-eig-ht | Bales and One Bag of Cotton. j
    [>In admiralty.
    “ This cause having been dismissed as to eighty-two bales of the cotton libelled, and the marshal having made return to the writ of venditioni exponas issued herein on the twentieth day of April, one thousand eight hundred and sixty-three, that he sold the remaining one hundred and seventy-six bales and one bag cotton for the sum of twenty-eight thousand two hundred and seventeen dollars and seventy-three cents, and this cause now coming on to be heard for a final decree, it is ordered and decreed by the court that the following allowances be made out of said proceeds for costs and expenses herein: The clerk the sum of sixteen dollars and seventy-five cents, the district attorney the sum of twenty dollars, and the marshal the sum of one thousand one hundred and forty-three dollars and twenty-eight cents.
    “ It is further ordered and decreed by the court that one-half of the balance of said proceeds, amounting to the sum of thirteen thousand five hundred and eighteen dollars and eighty-five cents, be paid into the Treasury of the United States, and that the remaining half, amounting to the sum of thirteen thousand five hundred and eighteen dollars and eighty-five cents, be paid to A. M. Pennock, the informer in this cause.
    “And afterwards, to wit, on the thirteenth day of July, in the year last aforesaid, the claim and answer of B. S. Compton, claimant of eight bales of said cotton, was filed in the office of the clerk of said court, which said claim and answer is in the words and figures following, to wit:
    “United States oe America,
    
      “State of Illinois, Southern District of Illinois :
    
    “In the district court of the U. S. for the southern district of Illinois, June term, 1863.
    “The claim and answer of Benjamin S. Compton, owner & claim ant of of eight bales of cotton, to the libel of information of L. Weldon, on behalf of the United States and of A. M. Pen-nock, against the said eight bales of cotton or the proceeds thereof.
    “And now comes the said Benj. S! Compton, owner as aforesaid, and for answer to the libel against said cotton, doth allege & propound as follows, to wit:
    “1st. That he is the true and bona-fide owner of said eight bales of cotton or the proceeds thereof, and no other person is-the owner thereof.
    “2nd. That it is true as alleged in said libel that said cotton-was purchased in a district of country or part of the United States which before said purchase had been declared by the President of the U. S. to be under insurrectionary control, and that the same was brought into a district of country or part of' the United States not under insurrectionary control; .but this-respondent alleges the facts to be as follows:
    “That some time in the month of January, A. D. 1863, this-Respondent & Ms partner, Gustavus Banger, purchased said eight bales of cotton of one L. Jones, of Mississippi, and paid him the cash for the same; that the said Jones by agreement did deliver the same to respondent on the bank of the Mississippi Biver, at Rosedale Landing, in said State, and while said cotton remained at said point & before respondent had an opportunity of taking the same away, to wit, on or about the first day of Feb’ry, 1863, the gunboat Conestoga, or the parties having said boat in charge, without authority from the Government and without the consent of respondent or his partnef, Gustavus Rauger, or their agent, took possession of said cotton and carried the same up the Mississippi River to Cairo, in the State of Illinois, and at that point the same was seized by the marshal of the southern district of Illinois.
    “Respondent alleges that said eight bales of cotton so seized ■by said marshal was a part of a lot of cotton in the aggregate amounting to 258 bales, libelled herein, and that said eight bales of cotton formed a part & parcel of said 258 bales.
    “Respondent alleges that he & one Gustavus Rauger were partners in the purchase of said cotton, and that soon after the' purchase said Rauger sold all his interest in said cotton to respondent, & their partnership was dissolved by agreement.
    “Respondent alleges that he & his partner had regular government permits & licenses to purchase said cotton frotn the proper authorities of the United States, and that they had a right to purchase and own the same without hindrance.
    “Respondent farther alleges that he and his partner, Gustavus Rauger, have always been & are true & loyal citizens of the United States, and have done nothing in aid of the rebellion against said Government. Respondent denies that said cotton belongs to a person in armed rebellion against the Government of the United States.
    “Respondent alleges that all and singular the above premises ■are true in substance and fact; wherefore he prays that said eight bales of cotton, or the proceeds thereof, be restored to him.
    “B. S. COMPTON.
    “ Filed this 13th day of July.
    “And afterwards, to wit, on Friday, the eleventh day of September, in the year ‘ last aforesaid, the following farther proceedings were had in said court and entered of record, to wit:
    “The United States, on relation A. M. Pennock, . | vs. “Two Hundred and Fiety-eig: Bales and One Bag Cotton.
    
      “On motion, of tbe district attorney, leave is granted bim by the court to amend his libel in this cause by striking out the first allegation.
    “And afterwards, to wit, on Monday, the fifth day of October, at a special term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:
    “The United States, on relation of") A. M. Pennock, ¡ m. ■ ¡> “Two Hundred and Fifty-eight | Bales of Cotton. j
    ¡> In admiralty.
    “It is ordered by the court that an additional allowance of two hundred and eighty dollars be made to the district attorney for his services in this cause.
    “And afterwards, to wit, on Wednesday, the fourth day of November, at a special term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:
    “The United States, on relation of ) A. M. Pennock as informer, j v. ¡> “Two Hundred and Fifty-eight | Bales and One Bag of Cotton. J
    ¡> In admiralty.
    “The decree rendered in this cause on the eight day of June last having been set aside as to eight bales of cotton, it is ordered by the court that so much of the decree of distribution ■entered herein on the sixth day of July last as directs the payment of the residue of the proceeds of sale in this cause to the United States and to the informer herein be set aside.
    “ It- is further ordered and decreed that the marshal retain in bis hands out of said proceeds the sum of one thousand three hundred and ninety-seven dollars and thirty cents, being the amount for which the said eight bales of cotton were sold, and that lie pay into the Treasury of the United States one-half of the residue of .said proceeds, amounting to the sum of twelve thousand six hundred and eighty dollars and twenty cents, and to A. M. Pennock, the informer herein, the remaining half thereof, amounting to the sum of twelve thousand six hundred and eighty dollars and twenty cents,
    “And afterwards, to wit, on Saturday, the twenty-second day of February, in the year of our Lord one thousand eight hun-tired and sixty-eight, the following farther proceedings were bad in said court and entered of record, to wit:
    “The United States, on relation oe ) A. M. Pennock as informer, | v. V “Two Hundred and Fiety-eigiit ] ■ Bales and One Bag of Cotton. 3
    In admiralty.
    “The sum of one thousand four hundred and twenty dollars and eighty-two cents having been deposited in the office of the assistant treasurer of the United States at St. Louis, subject to the order of the court in this cause, and this cause now coming on for final decree upon the claim of B. S. Compton to the proceeds of eight bales of the cotton libelled herein, the court finds that the said B. S. Compton was the owner of the said eight bales of cotton, and is entitled to the proceeds thereof. It is therefore ordered and decreed by the court that the proceeds of said eight bales of cotton, amounting to the sum of one thousand three hundred and ninety-seven dollars and thirty cents, be paid to said B. S. Compton. And it appearing to the court that of the amount deposited in the office of' the assistant treasurer of the United States at St. Louis, subject to the order of the court in this cause, the sum of twenty-three dollars and fifty-two cents was an overpayment, erroneously made by David L. Phillips in the deposit of the sum of ninety-two thousand six hundred and fifty-two dollars and seventy-eight cents made by him as marshal in this and other causes-on the eleventh day of July, A. D. 1863, it is ordered that said sum of twenty-three dollars and fifty-two cents be refunded to said David L. Phillips.’
    “ United States of Aherica,
    
      “Southern District of Illinois, ss :
    
    “ I, George P. Bowen, clerk of the district court of the United States for the southern district of Illinois, do hereby certify that the foregoing is a full, true, and complete transcript of the record and proceedings had in said court in a certain cause lately pending therein, wherein the United States, on relation of A. M. Pennock, as informer, was libellant, and Two Hundred and Fifty-eight Bales and One Bag of Cotton was defendant, as appears the records and files of said court in my office.
    “ In testimony whereof I have hereunto set my hand and affixed the seal of said court at my office in the city of Springfield, in said district, this ninth day of May, in the year of our Lord one thousand eight hundred and seventj-eight, and of the Independence of the United States the one hundred and second.
    [seal.] GEO. P. BOWEN, Cleric?
    
    V. The cotton thus finally condemned as forfeited was the claimant’s cotton, captured and seized as set forth in the second finding, and all tbe money decreed to be paid over, one-balf to tbe Dnited States Treasury and tbe other balf to Oapt. A. M. Pennock as informer, was tbe proceeds of bis said cotton.
    VI. Said sum of $12,680.20 decreed to be paid into tbe Treasury was so' paid by tbe Dnited States marshal.
    VII. Tbe balance, a like amount, decreed to be paid to Captain Pennock as informer, was included with other money received and decreed in like manner by said court in other •cases, making in all $59,943.42, and a check therefor drawn by tbe marshal on tbe assistant treasurer at Saint Louis, with whom the proceeds of cotton libeled in said court bad been deposited, was given to said Pennock, who banded tbe same to A dmiral Porterías tbe real informer. Admiral Porter declined to accept tbe same as informer, but received tbe check and forwarded it to tbe Secretary of tbe Navy for distribution among tbe officers and crews of bis squadrons as captors. Subsequently it was deposited by said Porter, by order of tbe Secretary of tbe Navy, with said assistant treasurer at Saint Louis, and said Porter’s check therefor was given into tbe control of tbe district court of tbe Dnited States for tbe District of Columbia by said Porter, and such proceedings were bad thereon .as appear by tbe following duly-certified copies of the records of said court:
    “Oeeice Dotted States District Attorney,
    “ Washington, D. G., July 12,1864.
    
      "To the honorable the judge of the United States district court for the district of Columbia:
    
    
      “ I have tbe honor to transmit herewith a paper signed by David D. Porter, Eear-Admiral commanding tbe Mississippi squadron, relative to tbe sum of $59,943.42 decreed to said Porter, as informer, by tbe Dnited States district court for the southern district of Illinois in certain cases therein adjudicated. Eear-Admiral Porter declines to receive tbe money as informer, and, with tbe most honorable and just intentions, through bis counsel, Mr. Charles Eames, and 'through tbe Navy Department, invokes tbe aid of tbe Dnited States district court for this District to distribute, in a formal and proper way, tbe sum of money specified among tbe officers and crews of tbe vessels making the captures of the property sold by the decrees of tbe court heretofore referred to.
    
      " I desire to have tbe case put upon tbe docket as by tbe consent of tbe parties, and upon tbe paper referred to and upon tbe check on tbe assistant Dnited States treasurer at Saint Louis, Mo., payable to the order of the assistant treasurer at Washington IX 0., and indorsed ‘Prize-money of Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of the Navy, by Rear-Admiral David D. Porter, commanding Mississippi squadron,’ I shall base a motion for a decree of distribution.
    “E. C. CARRINGTON,
    
      “United States District Attorney.
    
    “ Per NATH’L WILSON, "Assistant District Attorney.
    
    “WASHINGTON, D.. 0., July 7,1864.
    “ I hereby certify that the sum of $59,943.42, now on deposit with the assistant treasurer at Saint Louis, Mo., and represented by my draft for the said amount to order of the assistant treasurer at Washington, under date of Cairo, January 3, 1864,, is the moiety of several amounts decreed by the United States district court at Springfield, Ill., to be forfeited to the United States, which said moiety was decreed to me as informer, in which capacity I declined to receive it, holding myself to be, as commanding officer of the Mississippi squadron, one of the captors, and that the said amount ought to be distributed to the ship’s companies entitled thereto according to the law of distributing prize-money, and I invoke the aid of this honorable court to the end that such distribution may take place through its decree to that effect.
    “And I certify that, to the best of my knowledge and belief, the money rightfully belongs to the ship’s companies of the following vessels of the Mississippi squadron, by which I believe the property, of which it is the proceeds, to have been captured. The vessels are the following: Forest Rose, Curlew, General Pillow, New Era, Louisville, Mound City, Conestoga, Marmora,. Signal, Pittsburg, Cincinnati, General Lyon, Romeo, Caronde-let, Tylor, Petrel, Black Hawk, and tugs.
    “DAVID D. PORTER,
    
      “Rear-Admiral, Commanding Mississippi Squadron.
    
    
      “United States district eourt for the District of Columbia.
    
    “ Present David K. Cartter, chief justice.
    “United States vs. “ $59,943.42, Peize-Money Mississippi squadron, &c.
    “It is ordered by the court, in admiralty sitting, this thirteenth day of July, A. D. 1864, that the check accompanying the petition of Rear-Admiral David D. Porter, and' signed by the said Porter, for the sum of $59,943.42, and indorsed as follows: ‘Prize-money of Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of tlie Navy, by Bear-Admiral David D. Porter, commanding- Mississippi squadron,’ be deposited by the marshal with the assistant treasurer at Washington, and that the money therein described, being the sum of $59,943.42, remain in the hands of the said assistant treasurer subject to the further order of this court.
    “ By order of the court.
    [SEAL.] “D. K. CARTTER,
    “ Chief Justice.
    
    “At a stated term of the United States district court for the District of Columbia, held at the United States court-rooms in the city of Washington, on Wednesday, the thirteenth day of" July, in the year of our Lord one thousand eight hundred and sixty-four.
    “Present, David K. Cartter, chief justice.
    “United States ; vs. “ $59,943.42, Prize-Money oe Mississippi squadron deposited with assistant . treasurer, by order of the Secretary of ' the Navy, by Bear-Admiral David D. Porter, commanding Mississippi squadron.
    “It appearing to the court that there is the sum of fifty-nine thousand nine hundred and forty-three dollars and forty-two cents deposited with the assistant U. S. treasurer at S’t Louis, Missouri, subject to the order of the assistant U. S. treasurer at Washington, and that the said amount was decreed to Bear-Admiral David D. Porter, as informer, by decree passed by the United States district court for the southern district of Illinois in certain cases there adjudicated ;
    “And it further appearing to the court that the said Bear-Admiral David D. Porter declines to receive the said sum of money, or any part thereof, as informer, and desires that the same be distributed as prize-money among the officers and crews of the vessels making the captures of the property condemned by the decrees of the court hereinbefore referred to $
    “And it further appearing to the court that the said Rear-Admiral David D. Porter regards the following-named vessels as entitled to share in the distribution of the said fund, and that by agreement, consent, and understanding by and between the said Bear-Admiral David D. Porter and the officers and crews of the Aessels hereinafter to be named, the vessels hereinafter named are entitled to the proportion of the said sum of $59,943.42 hereinafter stated;
    
      “ And it further appeariug that tlie aggregate sum of tbe eosts and disbursements herein, as by the adjustment on file in the office of the clerk will appear, is eleven hundred and ninety-eight dollars and eighty-six cents, and that the net amount for distribution on the basis of the said adjustment is fifty-eight thousand seven hundred and forty-four dollars and fifty-six cents:
    “ It is now ordered and decreed, on the motion of the district attorney, the counsel for the captors being present in open court and assenting to the same, that the aforesaid net amount be distributed among the following-named public vessels of the United States as follows:
    “To the Forest Eose, two thousand six hundred and forty-four dollars and eighty-three cents.
    “To the Curlew, two thousand two hundred and seventy-seven dollars and seventy-eight and one-half cents.
    “To the General Pillow, four hundred and thirty-six dollars and thirty-six cents.
    “ To the blew Era, fiye hundred and thirteen dollars and eighty-three cents.
    “ To the Louisville, five thousand and sixty-six dollars and seventy-nine cents.
    “ To the Mound City, five thousand and sixty-six dollars and seventy-nine cents.
    “ To the Conestoga, four thousand and ninety-four dollars and ninety-four cents.
    “ To the Marmora, four thousand five hundred and thirty-one dollars and ninety-four cents.
    “ To the Signal, five thousand four hundred and seventeen dollars and two cents.
    “ To the Pittsburg, five thousand and sixty-six dollars and seventy-nine cents. .
    “To the Cincinnati, five thousand and sixty-six dollars and seventy-nine cents.
    “ To the General Lyon, two hundred and sixty-eight dollars and forty-seven cents.
    “ To the Borneo, two thousand three hundred and forty-one dollars and fifty-one cents.
    “ To the Oarondelet, five thousand and sixty-six dollars and seventy-nine cents.
    “To the Tylor, eight thousand eight hundred and fifty-eight dollars and twenty-one cents.
    “To the Petrel, two thousand and thirty-nine dollars and thirty-eight cents.
    “ To the Black Hawk and tugs, two thousand nine hundred and eighty-six dollars and thirty-four cents.
    “By order of the court.
    “D. K. CAETTEE,
    “ Ohf Justice.
    
    
      “ District court of the United States for the District of Columbia.
    
      Clerics certificate of costs.
    
    “United States vs. “59,943.42, Prize Money or Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of the Navy, by Bear-Admiral David D. Porter, commanding Mississippi squadron.
    w r . ‘ ' puze.
    “ Amount of sales as per marshal’s return. $59, 943 42
    “ Amount of costs taxed by the court:
    “ District attorney. $424 58
    “Marshal. 149 85
    “ Counsel for captors.J 599 43
    “Clerk. 25 00
    “ Prize commissioners.
    - 1,198 86
    “ Balance for distribution.
    58,744 56
    “ Examined and certified this 13th day of July, A. D. 1864.
    “D. K. CABTTER,
    
      "Oh’f Justice.
    
    “ United States district court for the District of Columbia.
    “ United States vs. “ $59,943.42, Prize Money oe Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of the Navy, by Bear-Admiral David D. forter, commandiug’ Mississippi squadron.
    >No. Prize.
    “It is ordered by the court, in admiralty sitting-, this thirteenth day of July, A. D. 1864, that in the above-entitled case the sum of eleven hundred and ninety eight dollars and eighty-six cents having been taxed and allowed as costs, that the same be paid to the deputy U. S. marshal, G-. W. Phillips, for the District of Columbia, and that the balance remaining in the hands of the assistant treasurer of the United States at Washington, D. C., being the sum of fifty-eight thousand seven hundred and forty-four dollars and fifty-six cents, to be,paid into the Treasury of the United States, to be distributed according to the terms of the decree passed by this court.
    [seal.] (Signed) . “ D. K. CABTTER,
    “ GWf Justice.”
    
    3 c c
    
      YIII. In pursuance of said orders of the district court of tbe District of Columbia, said money was deposited with the assistant treasurer at Washington, and the final balance, $58,744.56, was covered into the Treasury “ on account of money received for prize-money belonging to the Mississippi squadron,” “ to go to the credit of the captors ”; and thereafter said money was paid out of the Treasury in accordance with the terms of the-, decree of said court hereinbefore set out.
    IX. On the 28th.of August, 1862, the Secretary of the Navy issued the following order:
    “Navy Department, August 28,1862.
    “ The attention of naval officers is called to the regulations of the Secretary of the Treasury concerning commercial intercourse with insurrectionary States or sections, dated August 28, 1862.
    “ I. Commanders of naval vessels will render such aid as may be necessary in carrying out the provisions of said regulations,, and enforcing observance thereof to the extent directed by the- ■ Secretary of the Treasury, so far as can possibly be done with-but danger to the operations or safety of their respective commands.
    “II. There will be no interference with trade in or shipments of cotton or other merchandise conducted in pursuance of said regulations within any of the waters controlled by the naval forces of the United States, unless absolutely necessary to the successful execution of military or naval plans or movements. But in cases of the violation of the conditions of any clearance or permit granted under said regulations, and in cases of unlawful traffic, the guilty party or parties will be-arrested and the facts promptly reported.
    “ III. No officer of the Navy will seize cotton or other property of individuals within the territory opened to traffic and subject to the regulations of the Secretary of the Treasury, unless the same is exposed to destruction by the enemy, or needed for naval purposes, or for confiscation under the act of Congress and in all such cases the fact, with all attendant circumstances, shall be promptly reported to the department.
    “ GIDEON WELLES,
    “ Secretary P
    
    The following order was issued by the Secretary of the Navy, but it does not appear when, if at all, it reached or was forwarded to the officers of the Mississippi squadron:
    “Navy Department,
    “ Washington, March 31,1863.
    “ For the purpose of more effectually preventing all commercial intercourse with insurrectionary States, except such as-shall be authorized in pursuance of law, and of securing consistent, uniform, and efficient action in conducting such intercourse as shall be so authorized, and fox the purpose of carrying out the provisions of an act of Congress entitled ‘An act to> provide for the collection of abandoned property and for the prevention of frauds in insurrectionary States,’ approved March 12, 1863, it is hereby ordered:
    “ I. That no officer of the Navy of the United States, nor other person connected therewith, shall authorize or have any interest in the transportation of any goods, wares, or merchandise (except supplies belonging to, or contracted for by, the United States, designed for the military or naval forces thereof, and moving under military or naval orders, and except also-sutlers’ supplies and other things necessary for the use and comfort of the naval forces of the United States, and moving under' permits of the authorized officers of the Treasury Department)- ■ into any State declared by the President to be in insurrection; nor authorize nor have any interest in the pinchase or sale therein of any goods or chattels, wares or merchandise, cotton,, tobacco, or products of the soil thereof, nor the transportation of the same, except as aforesaid, therefrom or therein; nor shall any such officer or person authorize, prohibit, or in any manner interfere with any such jrarchase or sale or transportation which shall be conducted under the regulations of the Secretary of the Treasury, unless under some imperative military necessity in the place or section where the same shall be conducted, or unless requested by an agent or some other authorized officer of the Treasuary Department, in which case all officers of the Navy of the United States and other persons connected therewith will render such aid in carrying out the provisions of the said act and of the law, and in enforcing due observance of the said regulations of the Secretary of the Treasury, as can be given without manifest injury to the public service.
    “H. It is further ordered that every officer, sailor, or marine in the naval service of the United States who shall receive or have under his control any property which shall have been abandoned by-the owner or owners, or captured in any district declared to be in insurrection against the United States, including all property seized in any sucb district under naval orders, excepting only such as shall be required for the use of the naval forces of the United States and as is excluded by the act of March 12, 1863, shall promptly turn over -all such property to the agent appointed by the Secretary of the Treasury to receive the same, who shall give receipts therefor, if desired-.
    “And every such officer, sailor, or marine shall also turn over-to such agent in like manner ad receipts, bills of lading, and other papers, documents, and vouchers showing title to such, property; or the right to the possession, control, or direction thereof: and he shall make such order, indorsement, or writing as be lias power to make to enable such agent to take possession of such property or the proceeds thereof. Arms, munitions of war, forage, horses, mules, wagons, beef-cattle, and supplies which are necessary in naval operation, shall be turned ■over to the proper officers for the use of the Navy. All other property abandoned, captured, or seized as aforesaid shall be delivered to the said agent of the Treasury Department.
    “The officer receiving or turning over such property shall give the usual and necessary invoices, receipts, or vouchers therefor, and shall make regular returns thereof, as prescribed by the Navy regulations. The receipts of the agents of the Treasury Department shall be vouchers for all property delivered to them; and whenever called upon by the said agent of the Treasury Department authorized to receive such abandoned, or captured, or seized 'property, as aforesaid, or the proceeds thereof, all persons employed in the naval service of the United States will give him full information in regard thereto, and if requested by him so to do, they shall give him duplicates or copies of the reports and returns thereof, and of the receipts, invoices, and vouchers therefor.
    “And every officer of the Navy of the United States hereafter receiving abandoned, or captured, or seized property in any in-surrectionary State as aforesaid, or the proceeds thereof, or under whose order it may be applied to the use of the naval forces as aforesaid, shall, upon request of an agent appointed by the Secretary of the Treasury as aforesaid, render a written report, with invoices thereof, to said agent, in which he will specify the arms, supplies, or other munitions of war retained for use of the naval forces as aforesaid, and also, separately, the property turned over to said agent, or which majr have been sold or otherwise disposed of. And in case a sale of any such property shall be made under his authority, or under the authority of any one subject to his order, he will so state, and will describe the property so sold, and will state when and where and by and to whom sold, and the amount received therefor, and what disposition was made of the proceeds.
    ■“And all officers of the Navy of the United States will at all times render to the agents appointed by the Secretary of the Treasury all such aid as may be necessary to enable them to take possession of any abandoned, or captured, or seized property aforesaid, and in transporting the same, so far as can be done without manifest injury to the public service.
    “All expenses of transporting property herein referred to will be reported by the officers who furnish the transportation to the agent of the Treasury Department, and also, through the proper channels, to the Navy Department at Washington, in order that the expenses may be reimbursed from the proceeds of sales of such transported property.
    “III. All naval officers in command of squadrons, vessels, or stations will, upon receipt of this order, revoke all existing-orders throughout tbeir respective commands conflicting or inconsistent herewith, or wbicli permit, or prohibit, or in any manner interfere with any trade or transportation conducted under the regulations of the Secretary of the Treasury not understood as applying to any lawful maritime prize by the naval forces of the United - States; and their attention is particularly directed to said regulations, prescribed March 31, 1863, and they will respectively make such orders as will insure strict observance of this order throughout their respective commands.
    “GIDEON WELLES,
    “ Secretary of the Wavy.”
    
    X. The following correspondence took place between Admiral Porter and the Secretary of the Navy:
    “U. S. Flag-ship Black Hawic,
    “ March 7,1863.
    “ Sir : In the last twenty days I have sent to Cairo 388 bales -captured cotton, valued at one hundred and thirty-nine thousand dollars, and have on hand from the New Era No. 5 and other sources two hundred and fifty-nine (259) bales, valued at ninety-one thousand dollars; two hundred and thirty thousand dollars in all. This cotton has been turned over to the marshal at Cairo. In the Army, all cotton seized is sent to Memphis and sold by the quartermaster for the use of the Army. If our paymaster at Cairo had the authority to sell the cotton, much of which has no ownership, he could easily keep the fleet supplied with funds.
    “Yery respectfully,
    “DAVID D. PORTER,
    
      “Act’g Bear-Admiral, Oonmtfg Miss. Squadron„ “Hon. Gideon Welles,
    
      “ Secretary of Wavy, 'Washington.
    
    “Navy Department, March 28,1863.
    “Sir: In reply to your letter of the 7th iust., you are informed that all property captured as ‘prize property’ must be sent to a prize court for adjudication,, and be disposed of as the court may decree.
    “The.disposition of captured‘abandoned property’is provided for by the recent act of Congress, approved March 12, 1863.
    “Yery respectfully,
    “GIDEON WELLES,
    “ Secretary of the Wamy~
    
    “David D. Porter, Act. Bear-Admiral,
    
      " Commanding Miss. Squadron, Cairo, Ills.”
    
    
      XI. Agents, under the Act of March 12,1863, were appointed by the Secretary of the Treasury April 4, 1863. It does not appear when they accepted the appointments, gave bonds, or first entered upon their duties.
    
      Mr. John Pool (with whom was Mr. J. S. Fowler) for the ciaimant.
    The cotton was carried to Cairo, and there turned over to the United States marshal, libeled, and sold under an order of the United States court, and the proceeds paid into the Treasury. It was treated as prize, or confiscated property, after the ratification of thb Act of March 12, 1863.
    The court observed no distinction between prize and confiscated property. This cotton was not confiscable even prior to the Act of March 12, 1863, which act operated as a repeal of the confiscation acts, so far as they might relate to the property which came under its purview.
    In,addition to the $12,680.20 paid by order of the court into 'the Treasury, the claimant is entitled to recover the $12,680.20 decreed to -Commodore Pennock, as informer, and by him turned over to Admiral Porter, and actually deposited in the Treasury by the Admiral. (See Oooh vs. United States, 9 C. Cls. B.., 288.)
    
      Mr. Assistant Attorney-General Simons for the defendant.
    The proceeds of the cotton condemned are in the Treasury as confiscated to the United States by decree in rem of a court of competent jurisdiction, and are not subject to the decree or jurisdiction of this court.
    In Coolds Case (9 C. Cls. B., 288), this court held that a district court had no prize jurisdiction of a capture on land, but conceded that if said court had had jurisdiction of the seizure, the claimant in that case would have had no remedy here, and this application of the doctrine of res jiidicata is so familiar as to need no citation of authority. We contend, therefore, that the district court had jurisdiction.
    It will not be pretended that the passage of the Act of March 12-, 1863, in any respect limited the operation of the Non-intercourse and Confiscation Acts. , (12 Stat. L., 255-589.) Cotton con-fiscable before that date was equally confiscable thereafter. It cannot be denied also that jurisdiction for purposes of confiscation or for enforcing the penalties of the non-intercourse acts was vested in any district court into which the property should be brought from the States in insurrection.
    When, therefore, this property was brought from Milliken’s Bend, or thereabouts, to Cairo as a naval seizure, it came within the territorial jurisdiction of the district court in question, and although that event occurred after the passage of the Captured and Abandoned Property Act, the seizure of this property was before the act. If it was seized as rebel property for purpose of confiscation, will it be claimed that anything in the Act of March 12,1863, obliges the captors to relinquish the seizure after that date or prevented the district court from taking jurisdiction thereof for that purpose ; and if it had such jurisdiction, how can its final decree be set aside or interfered with by this court ? (Gelston v. Hoyt, 3 Wheat., 247, 312.)
   Davis, J.,

delivered the opinion of the court:

On the 18th of February, 1863, the claimant was in possession of a plantation in Mississippi, on the river, between Vicksburg and the mouth of the Bed Biver. It had belonged to his testator, and had been left by the will in the occupancy of the executor. As executor, he was the owner of 168 bales of cotton then on the estate. On that day this cotton was seized by the naval forces of the United States for purposes of naval defense, and was taken to Johnson’s Landing, below Vicksburg, hauled across land to Young’s Landing, and there, by order of Admiral Porter, in command of the Mississippi squadron, was put on board the transport Bowena, together with 90 other bales.

On the 7th of March, Admiral Porter reported the capture of this cotton, as required by the Secretary’s general order of August 28,1862, and on the 28th of March the Secretary of the Navy instructed him, in reply, that property captured as “prize property” must be sent to prize courts for adjudication, and that the disposition of captured abandoned property was provided for by the then recent act of Congress, approved March 12, 1863.

On the 31st March or the 1st April the Bowena left Young’s Landing with the 258 bales of cotton, and arrived with them at Cairo, in Illinois, on or about tbe 7th April. There they were delivered to Caiitain Pennock, fleet-officer, acting under Admiral Porter.

On the 9th of April, Captain Pennock lodged with the district attorney for the southern district of Illinois one information against the 258 bales, alleging that a part of it was seized “ at Wilson Mitchell’s Landing,” and that £cthe balance” (which included the claimant’s cotton) “was sent from the Tazoo River by Admiral Porter.”

On the 17th April the district attorney libeled all the cotton, alleging that the 258 bales had been seized at Wilson Mitchell’s Landing, and charging, first, that the seizure had been made for a violation of the non-intercourse act; and, second, that it had been made because the owner was in armed rebellion against the United States.

All the cotton was sold by order of court pendente lite. By proceedings not necessary to consider, the proceeds of the cotton of other owners were separated from the proceeds of the claimant’s cotton, and were distributed by order of court.

On the 11th of September an amendment to the libel was allowed on motion of the district attorney. Though the amendment is loosely drawn, we think it operated to strike out the allegation that all the cotton was seized at Wilson Mitchell’s Landing •, an allegation which was evidently untrue

On the 4th of November, 1863, a decree was entered that one-half the proceeds of the cotton should be paid into the Treasury, and that the other half should be paid to Captain Pennock as informer. Both payments were made in accordance with the decree. Subsequently, much the larger part of the informer’s half found its way into the Treasury by proceedings which will be noticed hereafter.

The record of the proceedings in Illinois is loose and defective, but no more so than those which were sustained in the Confiscation Cases. (20 Wall., 92.) Most of the errors are identical with those which were put forward and overruled in that case. It is pressed upon us that the payment of half the proceeds to an informer was without warrant of law. Conceding this, the claimant cannot inquire into it in these proceedings if the district court had jurisdiction of the case. (Windsor v. McVeigh, 93 U. S., 274, and authorities cited in the opinion of the court.) If tbe court bad no jurisdiction, tbe inquiry is unnecessary.

Some question was made at tbe trial as to tbe nature of these proceeding's. In our opinion tbe suit was begun and conducted under tbe provisions of tbe Confiscation act of July 17, 1862, Avitb pleading's in some respects identical, and in most respects similar, to tbe pleadings in tbe Confiscation Oases, wbicb are reported in tbe 20tb Wallace. It must therefore stand or fall by that act.

Tbe Attorney-General contends that tbe proceeds of tbe claimant’s cotton were duly confiscated in Illinois, and that tbe claimant is therefore debarred from pursuing them into tbe Treasury under the provisions of the Captured and Abandoned - Property Act.

Tbe claimant, on tbe other band, maintains that tbe provisions of tbe Captured and Abandoned Property Act are repugnant to tbe provisions of tbe Confiscation Acts; that tbe two cannot exist side by side; and that, consequently, tbe later repeals tbe earlier statutes.

Courts do not favor repeals of statutes by implication. Although subsequent laws cover some, or even all, tbe cases provided for by tbe prior statute, they may nevertheless be merely affirmative, cumulative, or auxiliary. In order to sustain a repeal by imylication, there must be a positive repugnancy between tbe provisions of tbe new law and those of tbe old (Wood v. United States, 16 Pet. 363) wbicb makes it absolutely impossible to reconcile tbe two. (McCool v. Smith, 1 Black, 471; see also Gillis’ Case, 95 U. S., 415, 416.) Especially, when there is a series of statutes on a subject, a court will endeavor to sustain tbe series as a whole (White v. Johnson, 23 Miss., 68 ; The State v. Mister, 5 Md., 11); and it will not regard tbe prior statutes as repealed by a later one by implication, unless tbe latter is either entirely inconsistent with tbe former or revises tbe whole subject matter and is evidently intended as a substitute for them. (Farr v. Brackett, 30 Vt., 344; .Giddings v. Cox, 31 Vt., 607; Longlois v. Longlois, 48 Ind., 60; Lewis v. Stone, 22 Wis., 234; New London R. R. Co. v. B. & A. R. R. Co., 102 Mass., 386.)

Tbe Confiscation Act of July, 1862, first made provisions for-tbe punishment of treason, wbicb are still in force. Then it required tbe President, after public warning, to seize tbe property of persons engaged in armed rebellion. It authorized proceedings in rem to be instituted against it after seizure for tbe purpose of condemnation and sale, and it directed tbe proceeds of tbe sale to be paid into tbe Treasury.

It was tbe evident purpose of Congress, as expressed in tbis legislation, that tbe property of disloyal enemies should be seized and sold through tbe instrumentality of tbe courts, and that tbe proceeds should pass into tbe Treasury.

Tbe Captured and Abandoned Property Act, however, contemplated tbe seizure, not only of tbe properties of disloyal persons but those of loyal persons as well in enemies’ country, and it created a new channel by which both might reach the Treasury. It further gave to a loyal owner who had never given aid or comfort to the rebellion the privilege of pursuing the proceeds of his cotton in this court; but as to a disloyal person, it increased the rigor of the law, by authorizing a new, rapid, and arbitrary mode of converting his property into a means for suppressing the rebellion, which recognized the title of the United States as absolute in it from the day of the seizure. It made no change in the disposition which the Confiscation Acts authorized the courts to make of that property. The privilege which a disloyal owner now enjoys comes to him from an executive act, which Congress attempted to set aside, and which would have been equally potent against an impending decree of confiscation.

A late and’carefully considered opinion of the Supreme Court justifies this conclusion. The court there says: In the indiscriminate seizure of private property, it seemed to Congress that friends might sometimes suffer. Therefore, to save them, it was provided that property when captured should be sold, and the proceeds paid into the Treasury of the Unjted States. * * As to all persons within the privileges of the act, the proceeds were to be held in trust, but as to all others the title ■of the United States was absolute.” (Collie's Case, 97 U. S., 39.)

It is clear that there is no conflict of priciple between the earlier and later acts. The repugnancy which is to force a court to the irresistible conclusion that the Confiscation Acts are repealed by implication is to be found (if at all) in that provision relating to the machinery for its execution whereby all cotton and other specified kinds of property in enemy’s country .are subjected to it.

The Confiscation Acts authorized the seizure of rebel property wherever found; the Captured and Abandoned Property Act only of certain kinds of property in the enemy’s country. The former contemplated the condemnation and sale only of the rebel’s interest in the property; the latter proceeded against the ■property itself, and put the absolute title to it in the state. The former, or at least the act of 1861, was a permanent measure; the latter was a temporary act, and expired with the rebellion. The former were repealed, if at all, on the passage of the new statute. The effective force of the latter against property was suspended until the Secretary of the Treasury should appoint agents to execute its provisions.

Thus it appears not only that the subject-matter and the duration of the earlier and of the later statutes are dissimilar, but also that the supposed date of the extinction of the former and the actual time when the latter became operative were not identical. It follows that conclusions drawn from the description of property affected by the act of 1863 are subject to serious modifications and exceptions, if we halt before the further conclusion that the new repiedy was cumulative and auxiliary.

The decisions of the Supreme Court in the Cotton Cases afford few glimpses of its leanings on this question. In only one. reported case of this class was an opportunity offered to the court to hold the Confiscation Acts repealed bjr the Abandoned and Captured Property Act. In Morris’s Case (8 Wall., 507) the proceedings were against cotton under the Confiscation Acts.. The monition was issued in May, 1866, and the decree of the court below, confiscating the cotton, was rendered December 20,1866. The court above reversed the decree on the ground of irregularity in the proceedings, and in an elaborate opinion took no notice 'of the present point, which would have been fatal to the judgment if taken. The decision is therefore authoritative only so far as silence, when opportune was offered the court to speak, is to be regarded as indicative of its views.

In Klein’s Case (13 Wall., 128) Mr. Chief Justice Chase called attention to the fact that no provision is made in the Captured and Abandoned Property Act for the confiscation of the property of disloyal owners, and added, that whether restoration would be ' made to those who had not continually adhered to the Government or confiscation would be enforced was left to be determined by considerations of public policy subsequently to be developed. If we may draw conclusions from such casual expressions, it is not unreasonable to assume that tbe late learned Chief Justice was of opinion that the Confiscation Act was still in force and that its powers might be invoked.

Io Sprott’s Case (20 Wall., 459) Mr. Justice Field argued that the title of that claimant remained on the day of the delivery of. the property as perfect as it did the day the cotton was seized.,, because no proceedings under the Confiscation Acts had been instituted by the government for the condemnation and forfeiture of the cotton seized or its proceeds.

We are not insensible to the injustice of drawing positive conclusions from such isolated utterances. Every judge knows that expressions will creep into the most carefully prepared opinion which, when separated from their context, are capable of being-distorted to conclusions at variance with those entertained by their author. Making due allowance, however, these passages-in the reports are not without weight; and there are, in addition,, two late real-estate cases which may fairly be deemed to throw-more positive light on the views of the higher court.

The first is Semnes’s (Jase (91U. S., 21). He was the owner of certain real estate in Louisiana, against which proceedings for confiscation were instituted August 7,1803. The Captured and Abandoned Property Act did not at that time apply to real estate; but on the 2d July, 1804, it was extended by Congress so as to include all descriptions of property mentioned in the act of July 17, 1802, including real estate. About nine mouths after the passage of the act of 1804 the district court of Louisiana rendered judgment condemning Semmes’s property under the act of 1802. His real estate was sold under that judgment. The proceedings were brought before the Supreme Court and the judgment affirmed.

In the second case (Pike v. Wassel, 94 U. S. 711) lands in Arkansas were, on the 10th February, 1805, seized pursuant to instructions from the district attorney for the purpose of confiscation. On the 17th of that month they were libeled in the proper court, and on the 5th of the following April a decree of condemnation was entered, under which the lands were sold. On appeal the proceedings were sustained so far as they affected the interest of the then owner.

No question of jurisdiction was raised in these cases; but the court might have considered it of its own motion (Herriott v. Davis, 2 W. & M., 229). It is difficult to see how the judgments-could have been rendered if the provisions of the act of July 17, 1862, affecting real estate, Avere repealed by the amendments made in 1864 to the act of March 12, 1863.

In view of all this, we cannot think that Congress intended in •every case to substitute the Captured and Abandoned Property Act, a statute limited in scope and temporary in duration, for the Confiscation Acts, with broader provisions and more enduring-life ; or that it designed, in the midst of war, to cut short all power of disposing of enemies’ property captured in the enemies’ country until an executive officer whom the Constitution clothes with no legislative functions should revive the power in another form.

Even if it were not a matter of history of which we may take judicial notice, the record in this ease would tell us under what circumstances the Captured and Abandoned Property Act was passed. The armies and fleets of the Government were in the heart of the insurgent country. Its wealth, so far as they penetrated, was within their grasp. Properties of friend and foe alike were held subject to the merciless rights of war. The statute, which has been well styled u liberal and beneficient legislalion” (Alexander’s Case, 2 Wall., 422), interposed its shield to save all from destruction or ravage; to lodge the property of friends where they might in more peaceful times seek its proceeds, and to give the Government the use of the wealth which its enemies would otherwise employ for its overthrow. The President’s power to seize, under the act of August, 1861, property employed in aiding, abetting, or promoting the insurrection, or, under the act of 1862, the properties of persons serving or holding office under the Confederate States or any of them, or any person in the loyal States who should give aid and comfort to the rebellion, or of persons in the disloyal States who should be actually engaged therein, was left unchecked by it; and no restraint was placed upon the subsequent proceedings authorized by those statutes for the condemnation and sale, as confiscated, of any properties which might be so seized under executive order.

Without such a previous seizure under an executive order, however, for the purpose of confiscation, no proceedings could be properly instituted under the Confiscation Act of July 17, 1862 (The Confiscation Cases, 20 Wall., 108); and as a district court of the United States is a court of limited jurisdiction, although not an inferior court (Thompson v. Lyle, 3 Watts & Serg., 166), and as it must always appear in tlie record that it has jurisdiction of the particular case which it attempts to adjudicate (Exparte Smith, 04 U. S., 456), the record in any proceeding for confiscation must show an executive seizure of the property condemned before the court assumed jurisdiction over it (The Confiscation Oases, sup). If the fact snecessary to give the court jurisdiction do not appear in the record, its jurisdiction may be inquired into in every other court where the proceedings are relied upon and brought before the latter by a party claiming the benefit of them (Williamson v. Berry, 8 Pet., 540, cited with approval in Thompson v. Whitman, 18 Wall., 467).

In the present case no such executive order preceded the confiscation proceedings. The claimant’s cotton was seized by the naval forces of the United States under the general executive order of August 28,1862, for the purpose of naval defense. The Admiral in command reported the seizure, as required by the order, and was instructed by the Secretary of the Navy, on the 28th of March, to hold the cotton under the Abandoned and Captured Property Act. , This executive order struck at the root of the proceedings in Illinois; and when the district attorney libeled the cotton, he did not, because he could not, aver that it had been seized by executive order for the purpose of confiscation. The condemnation and sale under such a record are void, and for such portion of the claimant’s cotton as passed into the Treasury he is entitled to a judgment in this action, notwithstanding the judgment in Illinois.

We all agree that he is entitled to recover the moiety which the district court in Illinois decreed to be paid into the Treasury, and which was paid in after the passage of the Abandoned and Captured Property Act, notwithstanding the fact that the seizure of the cotton was made before the passage of that act. The decision as to the remainder is concurred in by only a majority of the court.

The suit in which the claimant’s cotton was condemned was one of many similar suits brought to judgment in the district court for the southern district of Illinois at that term, in all of' which Cairtain Pennock appeared as informer. In each of the suits a moiety of the proceeds was adjudged to him; and at the close of the term he received one check for $59,943.42, as representing the aggregate of the various sums so decreed to him. This identical check he handed to Admiral Porter as his superior officer. Admiral Porter was unwilling to receive or keep it as an informer, and sent it to tlie Secretary of tlie Navy for distribution among tlie officers and crew of tlie Mississippi squadron as captors. Tlie Secretary of tlie Navy refused to so distribute it, and returned tlie same clieck to Admiral Porter. The Admiral then deposited the check with the assistant treasurer at Saint Louis, on whom it was drawn.

In July, 1874, proceedings were begun in the district court of the United States in the District of Columbia for the purpose of making such a distribution of said money among the officers and crew of the Mississippi squadron. These proceedings were instituted through Admiral Porter, who placed in the custody of the court his check upon the assistant treasurer at Saint Louis in favor of the assistant treasurer at Washington for the amount so deposited by him.

The district court of the District of Columbia took jurisdiction in admiralty of the res thus placed in its custody in a suit entitled “ The United States vs. $59,413.42, prize-money of the Mississippi squadron, deposited with the assistant treasurer, by order of the Secretary of the Navy, by Pear-Admiral David D. Porter, commanding Mississippi squadron.” It made three decrees on the 13th July, 1864.

By the first, it ordered the marshal to deposit the check with the assistant treasurer at Washington, and that the money therein, described should remain subject to the order of the court.

By the second, it recited that the money had been decreed to Admiral Porter, as informer, by the district court in Illinois, that the Admiral declined to receive it as informer, and desired it to be distributed as prize-money, and that it was subject to the payment of a certain amount of costs and disbursements, and it decreed that the residue, after payment of such costs and disbursements, should be distributed among the public vessels of the United States named in the decree.

By the third, it ordered the payment of said costs and disbursements, and that the residue of said money should be paid into the Treasury of the United States, to be distributed according to the terms of the decree passed by the court.

If these proceedings are to regarded as ancillary to the proceedings in Illinois for the purpose of correcting an assumed error of that court in failing to make a distribution of prize-money they are void, not only because tbe court in Illinois itself would have been powerless to correct the supposed error after the expiration of the term in which the decree was rendered (The Lizzie Weston, Blatchf. Pr. Cas., 265, and authorities there cited), and because the original judgment to which it purported to be ancillary was itself void, but also because the Illinois suit was not in prize, but for the confiscation of enemies’ property. A suit for confiscation is an action of an entirely different nature from a proceeding in prize. Confiscation is the act of the sovereign against a rebellious subject. Condemnation as prize is the act of a belligerent against another belligerent. Confiscation may be effected by such means, either summary or arbitrary, as the sovereign, expressing its will through lawful channels, may please to adopt. Condemnation as prize can only be made in accordance with principles of law recognized in the common jurisprudence of the world. Both are proceedings in rein, but confiscation recognizes the title of the original owner to the property which is to be forfeited, while in prize the tenure of the property seized is qualified, provisional, and destitute of absolute ownership. (The Peterhoff, Blatchf. Pr. Cas., 620.) To confiscate property seized upon land, resort must be had to the common-law side of the court. (The Confiscation Cases, 20 Wall., 110.) Prize proceedings are always in admiralty.

If, on the other hand, they are to be regarded as independent proceedings, there must be statute authority to support them. Consent of parties will not confer on a district court a jurisdiction not given by statute (Railway Company v. Ramsay, 22 Wall., 322), especially where the rights of other parties are affected. The rights of the United States were involved by the decree of the district court of the District of Columbia as well as the rights of the claimants and of other owners of cotton condemned in Illinois. No one could acquire an interest in a prize except by the grant or permission of the United States (The Siren, 13 Wall., 393), or could take such right except in the manner authorized by law. The only authority found at that time for prize proceedings was contained in the act of July 17, 1862, for the better government of the Navy (12 Stat. L., 600; Alexander’s Case, 2 Wall., 422); and in the act of March 3, 1863, to regulate proceedings in prize cases (12 Stat. L., 759).

By the second section of the act for the better government of tbe Navy, tbe United States granted to tbe officers and men in tbéir Navy, wbo should make maritime captures, a share in such as might be condemned as prize.

By tbe eleventh section of the act they directed that their own share in prizes should constitute a fund for the payment of naval pensions.

By the twelfth section, they directed the court which should have the custody of the res, or its proceeds,, when final condemnation should be made, to deposit the gross proceeds of the sale with the assistant treasurer of the United States at or nearest the place where the sale should be made; and by the act of Jdarch 3,1863, they made that deposit subject to the order of the court which was authorized to make payments and disbursements from it j and they further authorized the court to make final distribution of the residue after payment of the disburse-ments allowed by law, and required it to order such residue to be paid into the Treasury of the United States for distribution there according to the decree.

We are of opinion that no court is empowered to decree this final distribution except the court which first acquires jurisdiction over the res or its representative proceeds. We therefore think that the whole proceedings in Washington were not only void in themselves but void on their face, so as to afford no protection even to an innocent depositary without hire paying out money on the faith of them to a party not entitled to receive it.

The defendants, however, are not in the position of an innocent depositary without hire. Their agent carried away the claimant’s property, and they have undertaken that so much of its proceeds as the claimant can trace into the Treasury shall be repaid to him. ' (Haycraft’s Oase, 22 Wall., 81.) The suit which they authorized him to bring for the proceeds resembles the common-law action of indebitatus assumpsit — a liberal equitable action, which lies whenever a defendant becomes possessed of a plaintiff’s money, or of his property and converts it into money, and in the absence of some controlling rule of public policy or law cannot retain it with good conscience or without violating therules of natural justice and equity. We must treat the Government in such a suit precisely as a private person would be treated as defendant by a common-law court having jurisdiction of similar controversies between private parties.

The ministerial officer who pays the money under such a judg-merit may or may not be protected, in the absence of fraud, as against the Government. Wo are not called upon to decide that question. But the payment does not protect the Government itself against the statutory obligation which it assumed to pay to an owner of captured property, no party to the judgment record, so much of the proceeds of his property as reached the Treasury. “In Sevier’s Case (7 C. Cls. R., 387) it was held that it is no part of our duty to inquire whether the fund in the Treasury is or is not exchanged, so long as the proper claimant to whom the promise was made is unpaid. That this decision was right is too clear for argument. The language of the third section of the act is explicit, that every claimant who establishes his right to judgment according to the provisions of that act is entitled to it, irrespective of the amount in the Treasury. It is for the political department of the Government to determine whether he shall have a further remedy in case nothing is in the Treasury to respond to a judgment.” (Burke's Case, 13 C. Cls. R., 240.)

It is further contended that this half of the proceeds of the claimant’s cotton lost its identity before the money which is claimed to be identical with it came into the Treasury. We do not think so. It was certainly paid to Captain Pennock; as certainly he paid it to Admiral Porter. From Admiral Porter it went to Secretary Welles; from Secretary Welles back again to Admiral Porter. By Admiral Porter it was macfe the subject of litigation in Washington and deposited with the court there. By the court it was ordered paid into the Treasury. In obedience to that order it was so paid. Every link in the chain is as clear as sunshine at noonday.

In our opinion the claimant has established everything which the law requires him to establish in order to be entitled to recover both the moiety of his cotton, amounting to $12,080.20, which was paid into the Treasury by order of the district court for the southern district of Illinois, and so much of the other moiety, amounting to $12,420.00, as was paid into the Treasury by order of the district court of the District of Columbia, making in all $25,100.80.

Judgment willbe entered accordingly.

BiciiardsoN, J.,

dissenting:

I concur with, all my associates in bolding that tbe claimant is' entitled to recover tbe $12,080.20 paid into tbe Treasury by tbe marshal from tbe proceeds of bis cotton captured in rebel territory, and after tbe passageof tbe Act of March 12,1863, brought into a loyal State, and in possession of an officer of tbe Navy, without having been libled previously thereto for forfeiture under tbe provisions of tbe Aot July 13,1801, § 5 (12 Stat. B., 257), nor seized by order of tbe President at any time under' tbe provisions of tbe Aot July 17, 1802, §§ 5, 6, 7 (12 Stat., 590), so much having reached tbe Treasury as tbe proceeds of captured cotton and being still held by tbe defendants for tbe loyal owner; but I am constrained to differ from tbe majority in giving judgment for that which did not so come into their control and which is not now in their Treasury.

Tbe difficulty with this branch of tbe claimant’s case is that tbe money decreed to be paid to Captain Pennock lost its identity, was covered into tbe Treasury as prize-money belonging to tbe captors upon an order issued by a court of competent-jurisdiction in admiralty, was so entered in the books of tbe department, was known to tbe defendants only as such prize:money, and was paid out, as it was received, under tbe same order of tbe same court, acting under tbe statutes then in force for tbe distribution of prize-money, in pursuance of a permanent appropriation made by law, and without notice of tbe present claim.

It cannot be doubted that tbe decree of tbe district court in Illinois, ordering one-half of tbe proceeds of tbe cotton condemned to be paid to Captain Pennock, as informer, was irregular and not warranted by law. Nevertheless, tbe decree was obeyed and acted upon, and tbe money, with other money decreed ill like manner in other cases, to tbe amount, in all, of $59,943.42, was paid to Captain Pennock by tbe marshal by bis check therefor on an assistant treasurer, not on tbe Treasurer, for tbe money bad not reached tbe Treasury, and was not subject to tbe constitutional provision that “ no money shall be drawn from tbe Treasury but in consequence of appropriations made by law,” but was subject to tbe order of tbe court. Captain Pennock, while be did not aepept tbe same for bis own use, did receive it and hand it to Admiral Porter, whom be regarded as tbe real informer. And Admiral Porter, when he, too, declined to appropriate it to his own use, did accept it for the officers and men of his squadron. He deposited it in his own name, and subsequently drew his own check for the amount against the same deposit, and voluntarily surrendered-this, his own check, into the control of the district court of the District of Columbia, a court having full admiralty jurisdiction, for distribution as captors’ prize-money. The check was indorsed “Prize-money of Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of the Navy, by Bear-Admiral David D. Porter, commanding Mississippi squadron.”

Thus the proceeds of the claimant’s cotton, to that extent, lost its identity as against all persons except those having actual notice. Without the restricted indorsement Admiral Porter might have passed this check to anybody for value received without subjecting the receiver to liability on account of the manner in which the Admiral obtained the money on deposit against which it was drawn, and that indorsement only stamped it with notice that it was prize-money.

By the Act March 3, 1803, chapter 91, § 3 (now Bev. Stats. Dist. of Col., § 7G2), it was provided, with refereene to justices of the Supreme Court of th¿ District of Columbia, that “ any of said justices may hold a district court of the United States for the District of Columbia in the same manner and with the same powers and jurisdiction possessed and exercised by other district courts of the United States.” This gave to that court jurisdiction “of all causes of admiralty and maritime jurisdiction * * and of all seizures on land and on waters not within admiralty j urisdiction * * and original and exclusive cognizance of all prize brought into the United States except” property used, &c., in aid of insurrection, as set forth in the several acts now incorporated into Bevised ’Statutes, § 563, ¶ 8; § 629, 6; §§ 5308, 5309.

The Act June 30, 1864, chapter 174, § 16 (now Bev. Stats., § 4641), provided, in relation to prize, “that the net amount decreed for distribution to the United States, or to vessels in the Navy, shall be ordered by the court to be paid into the Treasury of the United States to be distributed according to the decree of the court; and the Treasury Department shall credit the Navy Department with each amount received, to be distributed to vessels of the Navy; and the persons entitled to share therein shall be severally credited in their accounts with the Navy Department with the amounts to which they are respectively entitled.”

It is only with orders of the courts made under this provision that the Treasury Department has any concern. If money comes through,a court of such general jurisdiction, declaring it to be prize-money, and ordering its payment into the Treasury, and its distribution among the vessels of the Navy named in its decree, the officers of the Treasury are bound to respect it, and it is no part of their official duty to inquire into the sources from which the money may have been derived, nor to determine whether or not the court has erred in its judgment in holding it to be lawful prize-money, nor to inspect all the records to ascertain whether or not the court may not have committed errors in the forms of proceeding, or even made a mistake in taking jurisdiction at all. They are not to sit in review of the proceedings of a Federal court whose order comes to them in relation to a subject-matter over which it has general jurisdiction.

And especially is it their duty to respect such a decree in whole, if at all. If they accept the money, according to the terms of the decree, as prize-money belonging to the captors, and cover it into the Treasury as such, it becomes, to all intents and purposes, prize-money, subject to the permanent appropriation made for the payment thereof to the captors on the decree of court by the statutes now incorporated into Revised Statutes, § 3689, second edition, p. 728, and § 4611. It has then certainly, if not before, lost its identity, as any other money, or as belonging to any other persons; more strongly so when, as in this case, no knowledge or notice comes to them or to the defendants, in any form whatever, that there are other claimants thereto, until a long time after it has been paid out as it was received, under the decree of court and in pursuance of an appropriation made by law.

This money was deposited with the assistant treasurer at Washington, under the first order of court, as prize-money, to “remain in the hands of said assistant treasurer, subject to the further order of this court;” and it may be noted here that the assistant treasurer at Washington never receives on deposit any money other than prize-money deposited under the provisions of law (now Rev. Stats., § 4629); all other public money, or money in control of tlie Federal courts, in Washington, being-deposited with, the Treasurer. Subsequently, the further order of court was to pay it into the Treasury and distribute it according to the decree, which is set forth, and which named the vessels which were to share therein and the amounts to each, and the statute (Rev. Stats., § 4641) provided how that should be done, and it was done accordingly. The money was thus received with a condition annexed thereto; it could have been received in no other way; and if the defendants’ officers so received it they were bound so to distribute it, and their acts in pursuance thereof are binding on all parties concerned.

The chief justice of the Supreme Court of the District of Columbia, holding a district court, seems to have decreed a distribution of the money as by consent of the only party having control of the same. He appears to have proceeded upon the ground that the court, having general jurisdiction of all cases of prize and forfeiture, might by common consent waive the forms required in adverse proceedings when Admiral Porter was willing to dedicate as prize-money, for the benefit of the officers and men of his squadron, money which he had on deposit in his own name, and no doubt then believed by all parties to be his own property, rightly and legally acquired; and this, too, without conflicting with that general principle of law that courts cannot acquire jurisdiction by consent of parties. Whether or not that view was correct is immaterial in this case.

Conceding that the proceedings in the district court of the District of Columbia, by recitals therein contained, carried with them notice to the Treasury officials that the decree was extrajudicial, and that the money was erroneously held and decreed to be prize-money, still there ivas nothing- therein to give them notice that it -was the proceeds of captured and abandoned property, since the Act of March 12, IS63, in terms, provided for the payment into the Treasury of such money only through Treasury agents, and did not put those officials on their guard to look for it in the decrees of prize courts. On the contrary, the notice to them was no more than that Admiral Porter, in his generosity and magnanimity, voluntarily contributed to the fund deposited for the benefit of captors his own money, duly and legally awarded to him as informer. But whatever the notice was or might have been, if the Treasury officers had lookedinto the proceedings thoroughly, I am not prejiared to hold that the United States are chargeable with such notice so laid before public officers whose duties are prescribed and limited by law, and in the absence of any statute provision on the subject of notice applicable to such a case.

It is true that now, in this court, by means of witnesses and the efforts of the Attorney-General’s Office, the money is traced through the various changes to which it was subjected into and out of the public Treasury, and no doubt with more witnesses, and more litigation it might be further traced even beyond the hands of the hundreds of officers and men of the Navy to whom it was distributed. But when.received and paid out by the Treasury officials no witnesses were or could have been called and sworn, no adverse claimants or counsel appeared to press their views, and the money had no ear-marks penetrating through the several vails which obscured its origin. It was then, and not afterwards, by the dim light of that day, and not by the noonday sun of this, that the rights and liabilities of the parties became fixed.

It is a matter of familiar history that large amounts of money were paid in and out of the Treasury as prize-money to captors ■and as shares to informers upon the decrees of Federal courts, and if the defendants are to be held liable for all the errors of those courts in the proceedings upon which the decrees were founded, and made to pay over again money which they have paid out upon the same decree as that bj^ which they received it, without notice of any adverse claim thereto, simply because the owners of captured and abandoned property are able to trace into the mass of money so received and^paid out the proceeds of their property, a liability will be established which, it seems to me, was not contemplated by Congress in passing the Captured or Abandoned Property Act, is not within the reasonable construction, as it certainly is not within the language, of that act, and which would be fraught with peril to the due administration of the Treasury Department.

The Captured or Abandoned Property Act was an act of grace and favor, passed in sympathy for the loyal people in rebellious States, Avho, being inhabitants of rebel territory, were in law rebel enemies. The Government might have confiscated all their property, or, by the more rigorous rules of warfare, might have seized and held it all as booty. Congress relaxed the harsher laws, and undertook to make the Government a trustee for the residue of tbe proceeds of tbeir property, captured or abandoned, which reached the Treasury in the maimer provided by that act to which they could establish their right. This threw upon the claimants all losses by the accidents to which the property and the proceedings might be subject, and gave to them only the right to recover such moneyas the United States might actually receive and hold as trustees. The records of this court furnish abundant evidence that large quantities of property captured and seized by officers of the United States were so disposed of that the money never reached the Treasury, and yet the defendants are not held liable therefor. (Ross v. The United States, 92 U. S., 281.) And I am unable to see how they can be held liable when, as in this case, the loss occurred through the decree of the district court in Illinois, talcing part of the proceeds, turning it into another channel, where it lost its identity and came into the Treasury under another name, was credited to another fund, and was paid out as received, without notice of any other claim thereto.

A case under the Captured or Abandoned Property Act is very much like an action of assumpsit for money had and received,, in which, when maintainable, the defendant is frequently said by the courts to be trustee of the money for the plaintiff, precisely as the Supreme Court has often called the United States trustees of the proceeds of captured and abandoned property for the loyal owners. And we are sure that no adjudicated case can be found in which it has been held that such an action could be maintained against one who, having received money on deposit from another as his own property, has paid it out as he received it, to the same party, or on his order, without notice of any adverse claimant thereto, simply upon proof that the depositor wrongfully obtained the same from the plaintiff.

In Town of Verona, v. Peckham et al. (66 Barb., 103) it is laid down, in language quite applicable to the present case, that although money may have passed into the hands of an individual in a Avay not authorized by law, yet if it is given him to be applied to a specific purpose, and he has so applied it, he cannot in equity and good conscience be called upon to refund it.

I may add, as to the amendment of the district attorney to the libel in the district court of Illinois striking out the first allegation therein, my opinion is that he intended, and the effect of the amendment was, to strike out what may be called tbe first count therein, tbe allegation that “tbe said cotton was purchased in a district, or part of a district, or part of tbe Dnited States wbicb before said purchase bad been declared to be under insurrectionary control by tbe President of tbe Dnited States, and was proceeding from said district or part of tbe Dnited States to another district or part of tbe Dnited States'which bad not been so declared to be under insurrec-tionary control, contrary to tbe Act of July 13,1861, and tbe proclamation of tbe President of August 16, 1861,” leaving tbe libel to stand and tbe judgment to be founded on tbe second count; tbe allegation added at tbe time of filing tbe bbel, that “tbe said property belongs to a person now in armed rebellion against tbe Government of tbe Dnited States,” under tbe Act of July 17,1862 (12 Stat. L., 590). It is with this view that I concur with my associates in bolding that tbe claimant is entitled to judgment for $12,680.20.

Nott, J.,

dissenting:

I agree with tbe opinion of tbe court as to tbe construction given to the Abandoned and Captured Property and tbe Confiscation Acts, and as to tbe right of tbe claimant to recover tbe proceeds of bis property now in tbe Treasury, and with tbe opinion of Mr. Justice Richardson as to tbe merits of this particular case ; but I am also of tbe opinion that tbe court is without jurisdiction to bear and determine a suit under tbe. statute for a fund wbicb is neither actually nor constructively in tbe Treasury, and this for tbe following reasons:

I. Tbe suit is not of tbe nature of an action of indebitatus assumpsit nor of any action at law. Tbe position of tbe Government under tbe Abandoned, or Captured, Property Act (12 Stat. L., p. 820) is that of a trustee in equity, irresponsible for tbe acts of bis agents who assist him in administering tbe trust. Tbe cause of action is ex mera gratia; no consideration passed to tbe Government; tbe property was not taken for public use tbe custody of tbe property after capture was for tbe benefit of tbe owner ; no implied contract arises from tbe transaction ; no personal guaranty against losses can be predicated against tbe trustee either from tbe terms of tbe statute or tbe natur<y of tbe trust. (Wylie’s Case 6 C. Cls. R., 295; Cone’s Case 8 id., 329; Bynam's Case, 8 id., 440; Thomas' Motion, 12 id., 273; Haycraft’s Case, 22 Wall., 81.)

II. The judgment to be rendered for this diverted trust fund must be satisfied either out of the captured property fund remaining in the Treasury or out of moneys appropriated by Congress for the ordinary judgments of the court springing out of the obligations of the United States as contractors.

As to the former :

By the decision of the Supreme Court in Klein’s Case (7 0, Oís. R, 240) it was settled that “under the Abandoned or Captured Property Act” “the government constituted itself the trustee for those who were by that act declared entitled to the proceeds of captured and abandoned property and for those whom it should thereafter recognize as entitled”; that “the title to the proceeds of the property which came to the possession of the Government by capture” “was in no case divested out of the original owner,” except such as was used for carrying on war; and that it remains with the Government itself to determine whether proceeds still in the Treasury shall be restored to the outstanding owners or not. Such being the status of the fund, it would be contrary to equity to take one man’s money to pay another man’s judgment; and the fact that the trustee still has somebody’s money in its possession gives the court no power to decree payment of the claimant’s losses out of trust-money belonging in equity to other persons not before the court.

As to the latter:

In the absence of legislation assuming such losses, and in the absence of a contract express or implied imposing an obligation upon the Government, the court is without jurisdiction to render a judgment which will hold the Government to a personal responsibility in the matter, and make it respond in damages payable out of moneys derived from taxation, and appropriated for the payment of its legal debts.

III. The distinction between this case and Brown’s (6 C. Cls. R., 171) and O’Grady’s (10 id., 134, 22 Wall., 641) is that there the Government withheld moneys which had been decreed to be the claimants,’ and by so doing became liable on an implied contract as for moneys withheld and applied to its own uses and purposes; while here the diverted fund was applied to no use or purpose of the Government, but was paid away through a mistake of an officer for whose errors tbe Government as trustee reaped no benefit, actual or constructive, bad given no guaranty, and assumed no liability.

Tbe distinction between tbis case and Sevier’s (7 C. Cls. B., 587) is tbat there tbe decision came before tbat of tbe Supreme Court in Klein’s Case, and consequently rested upon what we must now regard as a false premise, viz, tbat tbe property in all cotton passed absolutely by capture to tbe Government, with an equitable reservation in tbe nature of a compact in favor of those few persons who, adhering to tbe compact, never gave .aid or comfort in fact to tbe rebellion. Upon tbat premise, it was properly held tbat tbe Government, not being trustee for .all owners, could not evade tbe obligations of its compact to pay a loyal claimant tbe proceeds of bis property by setting up tbe mistakes or negligences of its law officers.  