
    GOOCH’S CASE.
    Mary Ann and Nathaniel M. Gooch v. The United States.
    
      0% the Proofs.
    
    
      The claimants enter into an ante-nuptial contract which provides that the wife shall hold all property, real and personal, tohich she possesses before marriage or may acquire ¿luring coverture. The marriage is m Alabama; the subsequent domicile in Mississippi. The husband talces charge of hw plantation and business. In 1863 he sells cotton stored on the plantation to the . Confederate Government and is paid in bonds. It is seined by a Treasury agent as Confederate cotton in July or Axtgust, 1865. The cotton agent in Neto Torlc pays over proceeds of cotton as late as November, 1867, This action to recover the- proceeds or value of the cotton seized is not brought until 1873.
    I. Mississippi continued to "be enemy territory until April 3, 1863.
    II. So long1 as Mississippi continued to be enemy territory, all residents thereof were enemies, and-private property found there was enemy property and a legitimate subject of capture.
    
      III. Aside from the right given hy the Abandoned or captured property Act (12 Stat. L., 820), no one can maintain an action against the government on account of property seized or talren hy any officer or agent in the insurrectionary district while the state of war continued.
    IV.' If a Treasury agent, authorized to collect cotton belonging to the Confederate Government, seized cotton which was in fact private property, there arose on the part of the government no implied contract to pay over the proceeds in the Treasnry as money had and received to the use of the owner.
    
      The Reporters' statement of tbe case:
    The following are the facts of this case as found by the court:
    I. In the year 1858 the claimants were married, in the State of Alabama, and thereafter lived in Noxubee County, Missisippi, where they still reside.
    II. Before their marriage they signed and sealed a marriage contract, which was proved before the judge of the probate court of Madison County, Alabama, and recorded in his office on the 19th of October, 1858, and was recorded also in the office of the clerk of the chancery court in and for the county of Noxubee, Mississippi, on the 16th of December, 1858, and is in the words and figures following, to wit:
    “Articles of agreement intended, made, and entered into between Nathaniel M. Gooch, of the county of Madison, and State of Alabama, of the one part, and Mary Ann Selleck, of the said county and State, of the other part, as follows:
    “Whereas a marriage is shortly to be solemnized between the said Nathaniel M. Gooch and Mary Ann Selleck, in consideration thereof it is therefore coMvenanted and agreed by and between the said parties to these presents, in manner and form following, that is to say, the said Nathaniel Gooch by these presents renounces all claim, right, title, or interest to any part of the estate, real, personal, and mixed, which the said Mary Ann Selleck holds in her own right, or has acquired by descent or otherwise, or may hereafter acquire during coverture, wheresoever situated, in this or any other State, and renounces also all right, title, or interest to the rents, proceeds, issues, and income of the aforesaid. That the said Mary Ann Selleck is to retain her property, of what nature soeyer, real, personal, or mixed, money, choses in action, liabilities, &c., derived, as aforesaid, in any manner whatsoever, to her own sole and separate use and benefit, together Avitli all the proceeds, rents, issues and income thereof, free from the control, liabilities, or interference of the said Nathaniel M. Gooch, and that the said Mary Ann Selleck have full power at any time to dispose by deed, will, or otherwise, signed by herself, the whole or any portion of her property aforesaid.
    “ In testimony whereof the said parties aforesaid have hereunto set their hands and affixed their seals in the presence of the subscribing witnesses this the eighteenth day of October, 1858.
    “Nath’l M. Gooch, [seat.'
    “Mary Ann Selleok. [seal.'
    “ Witnesses:
    “ Jas. L. WaticiNS.
    “John Patton.”
    III. The claimants, after taking up their residence in said Noxubee County, lived upon a plantation which belonged to the said Mary Ann Gooch before her marriage with said Nathaniel M. Gooch, and which was cultivated by slaves which also belonged to her before said marriage; and the said Nathaniel M. Gooch had no right, title, or interest in said plantation or slaves.
    IY. After said marriage the said Nathaniel M. Gooch, with-the knowledge and consent of his said wife, acted as her agent in connection with the working of said plantation and her business generally.
    Y. On the first day of January, 1863, the said Mary Ann Gooch was in possession of 185 bales of cotton, which had been raised on her said plantation, by the labor of her slaves, under-the oversight and direction of her said husband, and were then stored on said plantation.
    YI. On the said last-named day the said Nathaniel M. Gooch sold the said 185 bales of cotton, then marked “N. M. Gooch,”' to the so-called Confederate States of America, and received the value of the same in bonds of said Confederate States to the amount of $12,783; and he thereupon signed and delivered to an agent of said Confederate States the following paper:
    - “ 185 Bales. Aggregate weight 85,220. A 15. $12,783.00.
    “State oe Mississippi,
    “ County of Noxubee:
    
    “ Maoon Town, or Post-Oeeice,
    
      “Janhj 1,1863.
    “ The undersigned having sold to the Confederate States of' America, and received the value of same in bonds, one hundred and eighty-five Bales of Cotton, marked,- numbered, and classed as in the margin, which are now deposited at my plantation,. hereby agrees to take due care of said cotton whilst on his plantation, and to deliver the same at his own expense, at Brooksville in the State of Miss., to the order of the Secretary of the Treasury, or his Agents or their Assigns.
    “N. M. Gooch.”
    VII. From the general agency of "said husband for the said wife, and from their continued residence together as husband and wife, on the plantation on which the cotton was raised and stored, before and at the time of and after said sale,_ and until the seizure of said cotton, the court finds the fact to be that the said sale was made with the knowledge and consent of said Mary Ann Gooch.
    VIII.' At the time said sale was made and said papers signed, the agent of said Confederate States signed the following certificate, underneath the paper signed, as aforesaid, by said Nathaniel M. Gooch, to wit:
    “JAN’Y 1st, 1863.
    
      “ The undersigned, as Agent of the Government, certifies that the within Cotton has been examined by him or by a competent judge, and that its character will rank according to the commercial scale as Middling, and also that the weights and marks are as described — the Cotton being in good merchantable order and safely stored in a covered building.
    “ The undersigned certifies that the price agreed upon is a fair market price at the present time.
    “M. M. Bkooks, Agent.”
    
    IX. On the 8th day of May, 1865, one Harrison Johnson was, as stated in the amended petition, appointed by the Secretary of the Treasury of the United States an assistant special agent of the Treasury, to secure and collect in the said county of Noxubee, and three other counties in Mississippi, cotton which had been purchased by, and was then held on account of, the said Confederate States of America; and under the authority of that appointment the said Johnson, not later than the 2d day of August. 1865, took from the plantation of said Mary Ann Gooch, as the property of said Confederate States of America, the said 185 bales of cotton; which, in rebaling, were reduced to 182 bales.
    X. What specific disposition was made by said Johnson, or any other person, of the said 182 bales does not appear, except that they made a part of 11,655 bales of cotton collected by him in the said county of Noxubee; and the said 11,655 bales formed a part of a total of 30,610 bales collected by Mm in tbe four counties named in said letter of Ms appointment.
    XI. Of tbe said total quantity of 30,610 bales, part were given to contractors; part were burned at Columbus, Miss., or seized by military authorities and not recovered from them t. part were sold by tbe agent and used to pay expenses; part were released to tbe Mobile and Ohio Baüroad Company; and part were released or burned at Memphis and Mobile,- and tbe remainder, to wit, 16,334 bales, were by said Johnson sent to. Simeon Draper, United States cotton agent in tbe City of New York, and were by him received and sold.
    XII. Tbe net proceeds of tbe sales by said Draper of said 16,334 bales were $1,588,882.16, being an average of $97.27 per bale; and tbe sales of tbe 16,334 bales were made at different times, beginning with Sep tember 8,1865, and ending with May 25,1866.
    XIII. Tbe net proceeds of said sales were by said Draper paid into tbe Treasury of tbe United States, but not specifically as tbe proceeds of said 16,334 bales. Tbe said Draper, between April 11,1865, and October 19, 1866, sold on account of tbe United States about 98,500 bales of cotton, including tbe said 16,334 bales; and he deposited either with the assistant treasurer of tbe United States at New York, or with tbe National Bank of Commerce, New York, United States depositary, and transferred to said assistant treasurer, proceeds of sales of cotton made by him; which deposits were made immediately after tbe sales, and were as follows, to wit:
    With tbe said assistant treasurer. 6,457, 781 82
    With tbe said National Bank of Commerce—
    October 26, 1865 . 1,911,037 05
    Decern ber 5,1865. 800, 000 00
    January 2,1866 . 700,000 00
    January 12, 1866...:. 500, 000 00
    April 13,1866. 500, 000 00
    May 12,1866. 21,112 55
    June 12,1866. 3,203 20
    Sejitember 1,1866. 896, 562 72
    “ “ . 3,437.28
    November 9,1866. 600,000 00
    June 8,1867. 65,000 00
    November 15, 1867... 27, 703 62 = 6, 028,056 42
    Total $12,485, 838 24
    
      XIV. The said sum of $6,457,781.12 was covered into the Treasury of the United States as follows:
    July 11,1865. 4,200,551 64
    October 25, 1865. 1, 678,164 56
    June 18, 1866 .. 579, 075 62
    $6,457, 791 82
    Anri of the said sum of $6,028,056.42 there was covered into said Treasury as follows: •
    December 16, 1865 1,911, 037 05
    March 8, 1866. 1,200,000 00
    June 30,1866. 1,300,000 00
    September 29,1866 896,562 72
    
      u u 3,437 28
    February 600,000 00
    • July 27, 1867. 65,000 00
    March 30, 1868.. -. 27, 703 62
    $6,003, 740 67
    XV. Of the 182 bales of cotton taken from the said Mary Ann Gooch’s plantation, 97 made a part of the 16,334 bales sold by said Simeon Draper.
    
      Mr. A. L. Merrimcm and Mr. 13. Lander for the claimant:
    If the property taken does not come within the provision of captured and abandoned property acts, then claimant is entitled to the proceeds of her cotton paid into the Treasury as money had and received. (Kelsey’s Case, 1 C. Gis. R., 374; BanJc Gases, 10 C. Cls. R., 514.)
    If, on the other hand, the seizure should be construed as coming within the acts relating to captured and abandoned property, she is entitled, under the statutes, as revised in 1873, to bring her suit in this court.
    
      Mr. Assistant Attorney-General Simons for the defendants:
    If the taking was lawful, or by color of law, it seems clear that the only remedy of the claimant was by suit under the captured and abandoned property act, which was not pursued.
    In any event, the taking was by color of law, and there can be no question that the claimant’s only remedy was under the 
      Act March 12,1863 (Act July 27,1868,15 Stat., 243; Bigee’s administrator v. Lovell, 1 Wool., 0. 01s. R., 117; Greenh Case, 10 O.- 01s. R., 466-474; Lamar v. Broione, 92 U. S., 187.)
    Claimant was a public enemy, and the taking was nondurn cessante hello. For suck injuries the sovereign cannot be made liable, unless it has expressly consented to give redress, and then only in the manner and to the extent conceded. (McLeod v. Callicot, Chase’s Decisions, 443; Haycraft's Case, 10 C. 01s. R., 95, and decisions supra.) It appears by the petition that claimant has in fact filed a petition under the act May 18,1872, and should be concluded by her own election.
    The action is barred by sec. 10, Act March 3, 1863 (12 Stat., 765). Such right of action, if any, as. the claimant has, independent of the captured and abandoned-property act, accrued when the cotton was taken, which the petition alleges was on or about August 2,1865, and the petition was filed May 15,1873.
   DkA-KB, Ch. J.,

delivered the opinion of the court.

This case was argued at great length on points which we do not feel called upon to decide, because, however we might rule on them, the judgment must be controlled by other considerations.

The petition having been filed nearly five years after the suppression of the rebellion, the case is not one tinder the Abandoned and captured property Act (12 Stat. L., 820).

The case rests wholly on the position that, an agent of the Treasury Department having taken the cotton of the claimant, Mary Ann Gooch, and the cotton having been converted by another agent of the department into money, which is in the Treasury, an implied promise arose on the part of the United States to pay her the proceeds of the cotton.

There is no foundation for any such implication. The cotton was taken in Mississippi, one of the insurrectionary States, while a state of war still existed there. (Lamar v. Browne, 92 U. S., 187.) In the State in which it was taken, that state of war continued until April 2, 1866. (The Protector, 12 Wall., 702.) Until that date Mississippi was, in law, enemy territory, and all residents thereof were enemies, and private property found there was enemy property and a legitimate subject of capture. (United States v. Anderson, 2 Wall., 404; United States v. Pad- elford, 9 Wall., 540; Haycraft v. United States, 22 Wall., 81; Lamar v. Browne, 92 U. S., 187.) No one whose property was taken there while the state of war existed could, without the express authority of an act of Congress, sue the United States on account of its taking. That authority was given by the abandoned and captured property act, in favor of such parties only as came within its terms and should prefer their claims in this court within two years- after the suppression of the rebellion. Aside from that act, no one could maintain an action against the government on account of property seized or taken by any of its officers or agents in the insurrectionary district (Haycraft’s Case, 8 C. Cls. R., 483, affirmed by the Supreme Court, 22 Wall., 81; Green’s Case, 10 C. Cls. R., 466), or against the officer or agent who seized or took the property, or to whom he delivered it. (Lamar v. Browne, 92 U. S., 187.)

These repeated decisions of this court and the Supreme Court leave not the least ground for this claim to rest upon. We therefore deem it needless to notice any other point in the case; but we have, purposely so framed the finding of facts as to leave the way open for the claimants to urge, in the appellate court, if they see fit to go there, the positions which were taken on their behalf at the trial here, and which we decline to pass upon.

The claimant’s petition is dismissed.  