
    Martin et al., Assignees of Coté, v. The United States.
    
      On Demurrer.
    
    
      'The claimants as assignees of Coté, bring the action in their own names. The ground of the action is that Coté was the owner of cotton captured at Charleston, subsequent to which he has assigned his property and interest in the cotton and in the proceeds thereof, now in the treasury, to the claimants for the payment of certain debts. The question is, whether a claim under the “ captured and abandoned properly act” (12 Stat. L., p. 820) may be assigned, notwithstanding the act of 26i/t February, 1863, (10 Stat. L., p. 17,) and the act of 29th July, 1846, (9 Stat. L., p. 41.)
    I. All transfers and assignments of claims against the United States, whether absolute or conditional, whatever be the consideration therefor, and all powers of attorney for receiving payment thereof, are absolutely null and void unless they are executed in the presence of two witnesses ‘ ‘ after the allowance of such claim, the ascertainment of' the amount due, and the issuing of a warrant for the payment thereof,” (act 26th February, 1853,10 Stat. L., p. 17;) and these restrictions of the act of 1853 are not repealed by the provisions of the act 3d March, 1863, (12 Stat. L., p. 765,) reorganizing the Court of Claims.
    IL An assignment or transfer of a claim arising under the “ captured and abandoned property act, (12 Stat. L., p. 820,) executed before a judgment is recovered, is void under the act 26th February, 1853, (10 Stat. L., p. 17.)
    III. Captured property after the capture is complete by 24 hours’ undisturbed possession, or by being carried into a place of safety, is divested from the owner and becomes vested in the captor under the act 17th July, 1862, (— Stat. L., p. —O the title vested in the United States conditionally, subject to be defeated by a decree in favor of the owner, but under the “captured and abandoned property act,” (12 Stat. L,, p. 820,) thetitle of the United States is made complete and indefoasible, and there is no resultant interest in the thing as specific property; hence an assignment of captured cotton or the proceeds thereof in the treasury, is simply an assignment of an unsettled pecuniary demand against the United States, and comes under the cases of Sines, 1 C. Cls. R., p. 12, and Pierce, id., p. 270.
    IV. A statute is not repealed by a subsequent act unless the latter uses apt and appropriate words for that purpose, or unless there is such a direct conflie? and absolute repugnancy between the two that both cannot stand together; hence, where the first statute declares an assignment or transfer of “any claim shall be absolutely null and void, ” and the second merely provides that a claimant in the Court of Claims shall show by affidavit, annexed to his petition, that “ no assignment or transfer of said claim or any part thereof, or any interest therein, has been made except as in said petition stated,” and that “it shall be set forth in the petition that the claimant, and the original and every prior owner thereof, when the claim has been assigned, has at all times borne true allegiance,” &c., the latter act does not, by implication, repeal the clear and positive words of the former.
    The Solicitor for the defendants.
   Casey, C. J.,

delivered the opinion of the court:

The claimant named, and a large number of other individuals, and of various firms, bring this suit jointly. They set forth as the ground of their claim, and upon which they base their right to recover, that one Elie Cote, late of the city of Charleston, South Carolina, in 1865 was the owner of 75 bales of upland cotton ; that upon the capture of Charleston by the forces of the United States in February, 1865, the cotton was seized by the officers of the United States army, and shipped to the treasury agent at New York; and that the cotton was sold by him, and the net proceeds paid into the treasury of the United States; that on or about the 6th of May, 1865, Cotd, by an instrument of writing, duly executed and set forth, and a copy thereof annexed to the petition and made part of the case, assigned and transferred all his interest in the said cotton, and the proceeds thereof, to the claimants, for the payment of certain debts due by said Ooté to them respectively.

To this petitiou the Solicitor for the United States demurs, and, upon the argument, assigns for cause of demurrer that this being at the time of the assignment a claim against the United States, its transfer in the mode attempted is prohibited by the first section of the act February 26, 1853, (10 Stat., 17,) entitled “An act to prevent frauds upon the treasury of the United States.” That section isas follows: “That all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or any interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities, for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void unless the same shall be freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof:” So the act of July 29, 1846, (9 Stat., 41,) enacts, “ that whenever a claim on the United States aforesaid shall hereafter have been allowed by a resolution or act of Congress, and thereby directed to be paid, the money shall not, nor shall any part thereof, be paid to any person or persons other than the claimant or claimants, his or their executor or executors, administrator or administrators, unless such person or persons shall produce to the proper disbursing officer a warrant of attorney, executed by such claimant or claimants, executor or executors, administrator or administrators after the enactment of the resolution or act allowing the claim; and every such warrant of attorney shall refer to such resolution or act, and expressly recite the amount allowed thereby, and shall be attested by two competent witnesses, and be acknowledged by the person or persons executing it before an officer having authority to take acknowledgment of deeds, who shall certify such acknowledgment, and it shall appear by such certificate that such officer, at the time of the. making of such acknowledgment, read and fully explained such warrant of attorney to the person or persons acknowledging the same.”

Then the seventh section of the act of February 26,1853, (10 Stat., 171,) provides “that the provisions of this act, and of the act of July 29, 1846, entitled ‘An act in relation to the payment of claims,’ shall apply and extend to all claims against the United States, whether allowed by special acts of Congress, or arising under general laws or treaties, or in any other manner whatever.”

If these acts of Congress are applicable to such claims, and when prosecuted m this court, it must be obvious that the assignments are invalid, for by the express terms of the act of 1853, all such transfers and assignments, however made, and upon whatever valuable or meritorious considerations they are based, are made “absolutely null and void,” unless made after the allowance of the claim. This is so clear that no amount of argument or illustration could ,add to the cogency of the simple and direct language of the enactment; but it is insisted that these acts do not apply to cases litigated in this court, because—

1. The acts were intended to apply only to claims allowed by the executive departments.

2d. That even if they applied to proceedings in this court, they are repealed by the provisions of the act of March 3, 1863, reorganizing this court.

At the date of the passage of these acts, it is true, this court was not in existence. Nor was there any other court in which the United States could be directly sued on any account. The only mode by which the respective rights of the government and one of its citizens could be brought to the test of judicial arbitrament, was by the exercise of the right of reclamation or set-off, under the act of 1797, by a party having government funds in his hands when sued by the United States ; or by such incidental proceedings against officers in certain excise and revenue cases, as Were provided for by law; or by the creation of special tribunals for certain classes of cases, as Congress saw proper from time to time.

Yet this consideration is not sufficient of itself to restrain the operation of these acts, or to prevent them applying in all their force to the claims prosecuted here, if the language of the acts is sufficiently broad and comprehensive to embrace them. That it is so, can admit of little doubt. The prohibition is against the assignment of “ any claim upon the United States, or any part or share thereof, or any interest therein.” Whatever, therefore, is a claim against the United States, is embraced in this interdiction. That the matter now in suit is such, can scarcely be the subject of a dispute. By virtue of certain military orders, the property of Coté was seized jure belli. By the fair interpretation of the acts of Congress relating to the seizure of property of supposed rebels, the property vested in the United States’ upon the capture being complete. This is the doctrine with regard to all property lawfully taken in war, whether taken upon the land or the sea.

The title of the owner, so soon as the captor has gained a firm possession, is considered as divested; and this usually is considered as occurring after twenty-four hours’ undisturbed possession by the captor, or after the booty has been carried into a place of safety, infra prœsidia. Gro. Lib. III, Cap. 6, § 3 ; Cap. 9, § 14. Klüber, Droit des Gens moderne de l’Europe, § 254. Vattel, t. 3, ch. 14, § 196 ; ch. 14, § 209. Hoefter, Das Europaisehe Yolkerrecht, § 136. The right is acquired not so much in virtue of the seizure of it as enemy’s property, as by virtue of the sovereign authority under which such seizure is made. Per Story J., in The Emulous, Gall., 569. We refer also to Stewart v. The United, States, 1 C. Cls. 113, where we have fully expressed our views on this point, and cited the leading authorities.

So it will be seen, on recurring to the various acts of Congress for seizing and confiscating the property of rebels, that the property vested unconditionally and irrevocably in the United States after the passage of the act of March 12, 1863. Before that, under the act of 17th July, 1862, the title though vested in the United States conditionally, might be considered as in abeyance, and their right liable to-be defeated and divested by a decree in favor of the owner, by the court before whom it was directed to be tried, and which decree would-be followed, as a matter of course, by an order of restitution. That would necessarily divest the inchoate or defeasible title acquired by the capture. But this whole system was changed by the act of March 12, 1863. ' That made the title of the United States complete and. indefeasible by the capture. The property vested at once in the United States. There was no officer, agent, department or tribunal of the United States authorized in any manner to divest that title, or restore that captured property to the owner. The act is explicit in directing how the property shall be dealt with; the persons by whom, and the manner in which it shall be disposed of, and that the net proceeds of its sale shall.be paid into the treasury of the United States. These provisions supersede, and take the place of the prior mode of trying the legality of the capture, and the validity of the title the United States acquired thereby. These views are sustained by the very able opinion of Mr. Chief Justice Chase, in Mrs. Alexander's cotton, 2 Wallace, 404. If, therefore, the title became vested in the United States by this capture, it must be obvious that it could be divested only by some mode provided by law. Congress alone has the right to provide for the disposition of the property of the United States of every kind and description, and when they have so provided, all other methods than that designated become illegal and are wholly void.

If these views are correct, and this property of Mr. Coté even remained unsold in the hands of the United States, he no longer had any interest in the property, or claim to the title. There was even no reversionary or resultant interest in the thing as specific property, on which his sale or assignment could operate. A claim to the net proceeds was all that remained to him. And the instrument presented must be regarded simply as an attempt to assign or transfer an unsettled pecuniary demand or claim against the United States. This, we have already decided in the cases of Sines v. The United States, 1 C. Cls. R. 12, and Pierce v. The United States, ibid. 270, is forbidden in the strongest terms by the act of February 26, 1853.

We do not think, after a careful review of our former decisions, that the argument that the law is confined to claims settled at the departments is entitled to any great weight. The act is made to operate directly on the claims themselves, and not as limitations on, or definitions of, the power of those who are to adjust them, or adjudicate upon them. The statute says that such an assig-nment of “ any claim” “ shall be absolutely null and void.” What right can a judge or a court have, more than a Secretary or a Comptroller, to say that it shall be valid? It is not the act of any particular officer or department, or tribunal in connection with the adjustment and payment of a claim that is declared to be null and void. The act affects the assignment itself, made in contravention of its provisions. It takes from it every vestige of virtue, the last spark of vitality, and leaves it totally defunct. No court, any more than an executive functionary, can animate or breathe into it the breath of life. The law says it shall he void ; who can say it shall be valid ?

Let us see whether these acts have been repealed, so far as this court is concerned. The affirmative of this position is argued from certain expressions used in the act of March 3, 1863, reorganizing this court. The 12th section provides that the petition of a claimant shall be verified by an affidavit, stating “ that no assignment or transfer of said claim, or any part thereof, or any interest therein, had been made, except as in said petition stated; ” and “that in order to authorize the court to render a judgment in favor of any claimant, if a citizen of the United States, it shall be set forth in the petition that the claimant and the original and every prior owner thereof, when the claim has been assigned, has at all times borne true allegiance,” &c. These provisions, it is alleged, not only recognize the right of an assignee to sue in this court, but prescribe the manner in which his claim shall be presented, and some of the conditions upon which a judgment may be rendered in his favor. Moreover, it is alleged that these provisions are inconsistent with the application of the acts of 1853 and 1846 to eases litigated in this court, and that the latter enactment will overrule the prior one and operate as an implied repeal.

These suggestions are not without their force. That the draughtsman of the latter statute may have had in his mind an adjudication in favor of an assignee is not at all improbable; that he did not at the same time have his attention directed to the stringent prohibitions of the act of 1853 is quite as likely; yet either or both of these being the fact would not change the law, unless he has used apt and appropriate words for that purpose, or unless there is such direct conflict and absolute repugnancy between the two acts that both cannot stand together.

Dwarris on Statutes, 532, says, repeals by implications are not favored in the law. Sedgwick on Stat. and Const. Law, 125 : “An act of Parliament may be repealed by the express words of a subsequent statute, or by necessary irresistible implication.” Dwarris, p. 530. So the Supreme Court of the United States, in the case of Wood v. The United States, 16 Pet., 362, says: “The question then arises whether the 66th section of the act of 1799, C. 128, has been repealed, or whether it remains in full force. That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the more narrow inquiry whether it has been repealed by necessary implication. "We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of tbe cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary; but there must be a positive repug-nancy between the provisions of the new law and those of the old, and even then the old law is repealed only pro tanto to the extent of the repugnancy.” The same doctrine is maintained in Daviess v. Fairbairn, 3 How., 643.

Another rule equally well established is, that a general statute without negative words cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. 6 Rep., 19; Dwarris, 532; 6 W. and S., 209 ; 10 Barr., 442; Brown v. County Com., 9 Harris, 43; 11 Rep., 63; Dyer, 347; 15 East., 377; 24 Pick., 296; 5 Hill, 221.

Is there any direct repugnancy or irreconcilable inconsistency between tbe two acts under consideration 1 Certainly not. On the contrary, there is no conflict whatever. Both may stand and neither infringe on the other, for it will be observed that the first provision quoted requires the party to state in his petition the interests in said claim, and whether any assignments have been made only by implication. There is no enacting clause that such assignments shall be set forth and declared upon, but the claimant, in his verification of the petition, is required to swear that no other assignment, &c., has been made, “except as in said petition stated,” and because it requires that the original and every prior owner, where the claim has been assigned, shall have borne true allegiance, &c., so that to reach the desired conclusion you have to draw the implication from another implication as shadowy and doubtful as the final one. This would be carrying the rule of implied and constructive repeal beyond all due and proper limits. So on the other rule, the statute prohibiting assignments is a special and particular statute, relating to that distinct subject-matter. It makes clear, positive, and definite provisions on the subject. Its prohibitions are direct, explicit, and peremptory ; while, on the other hand, the act of 1863 is a general law for the reorganization of a court to hear and determine claims against the government. Such á particular and positive statute as the former is never repealed by the general provisions of such as the latter, unless it is specially referred to in that statute, its enactments supplied or expressly repealed.

These provisions in the act of 1863, so far from overturning the act of 1853, entirely harmonize with it when we construe the latter act, not as sanctioning the assignments forbidden by the former, but as requiring the party who brings the suit to disclose upon the record the whole origin and title of the claim. This was necessary in view of the provisions relating to set-off and fraud. It might also be necessary in relation to the right to call for books and papers, or to have discovery from a person other than the legal plaintiff on the record. Such might be the ease, too, where the legal party in whose name the claim is presented should be a mere naked trustee, or an agent not having disclosed the name of his principal. In all these cases, and many others that might be named, it would be important that the whole history of the claim should be fully disclosed. That would be important if for no other reason than to apprise those appearing for the United States of the persons and circumstances through and of whom any defence existing might be ascertained. In every light in which we can view these statutes, we think it would be unsafe and unwarranted to hold that the direet and positive enactments of the one are repealed, superseded, or supplied by the vague, indirect, inferential provisions of the other. We give to these latter the full scope and effect to which they are entitled, by construing them as in pari materia with the former statutes, and to be interpreted in subordination to, and in accordance with, the wise and salutary enactments of the acts of 1846 and 1853. These views result in sustaining the demurrer, the claimants to have thirty days in which to file an amended petition in accordance with this opinion, on failure of which the petition will be dismissed.

Loking, J.,

dissenting:

I dissent from the opinion read because I think that the act of 26th February, 1863, (10 Stat. 170,) is applicable only at the treasury, and has no reference to litigation here.

It is certain that under this act of 1853, an assignment made as the act prescribes, viz : by a capable and understanding assignor, in the presence of two witnesses and certified by a magistrate, and made after the claim has been allowed at the treasury, the amount due ascertained and a warrant for its payment issued, is the only assigment of a claim that an officer of the treasury can admit or recognize, and that if he admits any other he violates the statute. And if the act of 1853 applies to this court, then this court cannot lawfully admit or recognize any other assignment than one made as the act prescribes; and if it should admit or recognize any other, then this court would violate the statute. The act is express that any other 'assignment than such as it describes “ shall he utterly null and void,” so that it could eonvey no right and create no equity, but would be merely an offence implicating all aiding and abetting it. If, therefore, the court should act upon such “null and void” assignment, by permitting the assignee to sue in the name of the assignor, or the assignor to sue for and in aid of theassignee, or should render a judgment or grant a certificate, according •to such suit, or should directly or indirectly enforce, sanction, or recognize the title of an assignee under such illegal assignment, the court would be guilty of a maladministration of law proved by its records.

And it is no answer to this to say that courts of common law permit an assignee to sue in the name of the assignor, or that courts of equity permit an assignee to sue in his own name, because no statute forbids them so to do. But no court of law or equity ever acted upon or sanctioned an assignment declared “ absolutely null and void ” by a statute it admitted to be obligatory upon it.

It is clear that if the statute of 1853 is applicable here it would confine this court, as it does the treasury, to assignments made as the statute prescribes. Then I think it is equally clear that such assignments could never be litigated here. For by the act every assignment is “ absolutely null and void,” unless it be of a claim allowed at the treasury and for the payment of which a warrant has issued. The necessary consequence is that there could be no assignment of anything more than the precise amount allowed at the treasury and ordered to be paid. The original owner of a claim could assign nothing more; the assignee could acquire nothing more. And then the only right of the assignee, under such assignment, would be to go to the treasury and get his money; and he could not, instead of doing so, come here and litigate the very claim for the payment of which he had a treasury warrant in his pocket; for, in such case, the United States would not be in default to him, for their obligation to him is not to go in search of him, but to pay him on his warrant when he presents it at the treasury. And if such assignee could come here we could give him nothing as good as his treasury warrant, for our judgment and certificate are not tantamount to that, but only the uncertain means of obtaining the same thing.

And if the provisions of the act of 1853 are practicable at the treasury and are impracticable here, then they show that the act was intended for the treasury and not for this court.

Claims against the United States are adjusted and settled at the treasury, but they are not litigated there and cannot be, while our duty is exclusively the litigation of claims. These' different duties do not admit of tbe same rules; and they present entirely different subjects for legislation. And where statutes relate to different subjects no question of repeal can arise upon them, for like parallel lines they do not touch each other. They are not in pari materia, and cannot be construed together.

It is said the words of the statute of 1853, viz: “All transfers and assignments hereafter made,” &e., are general, hut it is the common rule of construction that the general words of a statute are to be confined to its subject; and it is also a rule of construction that the subject of a statute is denoted by its title, (3 W. 610, United States v. Palmer,) and the title of the act of 1853 is, “ An act to prevent frauds upon the treasury of the United States,” and it is thus applied to the treasury by its title, as well as by its provisions, which are applicable there and, I think, nowhere else. And our jurisdiction is not to be sought in a statute enacted for the treasury and before this court was created, and without reference to it, or to litigation anywhere; but it is to be sought in the acts establishing and organizing this court, and the language of these is as general as that of tbe act of 1853; and their purpose and policy are as broad as their language, for claims assigned are as proper a subject for judicial investigation as claims not assigned.

The act of 1855 (ch. 122,10 Stat. 612) is entitled “An act to establish a court for the investigation of claims against the United States,” and this denotes its subject to be the judicial investigation of such claims, and not merely the prevention of frauds in an executive department. Then its first section, which limits our jurisdiction, makes that of “ all claims” founded as it specifies ; and these words “ all claims” include all assigned claims just as much as all claims not assigned.

Then the twelfth section of the act of 1863, ch. 81, (11 Stat., 30) provides for the practical matters of procedure and of judgment here. It first requires that the petition should state all assignments of the claim or of any part thereof or interest therein, and also that no other assignments have been made than those specified. Thus it makes it sure that all equitable as well as legal interests should be produced to the court that it may protect them and the United States, according to our jurisdiction at law and equity. The section then proceeds and provides that to authorize the court to render a judgment, the record shall show the allegiance of “ the claimant, and the original and every prior ovmer thereof, where the claim has been assigned.” Thus the section specifies the requirements for, and makes an express and distinct provision for, judgments bere, “ where, the claim has been, assigned,,” and, therefore, for the hearing and decision here of assigned claims.

And these full and precise directions as to assigned claims in the twelfth section of 1863, (ch. 92,) show that assigned claims were the object of direct attention and careful provision by the legislature. And they are to be referred to, and they construe the words “ all claims ” in the first section of the act of 1855, (ch. 122,) limiting our jurisdiction, for the two acts must be construed together; and then they make a system for this court complete in itself, by its provisions for claims assigned as well as for claims not assigned, and moreover for fraudulent claims. And it is not and cannot be claimed that there is anything in their titles, provisions, purpose, or policy that confines this court as the act of 1853 confines the officers of the treasury to assignments of claims allowed there and ordered to be paid, and thus removed from dispute and from litigation here.

For these reasons and others stated by me when the question was before the court, in the ease of Sines v. The United States, 1 C. Cls. R. 12, I am of opinion that the act of February 26,1853, is not applicable here, and therefore I think the demurrer not sustained on the ground on which it has been argued; and that as this is a court of equity as well as of law and has no forms, that this suit is well brought in the names of the claimants, the record showing their title. But as the assignment of Ooté annexed to the petition shows that he has a resulting interest, and by the rule in equity should be a party to the suit; and as I think the petition is defective in not averring that the claimants or Ooté have never given aid to the rebellion, which the statute of 1863, chapter 92, requires, beside the affidavit of allegiance, I think the case should be remanded to the docket, that the necessary parties and amendments may be made, and the United States be allowed an opportunity to traverse the amendments traversable.  