
    CLARK & FULTON'S CASE.
    James S. Clark et al. v. The United States.
    
      On the Proofs.
    
    
      In December, 1864, a cargo of cotton is seized, by the military police on its arrival in Hew Orleans, thoughbronghtinundera,permitofthe President. The owners pay the acting provost-marshal-general $10,000 to procure from the officer in command his signature to the permit. The money is paid with the corrupt motive and purpose of procuring official action whereby their cotton shall be released. Subsequently the provost-marshal is arrested, the money seized and paid into the Treasury. The owners claim that the seizure of the cotton was illegal, and the payment of the money to procure its release of the nature of extortion.
    
    
      If money paid to a public ofiieer with the corrupt motive and purpose of procuring the official action of another officer was subsequently seized by the proper authorities, and is now in the Treasury, it cannot be recovered back, though the payment was made to procure the release of a cargo of cotton illegally or improperly detained by the officer. It was bribery under the Aot 2ñih February, 1853. (10 Stat. L., 170, § 6.)
    • The Reporters statement of the case:
    The claimants’ right to bring in cotton rested on the following permit of the President and argreement of the Secretary of the Treasury. These instruments, it was insisted on the trial, rendered the acts of the officers extortion, and relieved the payment from the vice of bribery.
    “ Treasury Department, October 20, 1864.
    “ J. S. Clark and E. Fulton allege that prior to the 2d day of duly, 1864, under authority of George S. Denison, special agent of the Treasury Department at New Orleans, they purchased in the parishes of East and West Feliciana, in the State of Louisiana, 3,435 bales of cotton, upon which they advanced the sum of $123,200 in United States currency, as part payment for the same, and became liable to pay the balance of the purchase-money.
    “That after purchasing and becoming owners of said cotton, and while in the act of moving the same to market for sale, they ascertained that by the passage of the act of July 2, 1864, they were prevented from proceeding with the shipment of said . cotton, or in any way interfering with the sain e, and it now remains at the points above named exposed to the depredations of guerrillas. They therefore ask that authority may be granted them to complete the transaction commenced and conducted thus far under the prescribed rules and regulations of the Treasury Department.
    “After full examination, and in view of the fact that the loyalty of the parties, is not questioned, and that there are no adverse claimants to said cotton known to the Department, authority is hereby given to the said J. S. Clark and E. Fulton to transport by way of New Orleans (where all Government fees and dues shall be paid before shipment therefrom) the cotton in question, provided they shall first present to the acting collector of customs at New Orleans the original authorities or permits uuder which they acted, or copies thereof certified by the officer with whom they are filed, with proof to his satisfaction that the cotton was actually purchased in good faith, under and by virtue of said authorities, and payment made and liabilities incurred as alleged ; and provided, further, that the ■said J. S. Clark and E. 'Fulton shall first execute to the satisfaction of the said acting collector at New Orleans a bond with sufficient security in the penalty of $250,000, conditioned that all fees and taxes, in any way due or accruing’ to the Government of the United States from said cotton, shall be paid on its arrival at New Orleans, and any cotton transported or attempted to be transported under this authority without the original permits or authorities, or certified copies thereof and proof herein ■required, shall be seized and proceeded against for forfeiture/ and condemnation to the United States.
    “ The acting collector at New Orleans shall record and file in bis office a copy of this authority, and deliver the original to the said J. S. Clark and E. Fultou, after indorsing upon it his certificate, attested by his official seal, that the required bond has been duly executed and delivered..
    “The conditions herein stipulated having been complied with, the cotton moving under this authority or uuder permits given in pursuance hereof, will be allowed to be transported without hinderance or delay.
    “The leave hereby granted is confined to so much of said cotton as had been actually paid for, or said parties had become legally liable to pay for, under and by virtue of permits properly issued by authority of this Department, prior to the said ■ 2d day of July, 1864, and the power to revoke the authority hereby granted at any time, should satisfactory cause appear, is ■reserved to this Department.
    “W. P. FESSENDEN,
    “ Secretary of the Treasury.”
    
    “Executive Mansion, Oetoler 26,1804.
    “The Secretary of the Treasury having, by the terms of and upon the conditions contained in the foregoing paper by him signed, directed that J. S. Clark and E. Fulton be allowed to transport from certain localities in the State of Louisiana to markets in the loyal States or elsewhere 3,435 bales of cotton ■owned by them in said State, and that permits be given them for that purpose by the acting collector of customs at New Orleans :
    “It is ordered that all cotton moving in compliance with such direction of the Secretary of the Treasury, or permits granted in pursuance thereof, shall be free from seizure or detention by any officer of the Government, and commandants of military departments, districts, posts, and detachments, naval stations, gunboats, flotillas, and fleets will observe this order, and give the said J. S. Clark and E. Fulton, their agents and transports, proper facilities and passes for the purpose of getting said cotton through the lines, and safe conduct within our lines while the same is moving in strict compliance with the directions of the Secretary of the Treasury and permits above referred to.
    “ABE AH AM LINCOLN.”
    The court found the following facts:
    I. On the 2Gth of October, 1864, the Secretary of the Treasury signed and delivered to the claimauts the paper of that date annexed to the petition ; and on the same day Abraham Lincoln, President of the United States, signed the order of that date accompanying said paper, and also annexed to the petition.
    II. On the 16th of November, 1864, the claimants delivered to George S. Denison, the acting collector of customs at New Orleans, a bond duly executed, with proper and sufficient sureties, in the sum $250,000, as required by the aforesaid paper signed by the Secretary of the Treasury.
    III. On the 13th of December, 1864, on the United States ship Choctaw, off Bayou Sara, La., John J. Cornwell, lieutenant-commander of the United States Navy, commanding the second and third districts of the Mississippi Eiver, issued the following order, addressed to naval officers between Bayou Sara and New Orleans: “Pass the steamer Sciota, Captain Owesney, with a cargo of three hundred and thirty-six (336) bales of cotton, to New Orleans, without molestation. The cotton was taken on board at Bayou Sara by my consent.”
    IV. On the arrival of the steamer Sciota at New Orleans, she and her cargo were seized by the United States military police, under thecontrol of Col. ETarai Robinson, then acting as provost-marshal-general of the Department of the Gulf, of which department Gen. S. A. Hurlbut was then in command.
    
      Y. After the seizure of the Sciota and her cargo, G-eueral Hurlbut issued a special order, stating that by direction of the major-general commanding the Military Division west of the Mississippi the cotton brought by the steamer Sciota should be disposed of as follows : A certain number of bales (number not shown) to be given to the claimants; the remainder to be turned over to O. JST. Cutler, the United States purchasing-agent ; and that the claimants should give bonds for their appearance when required. On said Robinson’s receipt of said order he sent for the claimants, and they appeared before him and gave bonds; at which time they did not exhibit to him any papers in relation to the shipment of cotton. It was not the province of said Robinson to have anything to do with the receiving or disposing of the cotton.
    YI. On or about the 21st of December, 1SG4, in the evening, after office-hours, the claimants called on the said Robinson at his dwelling and showed him the papers aforesaid, dated October 26, 1864, signed by the Secretary of the Treasury and the President, which the said Robinson had not before seen or had any knowledge of, and the claimants asked him what he thought of that permit. He told them he thought it was a sweeping onej that it covered all ground. They answered that, notwithstanding that permit, the cotton aboard the Sciota had been seized and detained, and themselves put under bond. He asked how that could be. They answered that the permit was of no account unless signed by the major-general commanding the department. He asked them if they had presented it to the general commanding. They said yes, and it had been refused. He then advised them to go to General Oanby, who commanded the Military Division west of the Mississippi, and show the permit to him. They replied, <!You know that is useless by the very order which put us under bond; it states by order of the general commanding the Military Division west of the Mississippi.” They further said they were satisfied that it could not be done except by money; that money was wanted; and that they were willing to pay most liberally to have it signed; that that would cover and release the cotton. They said they would pay ten thousand dollars to have that presidential permit indorsed and their qotton released. He then told them to leave the permit with him and he would see about it.
    The next day the said Robinson took the permit to General Hurlbut and told him the parties wished to have it signed by him. General Hnrlbut replied, “Tes; I have seen this permit before. I have refused to sign it.” Eobinson then said, “General, these men have offered a large amount of money to get this permit indorsed; there’s money in it.” Hurlbut perused the permit carefully, and said, “You must take that to Mr. Denison and have him certify that the proper bonds have been filed by these parties, Clark and Fulton.” Eobinson took the permit to said Denison and advised him of the wishes of General Hurlbut. Denison then indorsed on the permit the following certificate:
    “Custom-House, Collector’s Oppice,
    
      “New Orleans, La., November 16, 1861.
    “I certify that J. S. Clark and E. Fulton have delivered to me a bond, duly executed, with proper and sufficient sureties, in the sum of $250,000, as required by the foregoing authority from the Secretary of the Treasury.
    '[seal.] “GEO. S. DENISOT,
    
      "8jp. Ag't of Treasury Deft & Aet'g Collector of Customs.”
    
    Eobinson then took the permit back to Hnrlbut, who placed on it the following indorsement:
    “Headq’rs Dep’t Gulp, Dee. 23d, 1801.
    “The above executive order will be obeyed & respected by all military officers within this department.
    “S. A. HUELBUT, M. GeP
    
    That day, or the next, the claimants handed Eobinson, at his dwelling, $5,000; and subsequently, on the same day, he handed that money back to them, stating to them that it did not suit him to receive it in that manner. They asked him how he would receive it. He told them he would receive it through Denison, the collector of the port. The next morning Denison handed him an euvelope with $5,000 in it, out of which Eobinson took $2,000 or $3,000 and gave it to General Hurlbut, and laid away the balance in the provost-marshal-general’s office.
    After that money was given to Eobinson, the claimant Clark saw him again, and said to him, “Now I have the permit indorsed, see if you can get my cotton released; see if General Hurlbut will give an order releasing or justifying the release of my cotton.” Eobinson then saw Hurlbut and stated the facts to him, and Hurlbut then wrote the following paper:
    
      “HEADQUARTERS DEPARTMENT OP THE GULF,
    
      “New Orleans, Dee. 24, 1864.
    “ Pursuant to executive order of His Exc’y the President of the United States, J. S. Clark & E. Fulton are permitted to bring the number of bales of cotton in said order mentioned from Rat-elift’s Landing, on the Miss. River, 25 miles above Bayou Sara, on the steamer Scioto, provided the same is received under protection of a gunboat. The taking of any passengers or freight to be lauded at any point, or the payment of anything but United States Treasury notes, will work forfeiture of steamer and cargo. The cotton returning on the boat will be reported & identified by Mr. O. N. Cutler & the prov. mar. gen’l.
    “S. A. HURLBUT, M. G. G”
    
    The claimants then paid Robinson another $5,000, which was disposed of iu the same manner as the first.
    Afterward, and prior to the 13th day of February, 1865, they paid Robinson the further sum of $3,000, of which he gave $1,000 to General Hurlbut, and the rest was disposed of by Robinson in the provost-marshal-general’s office.
    Besides the money so received by Robinson from the claimants, other moneys were paid him by C. A. Weed & Go., the amount of which does not appear, and also the sum-of $1,000 was paid him by one Courtney.
    Of the whole amount paid him by all those parties, $8,000 went into the hands of General nurlbut, who returned the same amount to Robinson on or about the 4th of April, 1865. With the remainder of said whole amount, or a part of it, Robinson purchased gold coiu, which he deposited in' the First National Bank of New Orleans, taking therefor certificates of deposit.in favor of different officers of the bank, which they indorsed over to him, to the amount of $7,602.25.
    TIL Iu January, 1865, a special commission iu New Orleans was appointed by the Secretary of War, with the sanction of the President, and was in session there until May 5 following.
    On the 13th of February, 1865, that commission placed the said Robinson iu solitary confinement, and the same day stopped the payment of said certificates of deposit j and the amount of them, in gold coin, was afterward turned over by the commission to the Secretary of War, by whom the same wrns put as a special deposit in the Treasury,Department until the 16th of June, 1869, when, at the request of the Secretary of War, the same was covered into the Treasury.
    That commission also took $8,000 from said Bobinson, which was likewise turned over to the Secretary of War, by whom it was, with the addition of $40 interest, accrued on compound-interest notes, paid into the Treasury on the 10th of June, 1869.
    VIII. The money paid, as aforesaid, by the claimants to said Bobinson was paid by them with the corrupt motive and purpose on their part of procuring official action whereby their cotton should be released.
    The following additional finding was allowed on the request of the claimants:
    It does not appear that there were any interviews between the claimants and the said Bobinson upon any subject, nor any offer of the payment of any sum or sums of money by them to the said Bobinson, for any purpose, until after the seizure, by the United States military police, of the claimants’ steamer Sciota and the cargo of cotton thereon, which had been shipped from Bayou Sara, La., under the pass and supervision of Lieut. Commander John J. Cornwell, of the United States steamship Choctaw, on the 13th day of December, 1864.
    
      Mr. M. II. Carpenter and Mr. John J. Weed, for the claimants :
    The Treasury permit, and the executive order issued thereon, dated October 26, 1864, protected the claimants’ cotton from seizure by the military police; and the seizure of the said cotton in violation thereof was unauthorized and unlawful. The extortion of money from the claimants by the provost-marshal-general at New Orleans, to secure the release of the claimants’ cotton, and the indorsement of the said permit and executive order, was an unlawful act, and the money paid by the claimants for that purpose might have been recovered by the claimants in an action brought by them for that purpose against the said provost-marshal-general. The wrongful and fraudulent acts of the provost-marshal-general, by which the money belonging to the claimants came to the possession of the United States, did not divest the claimants of their property in the said money, nor oi their right to follow it in the possession of the United States, and recover it in an action brought by them for that purpose against the United States. Au action for money had and received may be maintained whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged, by the ties of natural justice and equity, to refund. {Carey v. Curtis, 3 Howard, S. G. B., 249.) ;
    
    In Hash v. Toione, (5 Wallace, 702,) the following language is used : “Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all cases, where the defendant has moneys of the plaintiff, which, ex aequo et bono, he ought to refund.” {Moses v. Mac-farlan, 2 Burrows, 1008, 1012 ; Clark v. Shee, Cowper, 197, 199, 200 j Butter v. Harrison, Oowper, 565 ; Chillón v. Broidon, 2 Black, 460 ; Castle v. Bullard, 23 Howard, S. G. B.,189 ; Olms-tead v. Rotailing, 1 Hill B., 31S.)
    This court, in the case of The State Rational Bank of Boston v. The United States, (10 Court of Claims B., 519,) has recognized these principles.
    The claimants paid the money to the provost-marshal-general to procure the release of the property illegally seized by that officer previous to the time of such payment, and for the purpose of obtaining the possession of property so unlawfully detained from them. It is well settled that money paid for such a purpose may be recovered back by the party paying it in an action for money had and received. {Atlee v. Backhouse, 6 M. & W., 633, 650 ; Chase v. Dwvnall, 7 Greenl. B., 134; Oates v. Hudson, 6 Exch., 346; Shaw v. Woodcock, 7 B. & O., 73 ; Joyner v. Bgremont, 3 Gush., 567; Preston v. Boston, 12 Pick., 714; Boston & Sandwich Glass Co., v. Boston, 4 Mich., 181, 188 ; Ripley v. Gelston, 9 Johns, 201; Clinton v. Strong, 9 id., 370; Baltimore v. Heffernan, 4 Gill, 425; Borles v. Appleton, 5 Gush., 118; Storer v. Mitchell, 45 Ill., 213; Parsons on Contracts, vol. I, 395, 5th ed.)
    The claimants were without any legal remedy by which they could recover the possession of theco.tton unlawfully seized by order of the provost-marshal-general. There were no civil tribunals in existence in New Orleans at that time, whose jurisdiction might be invoked to protect the claimants in their rights. The military authority there exercised was exclusive and supreme, and the claimants had no alternative, except to submit to the illegal extortions of the provost-marshal-general. They could obtain possession of their cotton in no other way.
    The claimants’ right to recover in this action cannot be defeated upon the maxim, “ In pari delicto potior est conkitio de-fendentis.” The evidence does not establish such a state of facts as renders this principle applicable. The claimants’ cotton had been seized previous to the payment of the money, and the executive order of the President of the United States, by which their cotton was protected from seizure by the military authorities, was ignored and disregarded. The acts of the provost-marshal-general were illegal and oppressive, and the claimants ‘were obliged to pay the money extorted by that officer or submit to those acts. It was not a case of par delictum. It was oppression on one side and submission on the other. It can never be predicated as par delictum when one holds the rod and the other bows to it. (Broom's Legal Maxims, 486, 5th Am. ed.; Smith v. Cuff, 6 M. & S., 160; Alsoger v. Spalding, 4 Bing. N. 0., 407 j Horton v. Riley, 11 M. & TV., 492; Browning v. Morris, Cowper, 790.)
    It was the despotic military rod of the provost-marshal-general to which the claimants bowed submission. It was the persuasive argument, which resulted from the illegal seizure of the claimants’ cotton, which caused them to seek the office of the provost-marshal-general for that relief which they could not obtain elsewhere. It would be a strange perversion of the criminal code if these claimants could have been convicted of bribery for the payment of money to the provost-marshal-general, under the circumstances which this record discloses •, and yet that is the conclusion which this court must reach before it can declare that'the claimants were participes criminis in the illegal acts of that officer.
    
      Mr. Horace M. Hastings (with whom was the Assistant Attorney-General) for the defendants:
    The payments made by claimants were not for the purpose of releasing their merchandise from duress merely, solely, but to purchase favor, aid, influence, expedition in business, looking to the future as well as the present. They were payments made after the goods had been released. The claimants parted with their money intending to give up their fights. The law applicable to such, payments (those disclosed by this evidence) declares them to be “ voluntary,” and may be found in Mayor of Baltimore v. Lefferman,i Gill, 425, 436, (Maryland Reports;) Fellows v. School District, &c., 39 Maine, 559, 560, (argument of counsel,) 561, 562, 563, (opinion); Cunningham v. The City of Boston, 15 Gray, 468; Flston v. The City of Chicago, 40 III., 519; Broom’s Legal Maxims, 270.
    Iu opposition, therefore, to counsel for claimants’ views; we say: The provost-marshal not having extorted” this money from the claimants, but it having been “voluntarily paid” by them to him, claimants did divest themselves by such payment of all right or title whatsoever to said money, and they have no right to follow it into the possession of the United States, however it got there. The doctrine of ex ceguo et bono has no application to these facts, and there could be no better illustration of it than the case cited by counsel, (Moses y. Macfarlan, 2 Burrows, 1005, 1008,1012.)
    
    A case that has been overruled at least a hundred times as to the decision there made, though containing an elegantly-worded description by Lord Mansfield of the action for money had and received. (Harriot v. Hampton, 2 Smith’s Leading Cases, 393, 395.) Even the “description,” however “elegantly worded,” seems to have gone the way of the “decision” itself, for “ the notion about the action for money had and received being an equitable action, is exploded in modern practice.” (2 Chitty on Contracts, 898,11th American edition; Miller v. Atlee, 13 J urist, 431, per Pollock, C. B., and Park, B.; Johnson v. Johnson, 3 B. & P., 169.)
    But the Treasury permit and the Executive order issued thereon, dated October 26, 1864, did not protect the claimants’ cotton from seizure by the military police. The seizure'of the cotton was in strict conformity to law. The provost-marshal, in seizing the Sciota and her cargo, -was entirely justifiable. (The United States v. Lane, 8 Wallace, 185; Maddox v. The United States, 15 id, 58.) And this whether the claimants were residents of New Orleans or not. (The Ouachita Cotton, 5 Wall., 531; The United States v. Daphne, 17 id., 602, 603; Montgomery v. The United States, 15 id., 395, 399.)
    The payment of this money by claimants to Robinson was to-induce him to perform and to induce him to induce others to perform an unlawful act and unlawful acts, viz, to release the cotton lawfully seized and to permit claimants to proceed in further commercial intercourse with an enemy of the United States, with whom she was at war, without hinderance or opposition on the part of the officers of the Government. It requires no citation of authority to show that money paid under such circumstances and for such purposes cannot be recovered back, whether the same was paid voluntarily or extorted.
   Dkake, Ch. J.,

delivered the opinion of the court:

This is, in effect, an action for money had and received by the defendants for the use of the claimants, and we are at a loss to see upon what legal ground or principle it could be supposed that they could, under any possible view of the case, be entitled to recover, when the court has found as a' fact that the money they paid to Robinson, and which went from him into the War Department, and thence into the Treasury of the United States, was paid by them with the corrupt motive and purpose on their part of procuring official action whereby their cotton should be released.

Iu argument, it was urged that this was a case of extortion, and not of bribery; but it had no feature of extortion. Robinson demanded no money of them as a consideration for letting their cotton go out of the control of the military authorities back into the possession of the claimants, but the claimants voluntarily offered to pay, and did pay, him money in order to obtain his official aid in procuring the release of the cotton. Under the sixth section of the A ct February 2G, 1853, “ to prevent frauds upon the Treasury of the United States,” (10 Stat. L., 170,) now incorporated in the Revised Statutes as section 5451, this was bribery, and a high crime and misdemeanor.

Had the claimants sued Robinson to recover back the money they paid him, they could not have recovered it; for in a case where both parties are in pari delicto the law leaves them where it finds them. If, then, they could not maintain an action against Robinson, they are still less entitled to one against the Government. As between them and Robinson, the money became his the moment they paid it to him ; and when it passed from him to the officers of the United States, and from them into the Treasury, it was not the money of the claimants, but, as against them, it was Robinson’s. If any one has a claim against the Government for it, it is he.

The petition of the claimants is dismissed.

Poking- and Pecic, JJ., did not sit in this case, and took no part in the decision.  