[149]

[150]

"

the original cause. If his bill begins a new | the mortgagor was the possession of the mort
litigation, the parties against whom he seeks gagee." And in Coldcleugh v. Johnson, 34 Ark.
relief are entitled to notice thereof, and without 312, it was said by the same court, that "th
it they will not be bound. For the decree of a possession of a mortgagor is not to be deeme
court rendered against a party who has not been adverse until he makes some claim or does som
heard, and has had no chance to be heard, is open and notorious act adverse to the rights o
not a judicial determination of his rights, and the mortgagee." See also Hardin v. Boyd [8
is not entitled to respect in any other court. pra]. The only evidence in the record of an
Windsor v. McVeigh, 93 U. S., 274 [Bk. 23, L. such act, by either Smith or Todd, was the d
ed. 914].
nial by Todd, in his answer filed on Apr
18, 1876, in a suit brought by Woolfol
against him in the Circuit Court of Owe
County, Kentucky, on one of the mortgag
notes, that he was indebted to Woolfolk ther
on. Up to that date, at least, the possessio
of Todd and Smith was the possession of Wo
folk. This suit to foreclose the mortgage w
not, therefore, barred.
Decree affirmed.

Upon the original bill, filed in the Chicot
Circuit Court by Todd, it was not possible,
therefore, for Todd to get a valid money decree
against Woolfolk and his wife without new
and adversary pleadings and service of process
on Woolfolk and giving him his day in court.
Woolfolk and wife had the right to reply on
these principles of law, and were not bound to
take notice of the petition of Todd and the pro-
ceedings thereunder.

Todd and his counsel appear to have seen the
necessity of notice to Woolfolk and his wife,
and made an attempt to give them notice of
the petition filed by Todd. But the record
shows that no lawful notice was served on them.
It fails to show notice of any kind.

The only service which the defendants assert
to have been made on Woolfolk and wife was
the service on Carlton as their attorney, who
was not their attorney, but, as he averred, the
attorney of Todd, the petitioner, and the mail-
ing to their address, by the sheriff, of the copy
of the order. Conceding that these kinds of
service, if executed according to law, were good
under the Statute of Arkansas, which they
are not, they would have been but substituted
service, and could not support a personal de-
cree against Woolfolk and wife. Pennoyer v.
Neff, 95 U. S., 714 [Bk. 24, L. ed. 565]; Hark-
ness v. Hyde, 98 U. S., 476 [Bk. 25, L. ed. 237];
Brooklyn v. Ins. Co., 99 U. S., 362 [Bk. 25 L.
ed. 416]; Empire v. Darlington, 101 U. S.
[Bk. 25, L. ed. 878].

87

It follows that the record of the proceedings and decree of the Circuit Court of Chicot County, subsequent to the decree made in the case of Craig v. Wright, executrix, and others, on October 28, 1868, was not binding upon Woolfolk and wife, and could not be received in evidence against them. As this record contained the only proof offered by the appellants, of any set-off in behalf of any one whatever against the mortgage debt due from Todd to Woolfolk which the present suit was brought to enforce, it follows that the defense of set-off pleaded in the answers of the appellants failed for want of proof, even conceding that they were entitled to make the set-off.

It remains to consider the plea of the Statute
of Limitations. The note secured by mortgage,
which is the basis of this suit, fell due October
30, 1870, and the suit was brought October 27,
1879. It is insisted that the suit to foreclose the

mortgage was, under the law of Arkansas,
barred in seven years from the maturity of the
note. In the case of Birnie v. Main, 29 Ark.,
591, it was declared by the Supreme Court of
Arkansas, that," to bar a suit for the foreclosure
of a mortgage, there must not only be an ad-
verse possession for such length of time as
would bar an action of ejectment, but there
must be an open and notorious denial of the
mortgagee's title; otherwise the possession of

|

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.

G. DE ROSSET LAMAR, Executor of GA
AWAY B. LAMAR, Deceased, Plff. in Err.,

v.

HUGH MCCULLOCH.

(See S. C., Reporter's ed., 163-188.)

Captured or abandoned cotton-construction statutes affecting action of trover-bar.

*Under sec. 2 of the Act of July 27, 1868, chap.

(15 Stat. at L. 243), now embodied in sec. 1059 of Revised Statutes, in an action of trover brou against a former Secretary of the Treasury of United States, in a court other than the Court Claims, to recover a sum of money as the value property of the plaintiff, the defendant plea certain cotton, alleged to have been the priv that the cotton had, in an insurrectionary St been taken, received and collected, as captured abandoned property, into the hands of a spe agent appointed by the defendant while such Se tary, to receive and collect captured or abando property in that State, under sec. 1 of the Act March 12, 1863, chap. 120 (12 Stat. at L., 820); that provisions of that Act were carried out in reg to the cotton, as being captured or abandoned tor; that all the acts done by the defendant resp in the administration of and in virtue and un ing the cotton were done by him throughsuch ag color of the Act of 1863; and that, by force of s of the Act of 1863, and of sec. 3 of the Act of 1 the action was barred, and was exclusively wi the jurisdiction of the Court of Clains. It appes that the cotton had been taken, so far as the def ant was concerned, as being captured or abando property, under a claim, made by him in good fa color of the Act of 1863; Held, that, without re to that effect, in the administration of and un ence to the question whether the cotton wa act of 1863, the fact that it was taken as being s fact abandoned or captured property within

under such claim, made in good faith, was a ba the action, under the Act of 1868, and sec. 1059 of Revised Statutes.

[No. 828.]

Argued Oct. 15, 16, 1885. Decided Oct. 26, 1
IN ERROR to the Circuit Court of the U

States for the Southern District of 1
York.

The history and facts of the case appe the opinion of the court.

Messrs. George Ticknor Curtis and ward N. Dickerson, for plaintiff in error. Mr. A. H. Garland, Atty-Gen., for de ant in error.

*Head notes by Mr. Justice BLATCHFORD.

F Blatchford delivered the opin- | agents duly appointed by the Secretary of the Treasury, to receive and collect captured and saction of trover, originally brought abandoned property" in said State, in pursu★ B. Lamar, against Hugh McCul-ance of the statutes cited, and was "not seized Supreme Court of New York, in by any agent or officer of the United States as 1, and removed into the Circuit such abandoned or captured property, and that Be United States for the Southern all acts done" by the defendant "respecting the of New York, by the defendant. The said cotton, were not done by him through the - was framed to recover $150,280, as agents aforesaid, as the Secretary of the Treaof 375 bales of cotton, known as the sury of the United States, and in the adminisTe cotton, and $110,760, as the value tration of and in virtue and under color of" the Sales of cotton, known as the Flor- Acts of Congress set forth in the plea, concludThe suit was afterwards discon- ing to the country. To the third plea the plainto the Thomasville cotton. The de- tiff replied, that the cotton was not private proppeaded (1) the general issue; (2) that erty taken by the defendant "as an officer or tant was the Secretary of the Treas-agent of the United States in virtue or under -the United States, and the 426 bales color of " the Acts of Congress mentioned in the State of Florida, which had been the plea, and that the acts done by him in reed as in insurrection against the lawful gard to the cotton "were not done by him as an t of the United States by the Proc- officer or agent of the United States, in the adof the President of the United States, ministration of and in virtue and under color Jay 1, 1862 (12 Stat. at L.,1,266), "been of" said Acts of Congress, concluding to the eived and collected, as abandoned or country. property, into the hands of certain , duly appointed by the Secretary y, to recover and collect captured ced property" in said State, in purof the provisions of the last section of A14 Catress approved March 12, 1863, 1 Stat. at L., 820), and the Acts thereof and supplementary thereto; the other provisions of said Act of were carried out in regard to said bales being captured or abandoned cotacts done by the defendant "red cotton, were done by him, through aforesaid, as such officers of the ates as aforesaid, and in the adminisand in virtue and under color of the A of Congress"; and that, by force If the said Act of March 12, 1863, the Act of Congress approved chap. 276 (15 Stat. at L., 243). the as to legal cause of action herein, from such action, which, by force es aforesaid, is exclusively within diction of the Court of Claims"; (3) action is brought against the defendant of private property taken officer or agent of the United virtue or under color of " said Act of 1,193, and the Acts amendatory therementary thereto; that the acts de defendant, in regard to said private were done by him as an officer or United States, in the administrain virtue and under color of said ** * March 12, 1863, and said Acts amendand supplementary thereto; and Time of $3 of said Act of July 27, if has no legal cause of action defendant. There were other pleas 1 a not necessary to refer.

.

nene the plaintiff put in a * Is the second plea he put in two 1 Tat the defendant seized and the cutton mentioned in the plea in **ng and without the cause alleged,

to the country; (2) that the cot want property abandoned or captured af Fonda, "and had not been rd and collected, as abandoned or perty, into the hands of special

To these replications the defendant put in similiters. The case was at issue in March, 1874. In October, 1874, Mr. Lamar died, and, the pres ent plaintiff having been appointed and quali- [166] fied as his executor in November, 1874, an order was made in November, 1875, continuing the action in his name as executor. The cause was tried before a jury in November, 1884. At the close of the plaintiff's evidence, and without any evidence being put in by the defendant, the court directed the jury to find a verdict for the defendant, "upon the ground that the Court of Claims had exclusive jurisdiction of the cause of action set forth in the plaintiff's declaration, and in the evidence as given thereunder, by virtue of the statute of March 12, 1863, and the statutes passed amendatory thereof." The plaintiff excepted to this ruling, and a verdict was rendered for the defendant, followed by a judg ment in his favor, to review which the plaintiff has brought this writ of error.

The case made out by the plaintiff by his evidence set forth in the bill of exceptions, as applied to the pleadings above set forth, was this, so far as such evidence is material, in the view we take of the case:

On the 18th of November, 1865, one Samuel G. Cabell, being in Washington, addressed to the defendant, who was then the Secretary of the Treasury of the United States, a written application or petition, asking for compensation for certain services performed by him "in collecting and securing for the Government of the United States certain captured property therein enumerated." No copy of this letter is put in evidence, and its tenor is to be gathered from subsequent correspondence.

On the 17th of November, 1865, the defend-
ant sent to Mr. Cabell the following letter:

"Treasury Department, November 17th, 1865.
Sir: I have received your application for com-
under an appointment from J. H. Alexander, Esq.,
pensation for certain services performed by you
ass't special agent at Pensacola and Apalachicola,
Fla., in collecting and securing for the Government
therein enumerated.
of the United States certain captured property

In fixing the amount of your compensation Mr.
Alexander transcended his authority, and promised [167]
me in any case, and much larger, in my opinion
you an amount larger than has been approved by
than the circumstances in these cases would justify.

return engaged in prepare for suipment:

ur also that you visited

etton to the cotton at that

1. being shipped by We
gent 5th agency,

em- for the cotton, and

cd touch a bale of it a WE, Tt you were the

A

forth last, I have now the honor to make | ton collected by him, and shipped to you from towing report:

Jacksonville, Fla., on the 25th of January last, and be seen by an official transcript of the for a portion also of certain two hundred and sixtyof the 'custom-house, Jacksonville, Fla., eight (268) bales alleged to have been collected by ce, January 25th, 1866, and herewith him and turned over or shipped to Reuben Ottman, marked Exhibit A,'I shipped on board Esq., assistant special agent at Jacksonville, Fla. Lews Clark one hundred and seventy- I am not at present prepared to make a division bales of cotton, weighing ninety-two of either lot, but it appearing, to my satisfaction, done hundred and one (92,101) pounds; that Mr. Cabell has paid, as expenses incidental to 4d on board the schooner Queen of the securing the first lot, the sum of six thousand six Forty-dre (96) bales of cotton, weighing hundred and fifty-four dollars ($6,654), and on the thousand three hundred and twenty-second the sum of six thousand eight hundred and pounds, all of which cotton was marked eighty-three dollars and eighty-nine cents($6,883,89), asigned by me to Simeon Draper, which amounts should probably be reimbursed, you agent, New York City.. are hereby authorized and directed to pay to his attorneys, Messrs. Hughes, Denver & Peck, the two amounts named, charging the first as an item of expense against the two hundred and seventy-two bales above referred to, and the second as a similar item against the shipment of cotton received by you from Mr. Ottman at Jacksonville.

te mentioned cotton which was seized by owned by the Exporting and Import sy of Georgia (president, G. B. Lamar), by engaged in the sole business of block, and bolding said property for the any communication to you of the 16th of ading and abetting the rebellion, as of the cotton purchased for the above comFra and Southern Georgi.. was made Do signs himself as W. W. Cheever, agent mar, as will more fully hereafter apreference is made to certain lots of coteezed and shipped. It also appears that cotton was purchased by the agents of anar and left on the plantations subject to

This letter proceeds to give an account of the various lots of cotton making up the 272 stating where in Florida they were or taken by Mr. Cabell, and transmit arions documents, and among them, an ut showing that he had paid out $6,654, as Ts relative to the cotton, before it was ed to New York. The letter says: "It s be seen, from the papers submitted, I have been engaged since July last, in and otherwise obtaining this two hunthe and seventy-two (272) bales of cotton for Se Government"; and concludes with asking pensation for the services, one third of

"

, or 90 bales.

Mr. Cabell also asks a per diem allowance as a compenses in connection with the cotton named; for pensation for his time, personal services, and exthis purpose you are also authorized and instructed to pay his attorneys, Messrs. Hughes, Denver & Peck, the sum of three hundred and fifty dollars ($350), being at the rate of five dollars ($5) per day from the 17th of Nov. last, the date of my letter authorizing him to take action in the premises, to the 25th of January, the date of the shipment by him of the two hundred and seventy-two (272) bales mentioned, from Jacksonville, making a charge of this

mount, also, as an item of expense against the
two hundred and seventy-two (272) bales.
cabell on your books, and will be deducted from
any portion of cotton hereafter allotted, or any al-
lowance made to him, on a final settlement of his

These several sums should be charged against Mr.

claims.

the money thus paid, and promptly report your ac-
You will, of course, require proper receipts for
tion hereunder to the Department.

Very respectfully.
H. M'Culloch,
Secretary of the Treasury.
Simeon Draper, Esq., U. 8. Cotton Agent, New

York."

The $13,887.89 was paid by Mr. Draper, May 7th, 1866. The 272 bales of cotton were sold at auction by Mr. Draper, at New York, September 12, 1866, and produced the net sum, the 27th of February, 1866, Mr. Cabell above expenses of sale, of $28,792.19, which ed to the Treasury Department a peti-sum was paid into the Treasury of the United ng forth that, on the 22d of July, 1865, States. When the 268 bales were sold does not Aaier, then acting assistant super appear, but the net proceeds of it, at New pecial agent of the United States Trea- York, above expenses, appear to have been artment for the 9th special agency, $42,883.76, and it is assumed they were paid der the regulations of said department for into the Treasury. ction of captured and abandoned propbe disloyal States," had appointed Mr. Ang aid to the assistant special treafor the District of Florida, "to colreceive all the cotton, tobacco and perty belonging to the United States"; him in my letter of November 17th, 1865, I have deSir: In compliance with the promise made to day, 1985, one Douglas shipped from cided to pay to Mr. Samuel G. Cabell, as full comOne Ottman, a reputed treasury pensation for information furnished, services perJacksonville, Florida, 268 bales of formed, and expenses incurred by him, in the colLi cotton," which Mr. Cabell then of certain 272 and 268 bales of cotton, ex brig Lewis lection, putting in order and shipment to New York were taken from his district and should Clark, and schooners Queen of the West, Julia e under his control; and that, in Au- Crawford, and R. E. Pecker, etc., and for informaMr. Cabell paid the expenses of pre-ing the cottons captured at Thomasville, Ga., and tion furnished and expenses incurred by him touchon for shipment, which Ottman other cottons claimed by the Georgia Exporting ***, being $6,883.89. The petition and Importing Company, or by G. B. Lamar, and held by Government as captured or abandoned & Mr. Cabell be paid the $6,883.89, property, the sum of four thousand eight hundred Led compensation for his services in and eighty-one dollars and ten cents ($4,881.10).

On the 25th of May, 1867, the defendant sent to the Commissioner of Customs the following letter:

of May, 1866, the defendant sent etter to Mr. Draper, the United * Agent at New York:

"May 25, 1867.

You will, therefore, please issue your requisition upon F. E. Spinner, Esq., Treasurer, U. S., special agent, the same to be satisfied out of any funds in his hands as proceeds of captured and abandoned property, for the amount named, viz.: $4,881.10, in favor of George Peabody Este, whose full power of attorney to act in the premises is on file in this office.

**May 4, 1866. * made to me by S. G. Cabell, ace to him of a portion of cer- The draft, therefore, when issued, should be Paired and seventy-two (2) bales of cot-handed to Mr. S. H. Kauffman, a clerk in this office,

[174]

[175]

[168]

[169]

Nor does it appear that the property in question
has been actually placed in possession of any agent
of this department, or in fact removed from the
places were it was discovered. In view, however,
of the stipulations made by Mr. Alexander and ser-
vices you have performed and will still be able to
perform for the department in connection with the
collection of this property, I desire that you return
to your late field of operations and do all in your
power to secure to the Government the cotton
named by you, and to transport the same to a pro-
per place of shipment at the earlest practicable day;
and I will agree to make such an allowance as com-
pensation for your services as will be liberal and
just, in view of the character of your services and
the risk and expenses incurred by you in perform-
ing them. To this end it will be necessary for you
to keep accurate accounts and a full history of all
the facts connected with all lots of cotton so se-
cured and delivered by you.

Please acknowledge the receipt hereof, and ad-
vise me whether the proposition herein made will be
accepted by you.

Very respectfully, H. McCulloch,
S. G. Cabell,
Secretary of the Treasury.
Acting Aid to Ass't Sp'l Agent
Treas'y Dep't, Ninth Special Agency."
On the 18th of November, 1865, Mr. Cabell
replied as follows:

"Washington, D. C., Nov. 18th, 1865.
Hon. Hugh McCulloch, Secretary of the Treas'ry.
Sir: I am in receipt of your communication of
the 17th of Nov. authorizing me to return to my
late field of operations in Florida and Southern
Georgia, and to do all in my power to secure to the
Government the cotton named in my communica-
tion of the 16th of November, and I hereby signify
my acceptance of your proposals.

Before leaving the city I would desire further instructions as to the mode of paying the necessary expenses to be incurred in bringing the said cotton to a proper place of shipment, and to whom I am authorized to turn the cotton over.

In your communication no mention is made of

my claim for compensation for collecting or secur-
ing the cedar timber and the cattle named in my
petition, and I understand that decision upon these
matters has been deferred.

I am, very respectfully, your ob'd't serv't,
S. G. Cabell."

On the 11th of December, 1865, Mr. Cabell
sent to the defendant the following letter:

Treasury Department, December 29th, 1865. Sir: I have received your letter of the 11th inst., advising me that, in accordance with my instruc tions of Nov. 17th, you had shipped to Jacksonville, for shipment to New York, 170 bales of cotton, being part of a lot formerly owned by the Exporting and Importing Company, and that you are engaged in preparing the balance for shipment: also that you visited Thomasville, Ga., in relation to the cotton at that point, and found that it was being shipped by Mr. Browne, supervising sp agent 5th agency, upon whom you made a demand for the cotton, and that he refused to allow you to touch a bale of it; stating, also, that you were the party by whose aid the Government finally came into possession of it, and asking that Mr. Browne be ordered to allow you to carry out the instructions referred to, &c., &c.

My letter of Nov. 17th to which you refer, was not intended to authorize you to take possession of any cotton which might be found in the hands of a duly authorized agent of the department, but was intended rather that you should co-operate with such agents, and to empower you to take into your possession any cotton belonging to Government not in the custody of any other officer of the department, and which might not otherwise be secured by them.

Inasmuch as it appears, by the records in this department,that the cotton at Thomasville was turned over to Mr. Browne by the military authorities in [170] August last, and regularly receipted for by him, rect him to turn it over to you. I must decline to comply with your request to di

matter to the department, from which it appears Mr. Browne has made a representation of the that you have assumed to authorize other persong "to seize all the cotton, tobacco and other property which heretofore belonged to the so-called Confedof Nov. 17th, will show that no authority to aperate Government." A perusal of my letter to you point subordinates was delegated to you; nor was it intended to do more than secure your services in connection with the lots of property specified by you. No indiscriminate seizures or collections draw any such appointments you may have given, were contemplated by it; you will, therefore, withand conform your general action accordingly.

Relative to the instructions asked for in your communication of the 18th ult., I have to say, as to the mode of paying the necessary expenses incurred in bringing cotton to a proper place of shipment, that such expenses should be paid by the vessel transporting it to New York, and the same should follow the cotton as charges, to be paid by the United States cotton agent in New York. It is "Tallahassee, Florida, December 11th, 1865. thought that any vessel desiring to secure the Hon. H. McCulloch, Secretary of the Treasury. freight will make this arrangement. Sir: I have the honor to report that, agreeable to It is proper to add here that it is not necessary your orders contained in your letter of Nov'r, 17th that the shipments of cotton to New York should ult.. I have already shipped to Jacksonville, for be made by you. shipment to New York, one hundred and seventy will be carried out as well by your delivering it to The spirit of my instructions bales of cotton, a part of the lot formerly owned any authorized agent near where the same may be by the Exporting and Importing Company, and am found, or at the place of shipment, and your comengaged preparing the balance for shipment. Thomasville, Georgia, and to carry out your in- information in regard to where the cotton referred I have the honor to report that I proceeded to pensation will be allowed accordingly. Your letter of the 11th instant conveys no specific structions relative to the cottons at that point and to was found, nor to whom or by what vessel or vicinity, estimated at over fifteen hundred bales, conveyance the same was shipped. In this connec and specified in my petition to which your letter of tion I desire to call your attention to that parathe 17th of November was an answer, and found graph of my letter of Nov. 17th requiring you to that the cotton was being shipped by Mr. Browne, keep accurate accounts and a full list of all the special agent of the 5th district, upon whom I facts connected with any lots of cotton secured made a demand for the cottons, who refused to al- and delivered by you. A copy of this record and low me to touch a bale of the cotton, and I was re-history should be forwarded to the department imfused assistance from the military commander at mediately on the shipment of any lot, and a copy that post, on the ground that he had no authority should also be furnished to the agent to whom it is in the premises. I have respectfully to state that turned over or consigned. I served, in writing, notices upon the holders of this cotton, and was the party by whose aid the Government did finally come into the possession of the same.

I have to respectfully ask that the said special
agent, Browne, be ordered to allow me to carry
out my orders contained in your letter of Nov'r
17th, and that he be required to make a report as to
what disposition he has made of any part of said
cotton, and that the military be ordered to aid me
in guarding the same, and such other assistance as
they may be able to render.

I have the honor to be, very respectfully, your
S. G. Cabell,
ob't serv't,
Acting Agent, Treasury Dep't."
The defendant replied to this letter as fol-
lows, on the 29th of December, 1865:

Very respectfully,
H. McCulloch.
Secretary of the Treasury.
Acting Aid Treasury Department, Tallahassee, Fla."

S. G. Cabell, Esq.,

On the 17th of February, 1866, Mr. Cabell, being in Washington, sent to the defendant a letter in which he said:

"Washington, D.C., February 17th, 1866. Hon. Hugh McCulloch, Sec'y of the Treasury Sir: In accordance with your letter of 17th Nov'r last, requesting me to return to my late field of operations in Florida and Southern Georgia, and to do all in my power to secure to the Government the cotton mentioned in my communication to you

[171]