# Tweed's Case

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## Dissenting Opinion

    P. Bradley
United States Supreme Court
83 U.S. 504
Tweed's Case
ERROR to the Circuit Court for the District of Louisiana; the case being thus:
The act of Congress of July 2d, 1864, in addition to that of a prior date, 'to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,' enacted in its 8th section that it should be lawful for the Secretary of the Treasury . . . 'to authorize agents to purchase for the United States any products of States declared in insurrection . . . at such prices as ay be agreed on with the seller, not exceeding the market value thereof at the place of delivery,' &c.
This statute being in force, Tweed, upon the 23d of January, 1866, entered into a contract with one Burbridge, then deputy general agent of the Treasury Department, in which, after reciting 'that it is represented that large quantities of cotton, which formerly belonged to the late so-called Confederate States, are now in possession of individuals in the Red River country, concealed from the knowledge of agents appointed to collect the same, and the marks by which said former ownership could have been proved have been destroyed, for the purpose of enabling the individuals holding it to convert it to their own use; and whereas, it is also represented that most of this cotton is held at places and in districts remote from military posts, so that, if it could be found and identified, it could not be brought forward by the agents, except by increasing the expense of obtaining military aid in its removal, and that the parties holding it dare not bring it within the reach of the civil or military authorities, for fear that its true character may be discovered, thereby causing its seizure; and whereas, it is also represented that a large portion of this cotton can be purchased from the holders at much less than its real value, if the purchaser will take the title at his own risk of seizure by government authorities,' it was agreed that Tweed was to furnish all money necessary to buy said cotton, together with all necessary assistance for the purpose of transportation, and to 'use all proper efforts to purchase as much of said cotton situated upon and near the Red River and its tributaries as can be purchased, prepared for shipment, and transported to and delivered at New Orleans, at a cost not exceeding three-fourths its market value there, and to deliver the same to said Burbridge, in New Orleans.' And, thereupon, Burbridge agreed to deliver to Tweed three-fourths of such cotton in full of his interest therein.
On the 24th of February, 1866, the Secretary of the Treasury wrote from Washington, D. C., a letter to the general agent of the Treasury Department at New Orleans, directing the termination of this contract. As hereafter stated, Tweed received notice of this revocation 'in March, 1866.'
Having obtained the contract above mentioned, Tweed bought from various owners, at a fair market price, in and about Shreveport, Louisiana, 495 bales of cotton; 463 bales of it were bought on or before the 1st of March, 1866 (50 of these 463 on the 5th of February preceding), and the rest upon the 5th and 8th of March.
On the 10th of March, 1866, Burbridge was succeeded in his office of deputy agent, &c., by one Flanders.
The cotton reached New Orleans March 23d, 1866, a part of it having been shipped from Shreveport on the 13th of the same month. Insurance on it was effected under an open policy of Burbridge, deputy agent, &c., and it came to New Orleans subject to adjudication by said Burbridge, &c.
On its arrival, Flanders, as successor of Burbridge, and the now deputy general agent of the United States, claimed one-fourth of it under the contract above stated, and accordingly delivered to Tweed the three-fourths, but refused to deliver the other fourth.
Hereupon Tweed filed a petition in the court below claiming the 123 bales which Flanders, a deputy general agent, retained. The petition alleged that no part of the cotton which he had bought in and about Shreveport was captured or abandoned property, and that the United States had no right, title, or interest in the same, or any part thereof; that the 123 bales retained were worth $17,500; and that he Tweed, feared that Flanders would, pending the suit, dispose of and remove them from the jurisdiction of the court. It prayed for a citation of Flanders, sequestration of the cotton until further orders, and that, after due proceedings, the cotton be redelivered. The citation was granted and the cotto sequestered, &c.
The answer of Flanders denied that Tweed owned the cotton, and asserted that it belonged to the United States; that he, Flanders, was in possession of it as an officer of the United States, by virtue of a contract between Tweed and the Treasury Department, and that the cotton being virtually in the custody of the United States was not liable to sequestration, and that all his, Flanders's, acts in reference to it were official, and not private; that, accordingly, the court had no jurisdiction over the matters complained of, but that such jurisdiction was exclusively in the Court of Claims.
The United States, intervening, stated that the cotton belonged to them as sole owners, and that Flanders was in possession merely as their agent.
The case was tried before a jury. The bill of exceptions showed that evidence was offered which conduced to show—
'That the cotton was raised in the northern part of Texas, by planters, and was possessed by them until the winter of 1865-66, and was sent to market or to Jefferson, Texas, as private property, and that it had never been captured by or surrendered to the army or any military authority of the United States, nor included in any surrender; that none of it was the property of the Confederate States, or had been destined for their use, but was private property; that the defendant testified that he had no evidence at all to affect it as captured or abandoned property; that while said cotton was deposited in the warehouse at Jefferson, Texas, one Turnbull, then an agent to collect abandoned and captured property, published a notice for claimants of cotton to make oath of their ownership, and failing to do this he would seize it as captured property. One of the parties whose property was seized had no notice of the order, and his property was taken and held by Turnbull, and other property was seized by said Turnbull upon protest of the same kind; and the testimony generally conduced to prove these facts, and that in the opinion of the witness his seizures were oppressive, causeless, and for the purpose of extortion.'
'That in March, 1866, the plaintiff went to Shreveport under his contract; that he discovered that there was no property of the kind described in the contract upon which it operated. He was also informed that the contract had been revoked by the Treasury Department. The supervising agent at Shreveport first gave him information to this effect. Thereupon he determined not to take any proceedings under it, and so notified the agent at Shreveport. During the months of February and March, he made purchases of cotton from the owners of the cotton that had been held and seized by Turnbull as aforesaid, and which was then in custody of the agents aforesaid by reason of the seizure. He was informed that no evidence had been produced to affect the claims of the owners and the purchases were safe. The supervising treasury agent at Shreveport, who held the cotton, so advised the plaintiff.'
THE PLAINTIFF asked the court to charge:
'If the cotton described in the petition was not captured by the army of the United States, nor surrendered to them, was not abandoned property, nor was ever property of the Confederate States, but was produced on plantations of private individuals, and was held and possessed as private property by them until the purchase of the same by the plaintiff; and if he purchased the same on his own account from such private owner, and the same was delivered to him, and the same was so held until the detention of the same by the defendant, who did not take, or hold, or possess it under color of any law or statute of the United States, or any authority of his office, or color of the same, but of his own will, the plaintiff is entitled to recover.'
This charge the court gave, and the defendants excepted.
THE DEFENDANT asked the court, to charge, in effect:
'1. That a writ of sequestration would not lie if the defendant held the cotton in question as deputy genera agent of the Treasury Department, under the acts of Congress relating to captured or abandoned property.
'2. That the Circuit Court had no jurisdiction by virtue of the writ of sequestration to direct the cotton to be taken from the possession of the defendant, if the same, at the time the writ issued, was in his possession as such agent, under color of the acts of Congress relating to captured and abandoned property.
'3. That the defendant, if he held the possession of the cotton, as such agent for the collection of captured or abandoned property, had the right to retain the same, and that the plaintiff could not recover the property except by suit in the Court of Claims.'
The court refused thus to charge; and the defendant excepted. The jury found for the plaintiff, and judgment went accordingly.
On the exceptions above stated, and on the refusal of the court on motion to arrest the judgment, the cases were now here on writs of error by both Flanders and the United States.
Mr. S. F. Phillips, Solicitor-General, with whom was Mr G. H. Williams, Attorney-General, for the plaintiff in error:
The case raises these questions:
1. How far one, who became an agent of the United States to purchase cotton of a certain description at a specified time and place, can show that cotton purchased by him at such a time and place is not within the scope of his agency?
2. Whether property held under the act of July 8th, 1864, section two, is liable to sequestration, pendente lite, in favor of an adverse claimant?
3. Whether the only remedy of the plaintiff below be not exclusively in the Court of Claims?
I. The error in the instruction requested by the plaintiff, and given by the court, is, that it takes for granted that Tweed as agent of the United States, under the contract, could, with regard to any cotton bought by him at the time and place that most if not all of this was, disclaim being an agent of the United States.
There was no evidence that Tweed's agency had been revoked by the first day of March, 1866. The letter authorizing such revocation was written at Washington on the 24th of February before, addressed to an officer at New Orleans, but Tweed first heard of it 'in March,' at Shreveport. The burden of showing when an existing agency terminated, is upon him who avers it, and, therefore, in this case, upon Tweed. All that he shows thereupon is that he first heard of it in March, without further specification. It may be assumed as a fact that Tweed had not heard of the revocation until several days after the 1st of March. It also appears that four hundred and sixty-three bales of this parcel of cotton were bought by Tweed on or before March 1st, and all of it by March 8th. Much the larger part of the cotton, therefore, was bought at the time when and the place where Tweed's agency operated; probably all of it was.
Will public policy allow him to suggest that such cotton was bought as principal, for his own individual advantage?
Tweed shows that the contract extended to only such Confederate cotton as was on Red River, and he alleges that this was not of that class.
Before proceeding further, we observe that, if any part of this cotton, no matter how small, was purchased by Tweed as agent, in this suit brought by him under an allegation that none of it was so purchased, the plaintiffs in error are entitled to the benefit of the doctrines in respect to the mingling and confusion by agents of their own and their principal's goods. The case shows that fifty bales were purchased on the 5th of February.
The contract was undoubtedly made at Tweed's promotion. This imposed upon him vigilance, activity, and the duty of having an eye single to the interest of his employer, to such extent that whilst agent he could not place himself in a position to become interested to allay or divert the suspicion of that employer as to any particular parcel of cotton. His bona fides in a particular case need not be questioned. Th question is whether an allowance of such liberty to an agent may not open a door to fraud in general. Will the relation of principal and agent admit of such liberty? We think not.
II. As respects the refusal of the court to give the first and second instructions asked by the defendant, we assign as ground of error that the court assumed the propriety of the writ of sequestration issued in this case. Concede that the plaintiff was entitled to recover in some action, yet during the pendency of his action the property in question could not be taken out of the hands of an agent of the United States by sequestration; because,
1st. The custody of the cotton by Flanders was the custody of the law. A thing in the keeping of an officer of the government, under color of a statute of the United States, upon trust for the benefit of the whole country, is in custody of the law, as much as if in the keeping of an officer of the government, under color of process from a court or magistrate, upon trust for the benefit of one or more citizens.
2d. The possession by Flanders was the possession by the United States.
In the third instruction refused, the court below assumed a jurisdiction which was exclusively in the Court of Claims.
Mr. T. D. Lincoln, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.

## Notes

* ↑ 12 Stat. at Large, 820.
* ↑ See Keech v. Sandford, 2 Equity Cases, Abridged; Moore v. Moore, 1 Selden, 256.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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