The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-08-03
A TEST CASE DECISION.
Arguments Of Counsel on Both Sides aud
Judge Hughes Ruling
rpY TELEGRAPH TO THE HERALD. !

lBY TELEGRAPH TO THE HERALD
UNITED STATES CIRCUIT CouRr,)
EAsTERN DISTRICT OF ViRGISIA,}
RICHMOND, August g 1874
Where person was indebted for MONEY had and re-
seived, TO one Of the insurgent State governments
which overthrow by the United States In 1865
and was sued by the United staies after the return
peace In an action Of assumpsIt-on demurrer. held.
that the original assumpst OF the defendant tho In
surgent State government was q debt at common law
and not jure bell that the United States having
succeeded by right OF conquest to the debt, the law
after peace implies assumpst by tho defendant to
pay the debt the United States and viii treat the
latter assumpst as common law obligation and not
as arising jurs bet Held, also, that Circui, Cour,
of the United States has Jurisdiction OF an action Of
assumpsit brought for such debt whether arising q,
common law otherwise.
United states William Smith and ten other sim
liar cases.
STATEMENT FACTS.
The government Of Virginia, under tho Confedcracy,
having borrowed large amount of specie from ono Of
She banks in Richmond, the then Governor William
smith) and other officers withdrew 1t on or about the
I'd Of April 1866, which tho day preceding the
supation Of Richmond by the Union army. Oi this
,pece there were received In distribution by several
Dfcers, respectively, the following sums, be &C
counted for advances Of salary for the fiscal
commencing April I, lS65-viz, by William Smith,
$1,000; George W. Muniord, $4,000; John o. Chiles,
$1,000; Edward Il. Fitznugh. $1,000 Pl F. Howard,
5000 Al later date--to w.t. In August lse5-fur-
,her sums of this specie distributed to officers of
The government then expired--to wit. to Henry w.
Thomas. $780, Shelton C. Davis, $500; John l..
Ihackleford, 800; Daniel Denoon, $780, s. l.. Mon
pure, 500; A. A. Lorentz, $780, During the FIRST
ession Of the Legislature OF the Alexandria
government THAT OF 1866, the Committee OF
Courts OF Justice Of the House Of Delegates was
charged with inquiry into this matter. On Dccsm-
Der TO- 1865, that committee reported through William
T. Joynes one Of its members that in respect this
money the then State govern Virginia did not
succeed TO the rights OF the State government which
was overthrown in April, 1885, and could not claim
This money, and that whatever rights OF conquest
srusd by the overthrow Of tho late government be.
ongcd to the United States.
There was no demand or suit by the subsequent
State government for these sums OF money. Latterly
tho United States have brought actions of assumpst
against each Of the persons named personal de-
lnand made The amount received by E. Il. Fitzhugh
was some time ago paid by him into the treasury OF
Virginia As but Of the suits THAT against Will
lam Smith) involved sum largo enough to authorize
to be carried 10 the Supreme Court that has been
heard rs and the others will be stayed to await the
esu In order that the principle which may be settled
n II may govern the otner Tho heard
in June the demurrer to the declaration, and the
decision OF tho Court sbc points raised by the dc.
murrer was rendered on tho I'd day OF August 1877.
In the argument the State represented by the
Attorney General; r. IT Daniel and other doendants,
nv n Ynl IL
johnson and William L. Royal. Tho Unned states
were represented by L. L. Lewis, the District Attor-
mtted oral arguments; Mr. johnson submitted q brief
an writing: The points relied upon for the defendants
ARouxssr FOR THE DEPENDANT.
As to jurisdiction OF this Court There being
common law Of the Union lLorman VS.. Clarke, Nc.
Lean 672 the powers of this Court arise solely from
statute Section 629 Revised Statutes confcrs jursdc
tion I'm all suits at common law where United States
any officer thereof SUNG under q statute plain.
tins THIS statute then gives this Court Jurisdiction
II this is suit at common law. ltwould not have
were It suit in equity, nor in admiralty, nor In GRIM
NAL prosecution In nature Of an Information Other
statutes would be necessary to create that
jurisdiction. In this cause tho defendant WIS
acting Governor OF Virginia-eithcr In exercising
those police and governmental functions which have
b1en recognized as valid and binding aiding the
rebellion. (Aorn vs. Lockhart ~ Wall 20 II his
VOLTA and binding acts that s an end OF THIS contcn
ton. Tho pay OF the gold by the auditor, his re-
ccpt for II Governor are all to be recognized
necessary 10 the performance OF his duty Governor
in protecting society ana preserving order. Such
tran sactons bind all the world IT, however the re.
nsurgcnt Governor" was for tho purpose OF aidlng
the rebellion, then no liability at common law
out OF the act The common law liability only arises
when defendant has in band money which, according
10 rules OF equity and good conscience, belongs
and ought TO be paid TO another This liability, as
claimed, arises out the rules OF The rules Of
equity and good conscience IRE based reason. right
and justice. The rules OF war rest on force alone.
They modified by the usaycs OF natous but force
IL their sole and basis. II clear that this
action OF assumpsit Will not lie II will not lie TO
cover back money paid 70 release cattle Improperly
dis,rained, Tor the question OF trespass or rent IN
arrears cannot be thus tried. Linden Va Harper,
Cowp ~; Knit!s vs. a Hall Esp, g.; cclvllls
where there is no privity between plaintiff
and defendant as to the subject Of demand.
East. 597 where bankers paid plaintiffs money to dc
iondant TINS technical action surely will not lie, and
no action VIII lie at common law II tho United States
have rights IN this matter they accrue 10 tnon ure
bcllI They low from the public Law, and not the
common law No common law liability accrucs from
any act OF war nor any act durapt 70 bcllO Associate
Justice swayne, In Coolidge vs. Guthrie Is Am. Law
Rcg'nl held that trover would not lie TO
captured jure bcll SO, Hughes Litsey Is Am.
Law Rcg'n, l45) decides that Confederate soldiers
liable tor taking horses from Union men in
Kentucky during the war. 10 Lecaux vs.. Eden q
Doug, 594l and the note TO It, Linds vs.. Ramsey 6l3)
Ali the Judges, with Lord Mansfield consider at great
length tho question whether a common law action
can not 10 Elpninstone vs. Burdeckhund Il Knapp.
c. e. 300) an Indian Prince sued Lord Elphinstonc,
Governor General, TO secure an immense plumber oil
Jewels, gold, gems and shawls, which had been taken
from hun after the capture OF his city and after mill
tsry government had been established there. But the
Court held that tho capture made pondum
bciio, and municipal Court had any jurisdiction.
II be- determined by Her Majesty alone. the
principle OF public law, that is Of public general
justice and right as decided by her Is Philemon In
lernal Law, p. lS0 See The Army OF tho Dcccan,
Knapp T. Z: e., loo; Porter vs. United states Deve-
raux Court of Claims III The Banda and Krvec Booty
/. X. l adm and Eccles. l09
No court in England had any Jurisdiction 10 deter
the question Of booty or NO booty until 3i4 VIC
TO- and the Banda Booty was tho nrs SUCH case
tired. II was in 1866 In Coolidge vs.. Guthrie Mr..
Justice Swaync distinctly hollis that Congress has
given no power Circuit courts TO try questions Of
booty booty. II this Court has no power 10 try
and DECIDE whether a capture Of property land
during war Is lawful capturc II when NH.
,ary officer IN takes the properly Of
the ctizcn ana when peace returns the citizen has
redress In this Court Tor trcspass or damage then
surely the United States cannot enforce any claims
except those expressly specified by s,atutel suits
OF common law. Rights growing out oil state OF war
must be decided jure beh, by the law OF the " mole
world, and not by tho local, municipal or common Law.
Wherefore this Court has no jurisdiction OF this cause
nor this action In event the United States be
entitled to this gold IL Is true that whsn nation
Qucrq c0 nuaPa Ia led n ALI a