Cutler v. Kouns

The congress of the United States, by section 3 of an act passed July 13, 1861, (12 St. 255,) enacted that it should be lawful for the president, by proclamation, to declare that the inhabitants of any state or part of a state in rebellion against the United States were in a state of insurrection, and that 'thereupon all commercial intercourse by and between the same and citizens thereof and the citizens of the rest of the United States should cease and be unlawful so long as such condition of hostilities should continue.' By his proclamation dated August 16, 1861, (12 St. 1262,) the president declared, among others, the states of Louisiana and Texas to be in a state of insurrection against the United States, (excepting such parts thereof as might, from time to time, be occupied by the forces of the United States,) and forbid all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other states and other parts of the United States. On April 26, 1862, the city of New Orleans was occupied by the forces of the United States, and remained in their possession until the close of the civil war. From the date named New Orleans was therefore exexcepted from the operation of the non-intercourse act. In this state of affairs, on July 2, 1864, an act of congress was passed, entitled 'An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary states, and to provide for the collection of captured and abandoned property, and the prevention of fraud in states declared in insurrection.' 13 St. 375. Section 8 of the act provided as follows:

'That it shall be lawful for the secretary of the treasury, with the approval of the president, to authorize agents to purchase for the United States any products of states declared in insurrection, at such places therein as shall be designated by him, at such prices as shall be agreed on with the seller, not exceeding the market value thereof at the place of delivery, nor exceeding three-fourths of the market value thereof in the city of New York, at the latest quotations knowm to the agent purchasing.'

In pursuance of the authority thus conferred, the secretary of the treasury designated certain cities, among them the city of New Orleans, as places of purchase, the appointed purchasing agents. By regulations dated May 9, 1865, he directed that, to meet the requirements of the eighth section of the act of July 2, 1864, the agents should receive all cotton brought to the places designated as places of purchase, and forthwith return to the seller three-fourths thereof, or retain out of the price thereof the difference between three-fourths the market price and the full price thereof in the city of New York.

While the statute and these regulations were in force, to-wit, on June 6, 1865, the defendants in error, George L. Kouns and John Kouns, brought to the city of New Orleans about 900 bales of cotton, which they had caused to be transported, a part from near Shreveport, in the state of Louisiana, and the residue from Jefferson, in the state of Texas. At the time last mentioned, Cutler, the plaintiff in error, was the purchasing agent in New Orleans, appointed by the secretary of the treasury. As such agent he took possession of the cotton, and before releasing it to the plaintiffs in error exacted from them the one-fourth of its market value in New York, which they paid under protest. They paid the money in three installments-$13,695.92 on June 12, $7,200 on June 15, and $8,588.41 on June 20. The money so paid was covered into the treasury by Cutler.

On July 1, 1871, the defendants in error brought this suit against Cutler to recover back the money so paid. Cutler set up several defenses, only two of which it is necessary to notice. These were,-First, that the seizure of the cotton and the exaction of the money paid to him were authorized by section 8 of the act of July 2, 1864, and the regulations of the secretary of the treasury made in pursuance thereof; and, second, that the suit was barred by the limitation enacted by section 7 of the act of March 3, 1863, entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases.' 12 St. 755. Upon the trial of the case in the circuit court the defendant, Cutler, moved the court to direct the jury to return a verdict for him on the ground that the exaction of the money sued for was lawful. The court refused to give this instruction. The defendant also moved the court to direct the jury to return a verdict for him on the ground that the action was barred by section 7 of the act of March 3, 1863, because the suit had not been commenced within two years after the wrong done to redress which the suit was brought. This motion was also denied, and the court instructed the jury that the plaintiffs were entitled to recover the sum of $7,200 paid by them to the defendant on June 15th and the sum of $8,588.41 paid on June 20th, with interest. In pursuance of this instruction the jury returned a verdict for the plaintiffs for $29,679.55, for which the court rendered judgment in their favor against the defendant. This writ of error is prosecuted by the defendant, now the plaintiff in error, to reverse that judgment.

''Sol. Gen. Phillips'', for plaintiff in error.

Henry C. Bliss and Henry S. Neal, for defendants in error.

WOODS, J.