Opinion of the Court.

On July 1st, 1871, the defendants in error brought this suit against Cutler to recover back the money so paid. Cutler set up several defences, 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 2d, 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 3d, 1863, entitled "An Act relating to habeas corpus, and regulating judicial proceedings in certain cases." 12 Stat. 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 seven of the act of March 3d, 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 was prosecuted by the defendant, now the plaintiff in error, to reverse that judgment.

Mr. Solicitor-General for plaintiff in error.

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

MR. JUSTICE WOODS delivered the opinion of the court.

The errors assigned are, first, the refusal of the Circuit Court to direct a verdict for the defendant on the ground that the money sued for was lawfully exacted from the defendants in

Opinion of the Court.

error; and, second, its refusal to give a similar direction on the ground that the action was barred. We think both these assignments are well founded.

It is not disputed that on June 6th, 1865, when the cotton was brought to New Orleans, the exaction by Cutler, the purchasing agent, of one-fourth its market value in the city of New York was lawful, and that under the statutes and the treasury regulations it was his duty to make it. The contention of the defendants in error is that by the proclamation of the President dated June 13th, 1865, the right of the purchasing agent to buy the cotton in question at three-fourths its market price in New York, or, what is in substance the same thing, to take possession of the cotton and hold it until one-fourth of its market value in New York was paid to him by the owner, was taken away, and that after that date the exaction of one-fourth the market price of the cotton was unlawful.

The material part of the proclamation of June 13th, 1865, was as follows:

"Now, therefore, be it known that I, Andrew Johnson, President of the United States, do hereby declare that all restrictions upon internal, domestic and coast wise intercourse and trade, and upon the removal of products of States heretofore declared in insurrection, reserving and excepting only those relating to contraband of war, as hereinafter recited, and also those which relate to the reservation of the rights of the United States to property purchased in the territory of an enemy, heretofore imposed in the territory of the United States east of the Mississippi River, are annulled, and I do hereby direct that they be forthwith removed.” 13 Stat. 763.

As throwing light upon the question in hand, it should be stated that on June 24th, 1865, the President issued another proclamation, which, after reciting that, "whereas it now seems expedient and proper to remove restrictions upon internal, domestic, and coast wise trade and commercial intercourse between and within the States and Territories west of the Mississippi River," proceeded as follows:

Opinion of the Court.

"Now, therefore, be it known that I Andrew Johnson, President of the United States, do hereby declare that all restrictions upon internal, domestic, and coastwise intercourse and trade, and upon the purchase and removal of products of States and parts of States and Territories heretofore declared in insurrection, lying west of the Mississippi (except only, &c.), are annulled, and I do hereby direct that they be forthwith removed." 13 Stat. 769.

The cotton in this case was the product of a country west of the Mississippi River. It was brought to New Orleans under authority of the act of July 2d, 1864. When it arrived on June 6th it was subject to the exaction enforced by the plaintiff in error. When the proclamation of June 13th was issued, a part of the money due the United States had been paid. If the defendants in error were relieved from the payment of the residue it was by virtue of that proclamation. Leaving out the parts not applicable to this case, it declared "that all restrictions upon the removal of products of States de

clared in insurrection heretofore imposed in the territory of the United States east of the Mississippi River are annulled." Its clearly expressed purpose was to annul the restrictions imposed upon the removal from the territory east of the Mississippi River of the products of that territory.

If we adopt the view of the defendants in error it would fol low that all cotton produced west of the Mississippi, which could only be transported to New Orleans by virtue of the act of July 2d, 1864, and on the condition that it was there to be sold to a purchasing agent, and to be subject to an exaction of one-fourth its value, would the moment it arrived be relieved of all the conditions imposed on it by the statute under authority of which it was removed. In other words, the law imposing restrictions upon the removal of cotton west of the Mississippi would have been nullified by a proclamation of the President which applied in terms only to the territory east of the Mississippi.

The policy of the President was not to remove, and he did not remove, the restrictions upon products of the country west of the Mississippi until his proclamation of June 24th. But the defendants in error contend, in effect, that by transporting their

Opinion of the Court.

cotton to a place east of the Mississippi, where they were under the implied obligation to pay the United States one-fourth its value, they can escape that exaction and get the benefit of the repeal of the restrictions upon cotton grown east of the Mississippi River. But until the restrictions upon the removal of cotton produced west of the Mississippi had been repealed, such cotton, if removed from the place where it was grown, would, while the restrictions were in force, remain subject thereto, no matter what might be the regulations concerning the products of the place to which it was removed.

The proclamation of June 13th refers to places declared to be in insurrection, and annuls restrictions placed upon the removal from such places of the products thereof. The construction contended for by the defendants in error would apply it to a city not in insurrection but in the possession of the federal forces, and to a place where the product was not grown, and where no restrictions upon the removal of articles there produced were in force. Such, in our opinion, was not the effect of the proclamation of June 13th.

There is another view of the question which also appears to us to be conclusive. The money exacted by the plaintiff in error from the defendants in error was paid into the treasury by him. If he should be compelled to return it to the defendants in error, the United States would in justice and honor be bound to make him whole. The suit is, therefore, in substance and effect, an action brought by the defendants in error against the government to recover the money collected by its officers and paid into its treasury, and is to be considered in that light.

We think the money sued for is the money of the United States When the cotton reached New Orleans on June 6th, it was subject to an exaction of one-fourth its market value in New York. The owners had been allowed to bring in their cotton upon the implied promise and understanding that they would sell it to the government for three-fourths the market price. Upon its arrival in New Orleans the rights of the government in the cotton became fixed. One-fourth its value was as much the property of the government as the other threefourths were the property of the defendants in error. No

Opinion of the Court.

proclamation of the President could transfer the property of the government to them. The purchasing agent, for the accommodation of defendants in error, had allowed them to pay the amount due the government in three instalments. The fact that the proclamation intervened between the payment of the first and the second instalments could not relieve the defendants in error from the payment of money actually due to the United States. The President had no more power to exonerate them from the payment of the sum due, than he has to relieve an importer from the payment of duties on his imported merchandise.

It follows, from these views, that the plaintiff in error had authority under the law and regulations of the Treasury Department to exact the money which the defendants in error brought this suit to recover.

But even if the defendants in error had a good cause of action, we are of opinion that the Circuit Court erred in refusing to instruct the jury that it was barred by the limitation prescribed by section seven of the act of March 3d, 1863 12 Stat. 755. That section provides:

"That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act," &c., 12 Stat. 757.

The act of the plaintiff in error, which is charged in the complaint to be a wrong inflicted by him upon the defendants in error, was, as appears by the bill of exceptions, an act done during the rebellion under color of authority derived from the President of the United States and an act of Congress. The bill of exceptions shows that the last of the two sums of money