APPEAL from the Court of Claims; the case being thus:
The third section of the act of Congress of March 12th, 1863,  which authorizes a suit against the United States for the recovery of the proceeds of sale of captured or abandoned property, enacts that—
'Any person claiming to have been the owner of any such abandoned or captured property, may at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of the court of his ownership of said property, of his right to the proceeds thereof, and that he was never given any aid or comfort to the present rebellion, receive the residue of said proceeds after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expense attending the disposition thereof.'
Under this enactment one Villalonga filed a petition in the court below to recover the proceeds of four hundred and ninety-three bales of cotton which were seized by the army of the United States at Savannah, in December, 1864. After its seizure the cotton was turned over to the agents of the Treasury Department and sold, and the proceeds of the sale were paid into the treasury. Of the whole number of bales captured, one hundred and ninety-six belonged to Villalonga, but the remainder he had received as a cotton factor from various persons, and had made advances thereon in money of the Confederate States. The aggregate of these advances was $51,153. It did not appear from the case as found who these different owners were, how much had been advanced to each, or what was the value of the advances in money of the United States. Upon this state of facts the Court of Claims gave judgment in favor of Villalongs, not only for the proceeds of sale of the cotton which belonged to him in his own right, but also for the entire proceeds of that which he had received as a factor, and upon which he had made advances.
The court rested its judgment upon the case of Carroll v. United States;  a case in which property owned by a disloyal person, had after his death, and when in the hands of the administrator of his estate, who was loyal, been seized by the government under the above-quoted Abandoned and Captured Property Act, and sold. This court then adjudged, that on a claim by the loyal administrator, the disloyalty of the decedent did not bar a recovery; that the administrator, who, said the court, 'had a title on which she could maintain trespass or trover,' was to be considered 'owner,' within the meaning of the Abandoned and Captured Property Act.
The Court of Claims, in support of its judgment, said:
'The Supreme Court of the United States decided in Carroll v. United States, that a suit may be maintained under the Abandoned and Captured Property Act by one who was not the owner in his own right, but who, at the time of seizure, was possessed of the property under a title upon which he could maintain an action of trover or trespass, and who, at the time of bringing suit, was entitled to receive the proceeds as the trustee or representative of parties not before the court. We perceive no difference in principle between the case of an administrator and of a factor in possession with a lien upon the property for advances made. The factor is entitled to hold the property. He may sell it to repay his advances, or maintain an action of trover or replevin, to the exclusion of any action by his principal, and on recovering its value he becomes a trustee of the original owner to the extent of his residuary interest. It may be doubted whether the original owner, not in possession, not entitled to possession, and not primarily entitled to the proceeds, could maintain a suit here under the statute; and it is tolerably certain that he and the factor could not have brought several and conflicting suits for their respective interests, and compelled this court to settle disputed accounts between them. Therefore it seems tolerably clear that this suit is properly brought by the factor, who, on recovering, will be liable to his principal of the surplus after repaying his own advances, as if this suit were an action of trover brought in a court of the common law.'
Whether the judgment of the Court of Claims, given on this view of the case, of Carroll v. United States, was correct on such a state of facts as existed in the present case, was the question now presented, and the answer to it depended, of course, upon the answer to the antecedent inquiry whether, as to the cotton upon which the claimant had made partial advances as a factor, he could be considered the owner thereof, and as having a right to its proceeds, within the meaning of the act of Congress.
Certain laws of Georgia, which the claimant relied on as bearing on his case, were as follows:
'SECTION 1987. The lien given by the common law to attorneys, factors, . . . pawnees, and others, under special circumstances (except the vendor's lien), are recognized by and may be enforced under the law of Georgia. 
'SECTION 2090. A factor's lien extends to all balances on general account, and attaches to the proceeds of the sale of the goods consigned as well as to the goods themselves.
'SECTION 2965. The owner of personalty is entitled to the possession thereof. Any deprivation of such possession is a tort for which an action lies.
'SECTION 2966. Mere possession of a chattel, if without title or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession.
'SECTION 2967. Trover may be used as a form of action to recover the possession of chattels, an alternative verdict in damages, to be discharged on delivery of the property that has been taken; but it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.
'SECTION 2969. In cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for the interference with his general property.'
Mr. G. H. Williams, Attorney-General, and Mr. John Goforth, Assistant Attorney-General, for the United States, plaintiff in error:
The right of the factor to the possession of this property was limited by the amount of his advances. This would be true putting the case on general principles. And there is nothing in the Code of Georgia which changes these general principles. To the extent of the interference with his 'special' property, that code, by its section 2969, gave him an action of trespass, while a concurrent right of action is given to the bailor for interference with the general property. No right is given to the bailee or tenant in possession to recover, in an action in his own name, for the injury done to the rights of the general owner.
The cotton having been taken under authority of law, by a force which the factor could not resist, he has incurred no personal responsibility from its seizure.
The personal loss or damage suffered by claimant, of course, is measured by the value of the advances. He had no interest in the cotton beyond these.
Carroll's case does not sustain the judgment of the court below.
Messrs. J. W. Denvers and C. F. Peck, contra:
It is objected, as respects the cotton not, in fact, owned out and out by Villalonga, that if he was entitled to judgment at all, his recovery should have been limited to his own interest as factor. But a factor who sues, sues in his own right. He is owner of the property for the purposes of the suit. In Carroll v. United States, the administratrix was not more the representative of the testator than the factor here was of the owner of the reversionary interest. But this court held the administratrix to be owner.
If this position be true in cases generally, as this court declared it in Carroll's case to be, much more is it true in this particular case. By the law of Georgia, from which State this case comes, the factor is regarded as the owner of the property held by him, as against those taking it from his possession. The code (section 2996) gives an action of 'trover' in a suit like this, to one who is merely possessed of chattels. Now the action of trover is founded on property; and property must be alleged in the narr. Without property so alleged the action cannot be maintained. The code, therefore, for the purposes of a suit like this one, makes mere possession evidence of property, in other words, declares that the possessor is to be regarded as owner. 
The theory of the Captured and Abandoned Property Act, as explained by this court in United States v. Klein,  is that property found by armies in the South was gathered and preserved from destruction for the purpose of awaiting such action as the political department of the government might see fit to take; that no title or right was divested by the seizure, but that this was an incipient step by which the United States might afterwards acquire title through appropriate confiscation proceedings in the courts. But where, as in this case, no offence had been committed full restitution should be made. The United States, therefore, in this case became bound to make restitution. Is there any violence done to the course of law, or to the cause of justice, because in a court not governed by common law forms,  the factor, from whose possession the cotton was taken, obtains a decree that restitution be made to him? The justice and equity of the case is that the factor should recover the entire proceeds, and make his own settlement with his principals, otherwise the Court of Claims would be compelled to decide between them the questions of commission, storage, amount of advances, rate of interest, &c.; and that court was never intended to adjust controversies between individuals, in which the government has no interest.
The principals in this case having clothed the factor with a special ownership in the property, have left him to assert the title for their use and benefit. They have been fit to continue him as their representative, and are now awaiting a settlement at his hands, as soon as he shall receive the proceeds of the property intrusted to him.
The appellant assumes that if the principals could maintain their action here, then the factor cannot recover for their interests. This is a mistake. There are many cases in which an election is given either party may bring the action, but one only can recover.
'In the case of a general as well as special property, the action may in most cases be brought either by the general or special owner, and judgment obtained by one is a bar to an action by the other. 
And this principle is applicable to actions ex contractu, as well as to actions founded in tort. 
Though the action of trover is undoubtedly founded on property as distinguished from possession, a special property is sufficient to maintain it, and is just as good for that purpose as a general property.  Such special property we admit the factor to have, but the general property being still in his principal, our argument remains unanswered. The distinction between the two sorts of property is strongly recognized in section 2969 of the code.
Mr. Justice STRONG delivered the opinion of the court.
- 12 Stat. at Large, 820.
- 13 Wallace, 151.
- Code of Georgia, 1861, pp. 393, 410, 551, 552.
- See Note of Sergeant Williams, 2 Saunders, 47 a, n. 1.
- 13 Wallace, 128
- United States v. Burns, 12 Wallace, 254.
- 1 Chitty on Pleading, 140, 9th American edition, by Perkins, note 4, citing Smith v. James, 7 Cowan, 328.
- 1 Parsons on Contracts, ch. 3, § 6.
- See note of Sergeant Williams cited supra, p. 40.