Opinion of the court.

expenses, to be approved by the Secretary of the Treasury, be paid into the treasury of the United States; and all accounts of moneys received or expended in connection therewith shall be audited by the proper accounting officers of the treasury."

Here the regulations in question are referred to by name and date, and the money accruing under their operation (the great bulk of which was derived from the bonus on cotton) was directed to be paid into the treasury. It is designated by the term "fees," it is true, but that was the designation used in the regulations themselves. It will be observed that the law was prospective, relating to moneys thereafter to be received, as well as to those already received. This was clearly an implied recognition and ratification of the regulations, so far as any ratification on the part of Congress may have been necessary to their validity.

It is hardly necessary, under the view we have taken of the character of the regulations in question, and of the charge or bonus objected to by the plaintiffs, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. As before stated, the power of the government to impose such conditions upon commercial intercourse with an enemy in time of war as it sees fit, is undoubted. It is a power which every other government in the world claims and exercises, and which belongs to the government of the United States as incident to the power to declare war and to carry it on to a successful termination. We regard the regulations in question as nothing more than the exercise of this power. It does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as much so as the power to levy military contributions, or to perform any other bellig

erent act.

We perceive no error in the record, and the judgment of the Circuit Court must be

AFFIRMED.

VOL. XXI.

7

Statement of the case.

NOTE.

At the same time with the preceding case was adjudged the case of McClelland v. United States; an appeal from the Court of Claims; in which the claimant sought to recover payments of four cents per pound on cotton, made, as was admitted, under and in pursuance of the license of the President, and the rules and regulations prescribed by the Secretary of the Treasury, whose validity was considered in the case just above reported. There was a demurrer to the petition which the Court of Claims sustained, and, as this court, after a full argument by Messrs. J. W. Denver and C. F. Peck, for the appellant, now adjudged, rightly; declaring that this case was substantially decided by the preceding one. The judgment of the Court of Claims was accordingly AFFIRMED.

DOUGLASS v. DOUGLASS, ADMINISTRATOR.

1 Under the statute of Maryland, passed in 1785 (chapter 80, 14), where, in a replevin suit, the party from whom the goods were taken is reinstated in his possession by executing a bond, and a bond is given for the restoration of the specified goods, and these goods are delivered to the sheriff on the writ de retorno habendo, issued on a judgment recovered; this is a satisfaction of the obligation, though the goods were not in like good order as when the bond was executed.

2. If the obligor has injured them, or culpably suffered them to become injured while they were in his possession, a recovery cannot be had against him on the bond, if the marshal have once taken possession. The marshal's possession is that of the obligee in the bond. Any redress for such injury must be had by a separate proceeding.

ERROR to the Supreme Court for the District of Columbia; the case being thus:

By an act of the Assembly of Maryland, in force in the District of Columbia,* provision is made that, upon motion of the defendant in replevin in certain specified cases, the court may order a return of the goods taken in such replevin, to the defendant. In such cases when a return is

* Act of 1785, ch. 80, 14.

Statement of the case.

awarded, it is "upon the said defendant entering into bond, with security to be approved by the court, conditioned for the return of said property, if the same be adjudged by the court."* This statute being in force, Henry Douglass executed in Washington, D. C., a penal bond of the sort mentioned to William Douglass, in the sum of $11,000. It recited that William Douglass, as administrator, &c., had sued out against Henry Douglass a writ of replevin, under which had been seized and delivered to William, as administrator, certain articles (green-house plants) mentioned in the writ; that Henry had moved the court to return the articles to him, and that the court ordered their return upon his giving bond as required.

The condition of the bond was as follows:

"Now the condition of this obligation is such, that if the said Henry Douglass shall and will return the goods and chattels in said declaration mentioned, if the same be adjudged, and in all things stand to, abide by, and perform and fulfil the judgment of the said court, then the above obligation to be void; other wise to be and remain in full force and virtue in law."

On this bond the said William Douglass, administrator, &c., brought suit in the court below.

The declaration averred that it was adjudged in the suit that the property in the articles was in William, as such administrator, and that it was considered by the court that they should be restored to him, that he should recover of Henry $537.23 for costs, "and that he have execution for the return of said goods and chattels, and for said costs of suit."

The breach alleged was,

"That the said Henry Douglass did not return and deliver up the said goods aud chattels to the said William Douglass, administrator, as aforesaid, or well and truly abide by and perform and fulfil the judgment of the said court in the premises, but had hitherto wholly neglected and refused so to do, and still doth so refuse and neglect, whereby the said writing obligatory hath become forfeited to the said plaintiff."

* Evans's Practice, 237, 238.

Statement of the case.

The defendant filed four pleas:

1. That he did not commit the breach alleged.

2. That he did not neglect and refuse to abide by and fulfil the judgment of the court.

3. That the plaintiff caused a writ of de retorno habendo to be issued, and that in execution of the writ the marshal seized the goods and chattels mentioned in the declaration, and tendered them to the plaintiff, who refused to receive them.

4. That he did deliver to the plaintiff the goods and chattels mentioned in the declaration, as he was bound to do. The third and fourth pleas concluded with a verification. The first and second concluded neither with a verification, nor to the country.

The plaintiff took issue on the first, second, and fourth pleas; to the third he replied, that "when the marshal seized the said goods and chattels they were much damaged and altered in condition, and of materially less value than when they were delivered to said defendant as aforesaid, wherefore plaintiff refused to receive the same, and they were left by the marshal and still remain in the defendant's possession, and this he is ready to verify.”

There was no rejoinder to the replication. Upon this state of the pleadings the case went to the jury.

Upon the trial the plaintiff offered evidence tending to prove the value of the goods and chattels when they were delivered by the marshal to the defendant, and also evidence tending to prove that they were seized by the marshal at several times under two writs of de retorno habendo, issued upou the judgment in favor of the plaintiff, and tendered to the plaintiff by the marshal; that the plaintiff refused to receive them; that they were then in a changed and damaged condition, and hence his refusal. The evidence was admitted, and the defendant excepted.

The defendant offered evidence tending to prove that under the two writs of de retorno habendo, the goods and chattels had been seized by the marshal and tendered to the plaintiff; that he refused to receive them, and that upon

Argument for the plaintiff in error.

one of the occasions when they were so seized, the plaintiff was present and objected only to a few of the articles as not included in the original suit; that the deputy marshal who served the writ and made the seizure instructed the plaintiff to furuish means of removing the articles from the premises of the defendant, which he refused to do, and that thereupon the deputy left them where he found them, without any consultation or understanding with the defendant, and that the defendant never accepted them from the marshal. The plaintiff objected to the evidence, the court excluded it, and the defendant excepted.

The defendant prayed the court to instruct the jury that the tender to the plaintiff, by the marshal, discharged the obligation of the bond. The court refused, and the defendant excepted.

The plaintiff thereupon asked the following instructions: 1. That the proceedings under the writs de retorno habendo did not bar the plaintiff's right to recover.

2. That unless the defendant had offered to return the goods and chattels, he was liable for their value at the time they were delivered to him by the marshal, with interest from the date of the judgment of return.

These instructions were given, and the defendant excepted.

Verdict and judgment having been rendered for the plaintiff, the defendant brought the case here.

Messrs. B. Phillips and W. B. Webb, for the plaintiff in error: The meaning in law of the bond is the principal question. 1. The seizure of the marshal, under the writ, of the property mentioned in it, was a return and delivery in full compliance with the bond. His possession and control of the property, by virtue of the writ issued at the instance of the plaintiff, was the possession and control of the plaintiff himself. The law makes the marshal the plaintiff's agent. Carrico v. Taylor* is in point.

* 3 Dana, 33.