There is no analogy, therefore, between that case and the present, unless the constitution of Wisconsin has made the governor judge of his own title, which we have already seen is not the fact.

On the whole, we believe that the decision of the court is plainly in accordance with all the theory and practice of our form of government, and is fit to stand for a precedent, though not often, we hope, to be invoked.

Recent American Decisions.

United States Court of Claims.

J. ALEXIS PORT V. THE UNITED STATES.

Where during the war with Mexico, property was seized in Mexico as enemy's property, and sold by order of the officer in command, there was an implied warranty of title by the U. States to the purchaser. Quare, as to the amount of compensation on failure of title.

THE opinion of the court was delivered by

GILCHRIST, C. J.-The facts in this case, as they are stated in the petition, are, that on the 12th day of September, 1847, Colonel Childs, the officer commanding at Puebla, ordered Captain Webster to "sell at auction some captured tobacco, and dispose of the proceeds as he will be hereafter directed." In obedience to this order, Captain Webster advertised on the 16th of October, for sale, at auction, on the 19th of October, five hundred bales of tobacco. On the 21st day of Obtober, the claimant purchased the tobacco for the price of twenty-five dollars per bale, amounting to the sum of $12,000, for which he paid $8000 in cash, and gave the United States credit for $4000, they being then indebted to him for supplies furnished the

army.

The first question that arises is, what are the rights and liabilities of the claimant and the United States after the sale of the tobacco and the payment of the price by the

claimant.

In this case there were all the elements necessary to constitute a contract. The United States and Mexico were at war. The American army was in actual possession of a considerable portion of Mexico, and, by the law of nations, had a right to seize the property of the Mexi can government as lawful prize. Colonel Childs had, for the time being, supreme civil and military authority in the military department of Puebla, and in his then existing capacity he represented the United States, whose officer and servant he was. His authority, as the head of the army, could not be resisted; for this was especially a case where, from necessity, the laws must be silent in the presence of a victorious army.

The principles regulating the rights of nations at war, when an army is in possession of an enemy's country, are clearly established by the writers on the law of nations. "When the sovereign or ruler of a state declares war against another sovereign, it is understood that the whole nation declares war against another nation." . . "Hence these two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other." Vattel, B. 3, ch. 5, § 70. "Everything, therefore, which belongs to that nation, to the state, to the sovereign, to the subjects, of whatever age or sex,- everything of that kind, I say, falls under the description of things belonging to the enemy." Ib. § 73. "We have a right to deprive our enemy of his possessions, of everything which may augment his strength and enable him to make war." Ib. B. 3, ch. 9, § 161. "As towns and lands taken from the enemy are called conquests, all movable property taken from him comes under the denomination of booty. This booty naturally belongs to the sovereign making war, no less than the conquests, for he alone has such claims against the hostile nation as warrant him to seize on her property and convert it to his own use." Ib. § 164. "The property of movable effects is vested in the enemy from the moment they come into his power."- Ib. B. 3, ch. 13, § 196. As to movables captured in a land war, it has been sometimes stated to be merely requisite that the property shall have been twentyfour hours in the enemy's hands; but other writers hold that the property must have been brought infra presidia; that is, within the camps, towns, ports, or fleets of the enemy; and others have drawn lines of an arbitrary nature. Marten's Law of Nations, 290, 291; 2 Wooddes. Vin. L. 444, § 34. But in respect to maritime captures, a more

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absolute and certain species of possession has been required, in order to obviate the right of postliminium, such as a sentence of condemnation, to give a neutral purchaser a title to a prize vessel. Case of the Flad Oyen, 1 Rob. 134; 8 T. R. 270. "Immovable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire submission and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect." Vattel, B. 3, ch. 13, § 197. The conqueror who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorizes him to possess himself of what belongs to his enemy; if he deprives him of the sovereignty of that town or province he acquires it, such as it is, with all its limitations and modifications. Ibid. § 199.

In a condition resulting from a state of war, if property be seized under an erroneous supposition that it belongs to the enemy, it may be liberated by the proper authorities; but no action can be maintained against the party who has taken it in a court of law. In England no municipal court, whether of common law or of equity, can take cognizance of any questions arising out of hostile seizure. Le Caux v. Eden, 2 Dougl. 573. So, if booty be taken under the color of military authority by an officer under the supposition that it is the property of a hostile state or of individuals which ought to be confiscated, no municipal court can judge of the propriety or impropriety of the seizure; it can be judged of only by an authority delegated by his majesty, and by his majesty ultimately, assisted by the lords in council. There are no direct decisions on such questions, because, as was stated by Lord Mansfield in Lindo v. Rodney, 2 Dougl. 313, they are cases of rare occurrence. Le Caux v. Eden, 2 Dougl. 592.

It is to be remembered that we are now examining this case upon the supposition that the allegations in the petition are true, and the general question is, whether, supposing them to be true, a proper case is presented for the taking of testimony. The United States were in possession of a quantity of tobacco captured from the enemy during the war with Mexico. Under this general question the first inquiry is, whether, when, a person sells personal property in his possession, there is an implied warranty that he has a title to such property.

In most of, if not all, the cases in this country, wherever the question has been raised, it has been held that in every sale of personal property there is an implied warranty of title. Some of the decisions to this effect are, Defreeze v. Trumper, 1 Johns. 274; Bayard v. Malcolm, Ib. 469; Rew v. Barber, 3 Cowen, 280; Case v. Hall, 24 Wend. 102. In Vibbard v. Johnson, 19 Johns. 78, it is said: "There is no doubt that in every sale of a chattel for a sound price, there is a tacit and implied warranty that the vendor is the owner, and has a right to sell." In Coolidge v. Brigham, 1 Met. 551, the court said: "In contracts of sale, warranty is implied. The vendor is always understood to affirm that the property is his own. This implied affirmation renders him responsible if the title is defective." In Boyd v. Bopst, 2 Dale, 91, it was said by the court: "The possession of chattels is a strong inducement to believe that the possessor is the owner, and the act of selling them is such an affirmation of property that on that circumstance alone, if the fact should turn out otherwise, the value can be recovered from the seller." There are numerous other cases to the same effect, which need not be particularly adverted to for the present purpose. The same doctrine is stated in Story on Contracts, § 535, where numerous English cases are cited by the author in support of his position.

In 1 Law Reporter United States, 272, there is a careful and discriminating analysis of the decisions upon this point by Mr. Pike, of Arkansas, in which the writer comes to the conclusion that the law of England on this subject is like the civil law, and that there is an implied warranty, not of title, but of undisturbed possession and enjoyment. It is immaterial, in the present case, what is the precise character of the implied warranty, whether it be one of title, or of peaceable possession only, because the United States were not only in possession and sold the property, but it has been taken from the possession of the purchaser, who is seeking to recover damages for the breach.

In judicial sales, where property is sold by the marshal under an order of court, it is held that no warranty is implied. The Monte Allegre, 9 Wheat. 644. But this was not a judicial sale. It was simply a sale by the United States, acting through their officers in an enemy's country, of property in their possession, to which they claimed a title by the right of war; and we see no reason why they should stand in any better possession, in regard to prop

erty in their possession, than a private citizen. The sale was in obedience to an order from the commanding general to his military subordinate. We cannot regard the general as a court of law, or Captain Webster as an officer of a court; for this would tend to confound all the distinctions that exist between a state of peace and a state of war in regard to the rights of property.

If, then, there be nothing in the other facts in the case to alter or modify the conclusion, the claimant must be held to have established a right of action against the United States.

But the counsel for the claimant puts his case upon still another ground. He contends that the tobacco belonged to the United States by the rights of war and of conquest, that they sold it to him, and then took it away from him, making him thereby liable in damages to his vendors.

That, upon the facts stated in the petition, we must consider the tobacco as property captured in war by the army of the United States; we think there is no doubt. It was taken by an authority which, for the time being, was supreme. Mexico, so far as it was actually occupied by a competent military force, was, for the time, a conquered country. In the rights of conquest all ordinary civil jurisdiction and remedies were merged. In all that the commanding officer did, so far as he was justified by the law of nations, he represented the country by whose authority he was in command of a military force. It was by this authority, under the law of nations, that the tobacco must for the present be considered to have been captured, and also that it was the property of the enemy. When captured, it was not the private property of the captor, but it became the property of the sovereign, according to Vattel-in this country, of the United States. The people, acting through the only agents who could, from the necessity of the case, be recognized, that is, the officers in command, sold it to the claimant, who paid the consideration for it. It then became his property, and, after such a sale and payment, the United States had no greater right to take the property into their possession, without indemnifying those who might have a claim to it, than any individual would have to take property from his vendee, on the ground that he had no right to sell it.

It appears from the petition, that, after the sale of the tobacco, the petitioner was informed that it was claimed by a merchant of Puebla, by the name of Domerq, and