Volume 5 — Court of Claims Reports

It is a reinforce — flat-based—containing a preponderating weight placed around the fuse-hole. The original invention. Specification prepared and sworn to January 22, 1846, and filed in Patent Office, July 13, 1846. The shell used, by the United States contains the invention patented.

This cause stands upon demurrer to the plea of former suit in bar, oyer being craved of the record in former suit. The petition in the former suit was bad, and the court so held upon demurrer thereto, and dismissed the petition. The petition in this case is good.

The papers in this cause were filed, and the action placed on the docket of this court, by the Attorney General, at the request of the honorable Secretary of War, under the provisions of the seventh section of the act of 25th June, 1888. (15 Stab. L., p. 76.) That act did not, nor was it intended to, embrace claims which had been settled and adjusted by the accounting officers of the Treasury.

In the fall of 1863, 0. E. Fuller, a captain and assistant quartermaster in tbe United States Army, was ordered by tbe Quartermaster General to proceed to tbe State of New York and purchase borses in.tbe open market in as large numbers and as rapidly as possible to meet tbe pressing exigencies of tbe public service.

Tbe plaintiffs contracted with tbe defendants to supply tbe materials and construct a fire-proof storehouse in Philadelphia, according to certain plans and specifications. While the work was progressing tbe defendants required tbe plaintiffs to make alterations in and additions to tbe said plans and specifications, which involved tbe purchase of large quantities of extra materials and tbe performance of a great deal of extra labor.

<p> On the Proofs. </p> <p>In 1856 the claimant brings Ms suit in tMs court to recoser certain rents alleged to be due Mm on a lease made by one Saffarans to ike United States, and assigned to Mm by Saffarans. The claimant fails to prove such a transfer of the lease as would enable him to sustain a suit for the rents. The court so decides, and voider its former organization an adverse report on the claim is made to Congress. Congress pass a joint resolution, referring back the case to the court and authorizing it to render judgment for such amount as may be found equitably due to the claimant, notwithstanding the defect in the assignment of the lease, provided the claimant file a bond with the Secretary of the Treasury to indemnify the United States against any claim which may be made by the heirs of Saf-farans. Under this resolution the claimant recovers judgment for the rent due up to the lime of bringing suit. The present suit is brought to recover rent which has accrued subsequently.</p> <p>I. A joint resolution referring "back to the Court of Claims a ease that had "been reported adversely to Congress by the former Court of Claims on account of a technical objection; and which is designed to relieve the claimant from that obj eetion, cannot apply to any other than the cause then remanded, and cannot have any oxieration and effect beyond the case to which it was made specially to relate. — Joint Resolution, 2d July, 1864, (13 Slat. L., p. 591.)</p> <p>II. When Congress refer a ease to the Court of Claims, it comes to the court with whatever limitations Congress may prescribe, and the court accepts the resolution as the law of the case. Its meaning cannot he extended and made applicable to any other suit, without, express words to that effect.</p>

Major Montgomery was a major and. quartermaster in tbe service of the United States, and was dismissed from tbe service on tbe IStb of July, 1863; be was paid up to Juljr 24,1863. Tbis order of dismissal was revoked on tbe 14th of June. He was not paid from July 25, 1863, to June 13, 1864, and tbis action is brought to recover tbe pay and emoluments to which be is entitled during tbis period.

<p> On tlie Proofs. </p> <p>The claimant, at the close of the civil war, holds the rank of colonel, in the 46th regiment colored troops. In January, 1866, his regiment is musten-ed out of the service, hut he is not mustered out until January 1, 1868, ivhen he is honorably discharged. On the 12th June, 1865, by special order of the Seeretary of War, he is assigned to duty under Major General O. O. Howard, and directed to report by letter to that officer for instructions. He is appointed by General Howard, December 14, 1866, inspector in the Dreedmen’s Bureau, and directed to report in pa-son for instructions. On so reporting he is assigned to duty at headquarters in Washington, from January 1st to July 16th, 1868. He is paid up to the time when mustered out of the serviee, but claims pay up to the 16th July, 1868.</p> <p>I. The Act July 6th, 1868, ‘(15 Stat. L., p. 83, § 4,) authorizes the Commissioner of the Ereedmen’s Bureau to retain officers of the Yolunteer service, after they are mustered out, in the serviee of the bureau, with the same “pay and allowances ” to which their respective ranks entitled them while in the army.</p> <p>II. The right of an officer of the army to commutation of fuel and quarters springs out of the general authority of the "War Department, and has been indirectly sanctioned by Congress from the origin of the government. This usage has been so long practiced in the army, and so often sustained by Congress in appropriations for the payment of such commutations, that the right of officers under the regulations of the army to such commutations cannot now be questioned.</p> <p>III. An officer mustered out of the service on the 1st of January, 1868, and retained in the service of the Ereedmen’s Bureau up to the 16th of July of the same year, by appointment of the Commissioner of that bureau, is, under the Act 6th July, 1868, (15 Stat. L., p. 83,) as fully entitled to the thirty-three and a third per cent, on his pay proper, allowed by the Act 2d March, 1867, (14 Stat. L., p. 422,) as if he had remained in the army up to 16th July of the same year.</p>

<p> On the Proofs. </p>

<p> On Motion. </p> <p>Infants in Mississippi, on the 31st March, 1868, Tiring their actions, as heirs, by their guardians, for the proceeds of captured property owned by thew parents, deceased. The defendants raise no objection until the 10th June, 1869, when they file their pleas in abatement, m the nature of a demurrer, because the suits are not'brought by the administrators. The claimants now assert that they are the only parties in interest, and ash leave to bring in the administrators as co-claimants.</p> <p>I. Where an infant brings an action, as heir, by his guardian, for the proceeds in the Treasury of captured property, and the defendants raise no objection to the form of the action or the right of the heirs to sue as , such, until after a new action by the administrator would be barred by the statute, (12 Stat. L., p. 820,) the court will save, if possible, the just rights of the infant claimant by joining the administrator as co-claimant and allowing him to file a supplemental petition.</p> <p>II. Where a suit, under the.“Abandoned or captured property act,” (12 Stat. L., p. 820,) is brought erroneously in the name of an infant heir, by bis guardian, instead of by flip administrator of the deceased owner of the captured property, the court has power to join the administrator as co-claimant, notwithstanding- that a new suit by the administrator would be barred by limitation of the statute; provided, however, that the interest remains unchanged, and that the administrator in fact represents no new party. The object of the statute in requiring all such actions to be brought within two years after the suppression of the rebellion, is attained, if within that poriod a suit is brought by or on behalf of the party really entitled to receive the proceeds. But if the administrator represents other parties, to join him as co-claimant will be in effect to bring in new owners who are barred by the statute. The administrator, therefore,'must allege and imove that no person other than the infant claimant will be benefited by the recovery.</p>

<p> On the Proofs. </p>

Surgeon General Finley makes written application to Quartermaster General Meigs for permission to rent tbe premises described, accompanying it witb tbg written proposition of Miss English, , of tbe terms sbe would lease to tbe United States, under date of June 24,1861. On tbe same day General Meigs directs Captain Sucker to close tbe contract witb Miss English on tbe terms sbe proposes.

<p> On Motion to Dismiss. </p> <p>The petitioner alleges possession of Ms plantation in Louisiana until, in October, 1862, “the United States illegally, violently, and forcibly took possession of said plantation against the consent of the said petitioner, whom they dispossessed; and continued to hold possession thereof until January, 1866, on the false and illegal pretext that the property was abandoned by the owner.” Also, that there was on the plantation certain personal property which, “was destroyed or taken and carried away by the United States, and those agents who were put in charge of the plantation, so that the petitioner has been deprived of it,” and “the United States have become liable in law to pay him the value thereof,” J’c. Also, “ that during the time the plantation aforesaid was in the possession of the United States,” 4'°-> “it was rented out bjr the United States to persons ' who made large crops,” fc., which “were worth” $30,000 in all, which “the United States are justly and legally liable to pay him.”</p> <p>Where a petition does not in terms profess to seek relief under the “Abandoned or captured property acts,” (12 Stat. L., p. 820; 13 id., p. 375,) and where it does not show a taking of private property for public use, nor that the defendants received rent to the use of the claimant of his plantation leased by them to third persons, but simply contains the elements of a declaration in trespass quare clausum f regib, viz: possession by the claimant — an entry illegal, violent, forcible, by the defendants — the Court of Claims has not jurisdiction of the action.</p>

This suit is instituted in this court by original petition, and the claimant seeks to recover by it the sum of one hundred and eleven tlwtisand eight hundred and fifty-nine dollars and tlvirty-three cents.

The petition contains two counts: 1st. Claiming $10,000, as tbe balance due under charter-party of the steamer Tallacca. 2cL Five thousand dollars, the value of the barge Wm. E. Hunt, destroyed by rebels, while under charter to the government.

The petition contains two counts: 1st. Claiming $6,550 due for unlawful reduction of charter of steamer Eebecca Clyde. 2d. Three thousand seven hundred dollars due for a similar-reduction in the charter of the steamer Emilie.

The claim in this case is for the value of the steamboat Majde Leaf, which was chartered to the United States on the 19 th day of August, 1863. She was destroyed by the explosion of a rebel torpedo in the St. John’s Biver, Florida, on the 1st day of April, 1864, while in sendee under charter.

Tbe petition in this case rests upon a charter-party executed tbe 7th day of March, 1862, which took effect the 27th day of February, 1862, stipulating for the services of the steamer Eockland.

Tbis is a claim founded upon express contract in writing, and is brought by original petition. Held: and upon report of the result she was docked for repairs. In consequence of the pressing need of transports in the public service, the work was pushed night and day by two sets of workmen, and without completing the repairs she was sent to sea. She lost here, in all, twenty days, from August 5 to 25.

The original petition in this case is based upon a charter-party entered into by tlie claimants witli the United States for the services of the steamer Maple Leaf.

The petitioners in this case chartered to the Quartermaster’s Department, December 18, 1862, the steamer Sylvan Shore, at the rate of $200 per day j she continued in service, faithfully performing her required duties, until the 12th day of December, 1863.

Tbis is a claim under a charter-party, made by the Quartermaster’s Department and the claimant for the services of the steamboat J. A. Stevens. The charter-party is dated December 31, 1862, and stipulates for a payment of $120 “for each and every day of twenty-four hours while she may be kept in the service of the United States under this charter.” While the charter was. in full force an arbitrary reduction was made to take effect from May 1,1863, of $40 per day.

The petitioners, on the 19th of November, 1862, by au instrument in writing, at Port Boyal, in South Carolina, did hire to the United States their steamship Mattano. The United States bound themselves to pay for the use o the steamship, $250 for every day said ship might be retained under the contract.

Petitioners claim $760 as reduction illegally made by the Quartermaster’s Department from the charter rates of the steam-tug Besen e,, beginning August 1, 1863, ending October 15, 1863, the date of sale by the claimants of the tug Bescue to other parties. This tug was chartered the 6th day of March, 1862, at $50 pier day, “ for each and every day she may be employed,” • &c., and continued in service under the charter from that date until she was sold to Messrs.

The claimants were the owners of the bark Annie Kimball. On the 18th day of April, 1865, the Kimball received on board a cargo of coal at Philadelphia, which she undertook, by the terms of a hill of lading, to carry to Port Koyal, South Carolina, for the United States. The bark arrived duly and reported her cargo for discharge.

The sliip was chartered by Richard W. Sears, agent of owners, to William W. McKim, assistant quartermaster, for the use of the United States, on the 10th day of January, 1863, for the space of three months from date of charter, with the privilege on the part of the United States of retaining the use of the ship as much longer as her services might be required, and at the rate of $3 50 per registered tonnage per calendar month, ■and to be paid at that rate until discharged by…

The petitioner, an incorporated company under the laws of the State of Massachusetts, claims $11,397 64, a .balance due by the terms of a certain charter-party made by petitioner with the United States for the service of the steamer Thorn, April 5,1864. By the terms of the charter the United States assumed the war risk.

On the 17th day of November, 1863, Anthony Béybold, one of the claimants, was the owner of the steam vessel called the Express, of Delaware City, in tlie State of Delaware, then in the employment of the United States.

This is an action brought by original petition to recover a balance of $9,955, being the balance clue from the United States on account of the charter of the steamer Ben Franklin. The contract, which is in writing, differs from those usually brought before a court in this, that it was not entered into voluntarily by the claimant, as to all of its terms.

The claimant institutes this suit to recover the value of a case of jewelry seized by the revenue officers of the United States, for an alleged under-valuation in the invoice, upon which the duties payable thereon were assessed. 1st. On the 13th day of July, 1859, a libel of information was filed in the United States District Court for the southern district of New York, by the United States district attorney for said district, in which, among other things, it was alleged,…

The testimony places beyond dispute the following propositions : 1. That the Government contracted for the delivery by the claimant of the boiler felting and other articles, for which payment of the different sums in the petition mentioned is by him claimed, at the prices therein set down. 2. That the claimant delivered the same to the Government at or about the dates given in the petition. 3.

This is a suit for the recovery of the amount paid by claimant for three bonds of the town of Alton a, New York, hearing date September 20, 1861, and payable to George Brimble, or bearer, one for $400, and two for $100 each.

Tbis is a suit brought by original petition to recover the price of certain buildings standing upon the military reservation at Fort Riley, Kansas, and is founded qji an express contract in writing. , From the brief of the case, it appears that on the 5th of April, 1885, Brevet Colonel J. W. Davidson, commanding Fort Riley, served an order upon one Mayer, who was in possession of and claimed to be owner of three buildings at that post, two of stone and one frame building,…

TMs suit is brought to recover from the United States the amount of three vouchers, viz: $12,762 70, issued to the claimant for work done and materials furnished in December 1864, and January 1865; under contract to the chief engineer of the then military Department of Kansas, commanded by Major General S. K. Curtis. The contract was made under the instruction and by the order of General Curtis, between the claimant, for himself, and Lieutenant Geo.

The history of the case is as follows: In November, 1861, the claimants entered into a verbal contract with the Government of the United States, by and through Major L. C. Easton, then a quartermaster in the Army of the United States, by the terms of which the claimants agreed to sell and deliver to the government, and the government agreed to receive, at Fort Leavenworth, Kansas, from one hundred and sixty to two hundred and seventy-three wagons, with -out-fit complete, and…

This is a claim upon an express contract in writing, ancl is brought by original petition. The contract was made on the 17th of March, 1864, with M. W. Baldwin & Co., of Philadelphia, Pennsylvania. Mr. Baldwin died September 7,1866, and this suit is brought by the surviving partner, Matthew Baird.

Stow hacl been a contractor with the Quartermaster’s Department, as the witness Howland thinks, to the extent of a million and a half of dollars. Stow’s last contract, out bf which this controversy arises, was made with Captain Stoddard, Assistant Quartermaster, for the delivery at Alexandria, Virginia, of a large quantity of grain, and bore date October 10,1863.

The Assistant Attorney General in support of the demurrer: I. The petition does not allege the loyalty of the petitioners, as required by law. Act March 3,1863, section 12, (12 Stat. L., p. 765.) II. The contract set forth in the petition, as the basis of this action, is void for want of authority in the officer by whom it purports to be executed on behalf of the United States.

On 'tbe 18tb day of November, 1864, a contract between tbe plaintiff and defendants was executed, by wbicb tbe plaintiff bound bimself to sell and deliver to tbe United States, on tbe banks of tbe Mississippi Eiver, at convenient points for- landing boats and barges, on land to be designated by tbe defendants, at sucb times as might be required by said defendants, 10,000 cords of good merchantable wood, to supply tbe military post of Natchez.

In July 1864 Major General David Hunter, commanding tbe military department of West Virginia, issued two special orders, dated respectively tbe 7tb and 13tb of tbat month; tbe first directing tbe chief quartermaster of tbe department to purchase all tbe horses be could, not to exceed 1,000 horses, within tbe next seven days; tbe second directing him to purchase a second thousand horses, provided it could be done immediately, the' horses to be subject to thorough military…

On tbe twenty-eighth day of July, A. D. 1851, Thomas Cor-win, then Secretary of tbe Treasury, entered into an agreement with James Eldridge, of tbe State of New York, stipulating for tbe payment of… Held: possession of this property, he stored goods belonging to tbe Ligbt-house Board. Tbe amount of tbis item is one thousand three hundred and seventy dollars and seventy-five cents. Tbe items are correct, and 'the bill is unpaid.

The petition alleges an indebtedness of defendants arising from service and labor performed on. their behalf by plaintiffs in weighing and ganging certain cargoes taken as prizes of war by defendants and brought to New York City for condemnation.

The claimant, as the administrator of his deceased father, Erastus Foster, seeks to recover in this action the net proceeds of seventy-one bales of upland cotton of which the intestate was the owner, and which were seized in Mobile by the Union authorities after the .capture of that city in 1865. The record shows that the claimant is a citizen of the State of New York, and that his father, during- the late rebellion, and up to the time of his decease, was a citizen of Kansas.

On the 22d November, 1864, Lieutenant Colonel M. P. Small, Commissary of subsistence of the Department of Virginia and North Carolina, issued an advertisement, inviting proposals for the “ hides, tallow, hoofs, horns, &c.,” of all government cattle slaughtered within the limits of said department, to be delivered at Fort Monroe, Norfolk, in the State of Virginia, and at New-•bern, in the State-of North Carolina.

This is an action brought by original petition to recover damages for the non-fulfillment of a contract for the purchase of 50,000 bushels of corn. The contract was entered into by Colonel James Belger, quartermaster in the United States Army, on behalf of the defendants, on the 17th of December, 1861.

<p> On the Proofs. </p> <p>The United States consul at Mexico is placed by the retiring United States minister in charge of the legation, but is not authorized to “ exercise diplomatic functions” by the President, as required by the Act 18tli August, 1856. (11 Stat. L.,p. 139.) Stibsequenily the consul is appointed minister; he tdlces the oath required by the Act July 2,1862, (12 Stat. L.,p. 502,) before the consul-general of Switzerland.</p> <p>I. Under the Act 18i7i. August, 1856, (fit Stat. L., p. 139,) “ no' consul or officer shall exercise diplomatic functions in any case unless expressly authorized by the President so to do.” A retiring minister cannot insta,1 a consul in the legation, and thus authorize him, nor can the consul receive the piay provided by law for a cha/rgé d’affaires.</p> <p>II. The act July 2,1862, (12 Stat. L., p. 502,) which irrovides “ that hereafter any person appointed to any office of honor or profit, before entering upon the duties of such office and before being entitled to the salary or other emoluments thereof, talce and subscribe the following oath,” is not complied with unless the oath be' taken before an officer authorized to administer oaths by the laws of the United States. A foreign consul residing in Mexico has no such authority.</p>

1. On September 19, 1865, tbe United States, owning six locomotives, (this being one,) exposed tbe same for sale in tbe city of Portland at public auction; and tbe claimants purchased tliem. Thereafter tbe claimants, on tbe 24th day of September, 1866, exported this locomotive from tbe United States, the-same never having been used.

This case arises under “An act to provide internal revenue to support the Government and to pay interest on the public debt,’7 approved July 1,1862, (12 Stat. L., p. 450.) The claimant was, in the year 1862, and has been since, engaged in the business of brewing ale, porter, lager beer, &c., in the city of Reading, Pennsylvania.

<p> On the Proofs. </p> <p>In November, 18G4, an assistant quartermaster, requiring money in the performance of his duty, goes to a commissary serving in the same department and procures $5,000; the amount of a draft in Ms possession. He places the money in the breast of his military eoat and proceeds to Ms own quarters. Before arriving there he discovers that the money is gone, and returns on Ms iracle, hut ivithout success. He immediately notifies the proper military officers of the loss, and a search is instituted, hut the money not found. The commanding general orders a hoard of officers to hear and report on the case. The evidence establishes a high character for the claimant as to his integrity and habitual care,in the performance of Ms duties, and establishes the loss as utterly free from suspicious circumstances.</p> <p>Where a disbursing officer carries money in the way such officers generally carry it on similar occasions, and the money is lost, hut lost amid circumstances utterly free from suspicion, and is accompanied by the most diligent efforts to recover it, the disbursing officer will be entitled to a decree relieving him from responsibility under Act 9th May, 186B, (14 Stat. L., p. 44.)</p>

On the 13th day of February, 1863, the claimant’s stores, (six in number,) situated in Memphis, Tennessee, were taken possession of by the military authorities of the United States, and converted into military hospitals, and the use so continued to February 1,1864, when a contract to pay rent for the same was entered into between the claimant and the United States, through the agency of the chief depot quartermaster, Captain Eddy, at the monthly rent of $125 per store, and…

The claimant, Amherst H. Wilder, is the assignee of the late copartnership firm of J. C. and H. C. Burbank & Co., of which he was a member. This claim originated as follows: On the 17th day of July, A. D. 1SG3, Captain E. B. Carling, assistant quartermaster United States Army, ordered J. C. and H. C. Burbank & Co. to transport without delay 25,000 rations and 100,000 pounds of hard bread lrom'St. Paul to Fort Abercrombie, Dakota Territory.

This action is founded upon a contract made on tbe 1st day of July, 1866, between tbe claimant and Captain Theodore Scbwan, Tenth Infantry, United States Army, chief quartermaster of the district of Minnesota, acting for and on behalf of the United States for the transportation of all military supplies in said district for one year from the date of the contract, except such as were moved by government transportation.

The petitioner in this case claims $225 balance of $400 bounty promised him by the government on his enlistment, February 12, 1864, -as a private of Company D, Nineteenth regiment United States Regular Infantry. This claim rests upon the joint resolution of Congress passed January 13,1864, (13 St-at., 400,) and as promised by War Department orders of February 6, 1864.

This cause is brought in the Court of Claims under the provisions of the act of Congress entitled u An act to extend the jurisdiction of the Court of Claims,” approved May 9,1866, Chap. LXXY, p. 44, Yol. XIY, Statutes at Large.

This is an action brought to recover damages for a breach of two contracts for the sale of horses to the United States. The contracts are in writing-, both dated February 5,1864. The first one is for the delivery of 2,500 horses at St. Louis on or before the 16th of March, 1864. The material provisions, so far as this controversy is concerned, are as follows: “ Fourth.

This is an action brought by original petition to recover damages for the breach of a contract for the sale to the government of 40,000 stand of arms. The plaintiff rests his. case upon the allegations that he had a valid contract for the sale of 40,000 rifles, at $20 each, which he was prepared to comply with.

This is an action to recover damages for an alleged breach of a written contract for the purchase of 1,200 cords of wood, to be delivered at old Fort Lyon, Colorado Territory, for which the defendants agreed to pay $14,74 per cord.

This is an action brought by original petition to recover a balance clue upon an award made in favor of the claimant by the Attorney General under and in pursuance of an act of Congress.

This case came into court by original petition, and is brought by the claimant to recover additional compensation under the joint resolution of Congress approved February 28, 1867. The claimant was employed as assistant assessor of internal revenue, and performed Ms duties within the city of Washington.

On tlie 27tb clay of January, 1853, Mr. Corwin, the then Secretary of tlie Treasury of the United States, leased from Charles Watrous a certain lot of laud, with the building thereon, for use by the Government as a custom-house, at the city of Benicia, in the State of California, which had then, by recent law, been made a port of entry.

Tlie testator, Larkin, lield two offices at the same time, navy agent and naval storekeeper. Held: it has been assumed that the law authorized such payment because tbe statutes did not, in express terms, forbid it. A safer doctrine is laid down by Attorney General Black. (See page 123, 9 Opinions, and authorities there cited.)

Tbe petitioner avers that be tendered to Captain Farragut tbe service of bimself and boat, for tbe use and benefit of tbe United States, and that Captain Farragut, being in need of such a steamer, accepted bis offer, and took her into tbe public service, intending to restore her to the owner-in a short time after. Upon this state of facts, doés there not arise an implied contract of hiring f Tbe only element lacking to make it an express contract of hiring, is a fixed price.

This cause arises on contract. The plaintiff hired his vessel to the defendants, at the rate of two hundred and twenty-five dollars per m inth. The defendants agreed to keep her in repair .and return ber in as good condition as sbe was in when so employed. Tbe vessel was injured while in tbe service of tbe defendants. Tbe defendants pretended to repair ber, but did it only in part, and tbe materials used were bad, and tbe character of tbe workmanship was indifferent.

The claim in this suit is for 936 bales of cotton — 576 of sea-island and 360 of upland — seized by the United States authorities in Savannah, Georgia, in the months of January and Feb-uary, 1865, after the capture of that city by the United States forces. The claimants compose the Ann of Bernheimer Brothers, a loyal house of the city of New York. At the breaking out of the war there was due to them in the Southern States about $300,000.

The claimant, who is a subject of tlie King of Prussia, seeks to recover tlie proceeds of twelve bales of upland and one bale of sea-island cotton, of which he was the owner at the time of the capture of the city of Savannah, Georgia, by the United States military authorities, on tlie 22d of December, 1804. The evidence will be found to establish the following propositions : 1.

This case arises on tbe following state of facts: Prior to and at tbe breaking out of tbe rebellion, tbe claimants, Francis Furman and George Searight, under tbe name of Furman & Co., were engaged in tbe wholesale dry goods business in Nashville, Tennessee.

This case comes before the court upon tbe petition of Eobert Dillon, Terified 13tli April, 1867.

<p> On the Proof a. </p> <p> The claimant produces ten witnesses to establish Ms loyalty, %oho testify that they have no knowledge that he ever gave aid or comfort to the rebellion. The defendants, at the close of the claimants' testimony, show that he bore arms against the United States. The claimant, by cr'oss-examination, endeavors to show that he ivas conscripted, and his service involuntary. </p> <p>A claimant, on whom, it rests to establish, loyalty to the satisfaction of the court, may not suppress the truth, by concealing the fact that he bore arms ag'ainst the United States, even though it be susceptible of exx>la,-nation; and when all of his witnesses testifying to loyalty either conceal such fact, or show their ignorance of it, their testimony is worthless.</p>

This is ail original action, brought to recover the proceeds of five bales of sea-island cotton, captured at Savannah, Georgia. The plaintiff, John Spain, is a northern, man. His residence is and has been, since 1844, in Danbury, Connecticut., He is an Irishman by birth, and a ditcher by trade.

This is a claim for the proceeds of certain twenty bales of sea-island cotton and four bales of upland cotton, seized by the United States at Savannah, G-eorgia, at the time that city was captured by the Union forces. 1. The cotton in question was received at Savannah on account of consignment made by L. Kohns, in July and August, 1864, and was stored in what was known as Lower Hydraulic Press Warehouse, and was among that seized by General Sherman.

' This is an action brought to recover the proceeds of ninety-two (92) bales of cotton, under the fourth section of the act of Congress approved March 12,1863. The claimant, Horace B. Tebbetts, owned and cultivated three plantations in Louisiana, known as the “ Sauvterre,”- the “ Bodein,” and the “ Hollybrook ” plantations; and the cotton in controversy was seized from these plantations, carried to Lake Providence, Louisiana, then turned over to Captain J. G-.

This is a claim for proceeds of 8 bales of cotton taken at Savannah in the early part of 1865. This cotton was purchased by Messrs.

This cotton was purchased for the claimant by an agent, Ira G-. Wood, who was employed by the claimant to buy cotton for him during the years 1863 and 1864. The return of the Treasury Department shows the net proceeds of this cotton to have been $2,301 15. The claimant gave neither aid nor comfort to the late rebellion. The evidence by which this fact is proved is clear, satisfactory, and complete.

The claimant was, in her fiduciary capacity, the owner of three hundred and eighty-nine bales of cotton, the production of the plantation of her deceased husband, raised in 1862-’63, and taken by the Treasury agents in the spring of 1864, sold, and the proceeds paid into the Treasury, amounting to $112,-140 21. Said cotton was raised in the State of Arkansas, near Little Bock, and seized by the Treasury agency at that place.

The claimant was the owner, in the winter and spring of 1863 and 1864, of one hundred and two bales of cotton, which she' raised on her plantation, in Arkansas, near Little Eock. This cotton ivas taken possession of by the agents of the United States Treasury Department, sold, and the proceeds paid into the Treasury, amounting to $26,500 92; for which she prays judgment.

<p> On the Proofs. </p> <p> The claimant as administratrix seeks to recover the net proceeds of cotton belonging to her decedent, and paid into the Treasury. She fails to prove the loyalty of her decedent. </p> <p>Tlie Court of Claims lias not jurisdiction of a suit under the Abandoned and captured propeiiy act, (12 Stat. L., p. 820,) brought by an administrator, where the loyalty of the intestate is not proven.</p>

This case is brought under the captured and abandoned property acts, for the recovery of'the proceeds of eleven bales of sea-island cotton, captured at Charleston, S. C. The canse has been once before the court, and decided by it adversely to the plaintiff. A rehearing was granted. The court in its former decision found, as matter of fact, the seizure of the cotton and loyalty of the plaintiff, but denied the good faith of the plaintiff in the imrehase of the cotton.

The claimant, Mrs. Mina Berg', placed sixty-eight bales of cotton for storage on the loth of April, 1864, in the warehouse of George Pattern The sixty-eight bales remained, on storage in said warehouse until taken in possession bj7 the United States military authorities upon the occupation of Savannah, in December, 1865.

In tbe confident expectation tbat tbis claimant will recover, we estimate tlie amount to which he is entitled, as follows: Five bales of upland, at $131 20 per bale. $656 00 Five bales sea-island, at $237 61 per bale. 1,187 20 Making the sum of.. 1,813 20

<p> On Motion. </p> <p>The defendants move lo open a judgment heretofore-rendered, (4 C. Cls. B.,p. 579,) on the ground of newly discovered evidence, establishing the disloyalty of the claimant. They produce a bond to a “ medical purveyor of the Confederate States of America,” on ivhich he is surety, and his petition for pardon, in which he recites his guilt. The acts of the claimant in executing the bond and signing the petition are not controverted, but affidavits are relied upon to show such circumstances as would imply neither moral nor legal disloyalty. It is also insisted that the claimant is only the nominal party, and that the real parties in interest are loyal merchants in Hew York, who might have recovered in their own name, if Tail had not been substituted as the nominal claimant at the suggestion of the court. But it appears by the evidence on the trial, that the captured cotton was bought, held, and reported by Tait in his own name; that after capture he described it as “ his own property,” and that apart of the same cotton, not captured, he sold, and luis since Icept the proceeds thereof.</p> <p>I. Under the Act 25th June, 1868, (15 Stat. L., p. 75, 5 2,) which authorizes the Court of Claims to grant anew trial upon such evidence “as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been done to the United States.” it is fraud, wrong, or injustice, within the meaning of tlie act, if the claimant was guilty of having aided to overthrow the government of the United States and concealed such guilt from the court when mating proof of his loyalty.</p> <p>II. Upon a motion for a new trial, Act 25th June, 1868, (15 Stat. L., p.75, §2,) the court cannot try the case upon the merits; if the defendants show disloyal acts prima facie, it is sufficient; the claimant cannot admit them and show extenuating- circumstances or compulsion.</p> <p>III. Where one claiming- to be merely an agent or debtor at the South buys cotton, holds and (after capture) reports it in his own name, it comes within the rule in Bnimhall’s Case, (4 0. Cls. It., p. 50,) and an action cannot be maintained by the northern principal or creditor for the proceeds in the Treasury.</p>

This claim is for tbe proceeds of three bales of sea-island cotton, seized by tbe United States at tbe time of tbe occupation of Savannah by General Sherman, and shipped to Mr. Simeon Draper at New Tort and sold. The ownership and loyalty of tbe claimant and tbe seizure of the cotton by the United States, being proved, a judgment is respectfully requested from tbe honorable court for the amount of the proceeds of the same.

Louis F. Kóester, a naturalized citizen of the United States and a resident of Charleston, South Carolina, seeks to recover in this proceeding the “net proceeds” of 107 bales of upland, 15 bales of sea-island, 200 pounds loose sea-island, and 40 pounds loose upland cotton, which were reported to and taken possession of by -the United States authorities March 30 and May 16, 1865, at Charleston, South Carolina, under the act of Congress, approved March 12, 1863.

<p> On Motion. </p> <p>Woodruff and Co. bring their action, under the abandoned or captured property act, to recocer the proceeds of captured cotton. Subsequently, on the l'ith April, 1889, Camp brings his action to recover for services in saving and transporting the captured cotton, and demanding one-fourth of the proceeds, pursuant to an express contract made with a Treasury agent. The defendants before trial move for an order requiring the respective claimants to interplead, under the rule in Turner’s Case, (2 C. Cls. E., p. 390.)'</p> <p>Where one suit is to recover the net proceeds of captured property under the “ Abandoned or captured property act,” (12 Stat. L., p: 820,) and another suit is to recover for work and services in saving and transporting the captiued property, pursuant to an express contract with a Treasury agent, ono-fourth of the proceeds being the agreed conpensation, the defendants cannot be considered as stakeholders between adverse parties seeking to recover the same thing, and an order for interpleader cannot be al-</p> <p>Opinion of tlic court.</p> <p>lowed. The first suit is in the nature of a proceeding in equity to enforce a trust; the second of an action at law for services rendered to the trust estate. But the defendants will not ho required to pay over all the proceeds in their hands to the first claimants, while the second suit, relating to the trust, is outstanding.</p>

Tlie claimant is a British subject, friendly to the United States, and never gave aid or comfort to the rebellion; was domiciled at New Orleans, for commercial purposes, long anterior to the war of the rehellion, under the protection guaranteed by the treaties between the United States and Great Britain, of 3d July, 1815, 20th of October, 1818, and August 6,1827; that claimant, on the 17th July, 1862, took the oath of allegiance required by General Butler’s Order No. 41, and…

This is a claim to recover tlie net proceeds of eighteen bales of upland cotton, taken from the claimant by tlie Union authorities at Savannah, after the capture of that city, in December, 1864. The claimant is a citizen of Great Britain, domiciled in Savannah. The suit is brought under the act known as the captured and abandoned property act, of March 12, 1863.

The claim, as originally brought, was for eight bales of upland cotton and one hundred barrels of rosin. By permission of the court, claimant has withdrawn the claim for the rosin, not having any return from the department as to its receipt or the disposition made of it.

This case comes before the court by an original petition, filed on the 24th day of April, 18G8. Claimants ask for restitution of the proceeds of 171 bales of cotton, in pursuance of section third of the act of March 12,1863. They owned, at the-breaking out of the rebellion, a plantation near the small town of Lake Providence, in Louisiana, and on it raised a crop of cotton in the year 1862.

In this action the claimant, who is a citizen of the United States, seeks to recover the net proceeds of fourteen bales of upland cotton, and one hundred and seventeen barrels of spirits of turpentine, of which he was the owner, and which was taken from his possession by the Union authorities, after the capture of Charleston, in the spring of 1865. This cause claims the proceeds of 14 bales upland cotton and 117 barrels of turpentine, captured at the same place.

This is a claim under the act of March 12,1863, for the proceeds of cotton seized and sold as property captured by the Army engaged in suppressing the rebellion. The seizure of this cotton was made at two different times and places, and in two different lots. The first lot was seized in June, 1865, at Areola, Alabama; the second lot was seized at Mobile, in February, 1866.

Tbe claim is for six bales of upland eotton, seized by tbe United States at tbe time of tbe occupation of Savannah by General Sberman, and shipped to Mr. Simeon Draper at New York and sold. This cotton was purchased by tbe claimant July 21,1864. It was shipped to Savannah, and tbe agent of tbe Central Railroad has receipted for it.

This case was tried at the December term, 18G8, and judgment rendered for the claimant for $20,736, the net proceeds of 108 bales of cotton. Since its trial, the doctrines in regard to non-intercourse have received a more full discussion and construction in the United States Supreme Court, as well as in this court; and it is submitted that this case involves points which, to say the least, entitle it to a fall and deliberate reconsideration here.

<p> On Motion. </p> <p>A motion is made by the defendants in this court while an appeal is pending in the Supreme Court, to open the judgment and grant a new trial, upon newly discovered evidence. It consists of a bond to the Confederate States, on xohieh the claimant is a surety, and of an agreement between the claimant and a Confederate quartermaster. The bond and contract are produced on themotion, but none of the subscribing ivitnesses are called to prove the execution. The defendants’ counsel makes affidavit that he expects to prove the genuineness of the signatures, and that the principal in the bond ivas a quartermaster in the Confederate army. The claimant objects to the sufficiency of the evidence offered.</p> <p>Under the Act 25i7t. June, 1868, (15 Stat. L., p. 75, $ 2,) which allows this, court, while any suit is pending on appeal, on motion of the defendants, to grant a new trial “upon such evidence, although the same may he cumulative or other, as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been done to the United States," tlie formal “ evidence” required is not that which will be given on the trial. JEx parte testimony, of the kind and character usually admitted by courts, on the hearing of motions for new trials, making- out a prima facie case, is sufficient. Hence it is not necessary for the defendants to prora a bond by the subscribing witness, but to show a reasonable probability that they can prove it on the trial.</p>