Volume 6 — Court of Claims Reports

The petitioners claim $157,200 for damages done to and cost of repairing a steamship, together with the hire of the same, at i the rate of $350 a day, during her employment and while undergoing repair.

I. Tbe first claim in tbe petition in tbis case is, that tbe petitioner, a brigadier general, is entitled to tbe benefit of section 3 of tbe Act 3d March, 18C5. (13 Stat. L., 497.) Tbe petitioner, in support of bis cause, must rely apon tbe proposition that in law a brevet brigadier general is of equal rank to a brigadier general.

This is a case brought by original petition. Numbers 3784-, 3799, 4CG1, 4662, 5919, 3826, 3827, 5565, 5566, are similar to this case, and, by agreement with the Attorney General, are to be argued and decided together. The action is to recover a reduction made upon certain vouchers issued by Captain B. F. Simpson, Fifteenth Kansas Cavalry, acting, assistant quartermaster.

Claimant was collector of the United States port of Falmouth and Portland from May, 1853, to-April 1,1857.

The claimant was mustered into service as first lieutenant Company 0, Sixth Tennessee Volunteers, April 23, 1862, and claims to have remained in service until December 1, 1863. He was paid to August 13, 1S62, but was refused pay after that date. His claim is for salary as first lieutenant from August 13, 1862, to December 1, 1863, which he computes at $1,664 79. Some time in August, 1862, claimant tendered his resignation.

On tbe 28th' of July, 18G2, a contract was entered into be- - tween tbe claimant and tbe United States, through tbe agency of Captain James 1.

<p> On Motion. </p> <p>The claimants recover judgment in this court. The defendants move for a neto trial. The motion is overruled. Subsequently the defendants again move for a new trial, based npo.n the statement of the Assistant Attorney General that since the trial “the Supreme Court has heard and decided a similar case to an effect "which gives great and unexpected importance to a fact which can he indisputably established.” Bui the fact now sought to be established was known to the law officers of the government at the trial, the evidence relied upon to establish, it toas then in the defendants’ possession, and it does not establish the main fact. Moreover, the first motion for a new trial was based on the same grounds as this. The ease is, in fact, an appeal to the Supreme Court, and the motion is made under the Act 25th Juno, 1868, (15 Stat. L., p. 75,) allowing such motions to the defendants where “fraud, wrong, or injustice” “has been done.”</p> <p>I. It is not ground fora new trial that “the Supreme Court has heard and decided a similar case to an effect which gives great and unexpected importance to a fact which can he indisputably established,” if the fact now sought to he established by the defendants was known to the law officers of the government at the trial, and the evidence relied upon to establish it was in the government’s possession then. The law declared by the Supreme Court was the law then as much as now, and the defendants’ omission to establish the important fact was their mistake of law, which is no ground for granting them a new trial.</p> <p>II. The Act 25th June, 1868, (15 Stat. L., p. 75, § 2,) authorizes the Court of Claims to grant to the United States a new trial “ if fraud, wrong, or injustice” has been done to them. But when the alleged “injustice” results solely from the omission of their counsel to offer at the trial the very evidence then in their possession, which is now relied upon as furnishing ground for the new trial, the “injustice” was inflicted on the defendants by their own officers, and not by the claimants, and they cannot take advantage of it. The design of the statute is to protect the government frorq. unconscionable advantages gained over it without . laches or mistake on the part of its officers; not to give it unconscionable advantages over the claimants through such laches or mistake.</p> <p>III. Where a second motion for a new trial is based on the same grounds, and made amid the same circumstances as a former one which was denied, the denial of the first makes the matter res adjuclicata.</p>

<p> On Motion. </p> <p>The case comes into the Court of Claims under the Joint Resolution 3d June, 1864, (13 Stai. L.,p. 588,) which provides “that either party may appeal to the Supreme Court of the United States within ninety days.” Judgment goes for the claimant. The defendants duly appeal. ■ They now move to transmit to the Supreme Court “ a certified copy of the case, including the evidence taken therein,” notwithstanding that the Ernies of the Supreme Court ■require the Court of Claims to send up only “ the ultimate facts or propositions,” “ and not the evidence on which those ultimate facts are founded.” The defendants' counsel also present a written agreement xoith the claimant’s counsel that the evidence in the case shall he certified up.</p> <p>I. A private act referring a claim to the Court of Claims, and providing “ that either party may appeal to the Supreme Court of the United Slates within, ninety days,” does not by necessary implication repeal a public act, which . provides for similar appeals within the same time, but “under such regtt-lalions as the said Supreme Court may direet.” Joint Resolution, 3d June, 1864, (13 Stat. L., p. 588.) Act 3d March, 1863, (12 Star,. L., p. 765, § 5.) Tlio regulations of the Supreme Court remain in force, notwithstanding the general terms of the private act, and an appeal can he taken only in the manner thereby prescribed.</p> <p>II. Under the Rules of the Supremo Court, which require the Court of Claims to send up on appeals only “ the xiltimaie facts or propositions which the evidence shall establish,” “and not the evidence on which those ultimate facts are foundedthe latter court cannot certify up the evidence in the case, although the moving party presents to the court a written agreement entered into by both parties that the evidence in tho case shall be sent up.</p>

This action is brought in this court upon original petition, and is for the sum of $500,000 damages for the abrogation and annulment of a contract made January 7,1802, and accepted January 20, for… Held: and, in legal intendment, this act of the claimant -was voluntary. It does not lie with him now to say that this was not his intention. If he did not intend this, he intended to deceive the special commission and the War Department ; he intended a fraud.

<p>On Bonder(Ps Motion. •</p> <p>The private Act 14fcli February, 18C5, (13 Stat. L.,p. 595,) directs the Court of Claims to examine the claim of Atocha against Mexico, by reason of his expulsion therefrom in 1845, and, if found to he within the terms of the treaty of Guadalupe Sidalgo, to award damages, payable out of the fund provided by the ■ treaty. Eondero now files his petition, setting up an assignment of the claim by Atocha to himself, and moves that he be joined as a party in Atocha’s gase, and be allowed to prosecute the claim as assignee.</p> <p>Where a private act of Congress authorizes a party to prosecute his claim against the United States, arising under a treaty, and being for his expulsion from a foreign country, and the damages, if any, payable out of tbe fund provided by the treaty, the jurisdiction of the court cannot bo extended to one not named in the act, claiming to be the owner of the cause of action under an assignment anterior to the act. {Act lith February, 1835, 13, Stat. L., p. 595.)</p>

This is an action brought by original petition, and founded upon two contracts with the officers of the Quartermaster Department. In the fall of 1863,0. E. Fuller, a captain and assistant quartermaster in the United States army, was ordered by the Quartermaster General to proceed to the State of New York and purchase horses in the open market, in as large numbers and as rapidly as possible to meet the pressing exigencies of the public service.

<p> On Motion. </p> <p>Certain eases are pending in the Supreme Court on appeal. The claimants move for leave to file a replication to a special plea of the defendants, nunc pro tunc. The defendants object that'the record has gone up and this court lost jurisdiction. It appears that the special plea was filed a year after'issue joined, and that it never came to the knowledge of the claimants’ attorney. It is feared that, in the Supreme Court, it may be deemed confessed on the record.</p> <p>Although an inferior court loses control of the record and jurisdiction of the action when an appeal is taken and the record sent tip, yet a court may always correct its own records, and granting leave to file a replication mine pro tunc is not an exercise of jurisdiction nor an interference- with' the proper control of the appellate court. The filing ill the court below will effect nothing in the court above, unless that court should remit the record to give effect to the replication.</p>

<p> On Motion. </p> <p> A motion is made to refer these eases to a special commissioner. It is urged upon the ground that the hearing will involve the examination of a mass of vouchers and accounts. It is opposed on the ground that this court cannot part with any of its judicial discretion, nor delegate Us quasi jury duties to a referee. </p> <p>I. By tlie act to establish the Court of Claims, Act ‘Mth February, 1855, (10 Stat. L., p. 612, § 3,) the court has authority “ to appoint commissioners to take testimony by the act amendatory thereof, Act 3d March, 1863, (12 ' Stat. L., p- 765,) “it may appoint commissioners and may generally exercise such powers as are necessary to carry out the powers herein granted to it." The commissioners authorized by the amendatory aet, being unrestricted to any specified duty, may be appointed'to perform any official service which, in courts of law and equity, is ever performed by commissioners.</p> <p>II. Where a case will involve, upon the hearing, the examination of a mass of vouchers and accounts, with intricate arithmetical calculations, which can be better done by an accountant than a court, it is a proper case to be referred to a special commissioner to take proofs and state an account; and it will be so referred, at any time, upon motion. The practice upon such a reference settled and stated.</p>

<p> On Motion. </p> <p> A witness for the defendants, being under examination before a commissioner, is ashed a certain question by the defendants’ counsel. The opposing eownsel, who is also the counsel of the witness in another suit wherein he is a party, advises him not to answer, on the ground that the question has no relevancy to the ease on trial, but relates only to tltecase of the witness. He accordingly refuses to answer. The defendants thereupon move the court for an order requiring the witness to answer. </p> <p>A -witness will not l)e required to answer a question which he thinks relates to a suit wherein he is claimant, and not to the suit on trial, unless some assurance be given to the court that the question is designed and expected to elicit testimony relevant to the issue in the case in which he is examined.</p>

<p>Claimants were engaged,-in 1851, in carrying- out the written contract of A. G-. Sloo, in the transportation of the mails in their steamships, between New York and New Orleans, touching at Havana twice monthly each .way; and also between Havana and Chagres twice monthly. There is nothing claimed in these proceedings on account of that service. What is claimed is compensation for service rendered by them in addition to those performed under that contract, for the transportation of the-■mails from New York to Chagres direct, commencing on 13th August, 1851, and running to the 18th October, 1859, eight years and two months, and from New Orleans to Chagres and back for the space of two years and two months, to wit: from the 16th July, 1852, to 20fch September, 1854, two trips in each month each way on both lines. During all this time the service required by the contract was continued, except the part of it between Havana and Chagres, which was suspended during the direct service between New Orleans and Chagres.</p> <p>The Postmaster General desired to have the mails carried by the claimants in their ships over this new line, and the claimants -were willing to do it, but not without compensation. The Postmaster General did not feel himself authorized to agree to pay for it out of the department -fund, but at last consented that the wrhole matter of compensation might be referred to Congress, and they could determine what the compensation should be, but in the mean time the mails should be made up and sent by this new route. There is, and can be, no claim, and none was asserted by the Postmaster General or Secretary of the Navy at the time, that the claimants were bound to cany the mails on this direct route, by force of anything contained in the then existing contract, for the compensation they were then receiving for carrying the mails' over the contract routes. The claimants were willing to undertake the service, and leave it to Congress to determine equitably the amount of their compensation. The minds of the parties met on this proposition, viz, that the mails should be carried over this new route, and the parties carrying them should go to Congress for their pay. It was agreed that they should be paid, but the amount of the pay was not determined.</p> <p>The original contract in spirit, if not in letter, reserved to the government the right to exact the performance of such service from the claimants, the mode of compensation being therein provided. That provision, when the contract was submitted to Congress, as it was after being made, received the sanction of Congress, as is shown by its silent acquiescence, if not by its positive acts.</p> <p>Thus the agreement was sanctioned by the legislative department, and the acts of the Postmaster General and the Secretary of the Navy in the most distinctive manner affirmed and ratified it. Nay, more. The policy of the arrangement was approved and adopted, and the claimants permitted to go on, year after year, in the performance of the new service, without a word of objection, the government all the while receiving the profits and fruits of the service without paying one cent for them. In thelanguage of the Senate committee’s report, to be found on page 3, of the Document No. 63, “This improved service it was not. only proper for the government to supply, but was, under the circumstances, a duty of the government.”</p> <p>It thus appears that; the service was performed with a distinct understanding on the part of both parties that payment was to be made for it.</p> <p>The service having been rendered and the fruits of it accepted by the government, and the claimants never having been paid for it, the question is, wdiat was it really worth, and what should be 'allowed for it? By what rule shall the compensation be measured ?</p> <p>There are several ways of arriving at this result:</p> <p>1st. The original contract prescribed a rule which may be adopted, if the court shall be satisfied that that provision of the original contract governed the parties in making the new arrangement. If that should be adopted, the claimants would be allowed at the rate per annum of $290,000 for the vdiole time the mail was carried from New York to Ohagres direct, making-eight years and two months, producing’ the sum of $817,756 80; and for carrying the mails from New Orleans to Ohagres direct, for two years and two months, viz, from the 16th of July, 1851, to 20th September, 1854, the sum of $145,305 60, full contract price per annum; but from this must be deducted the discontinued service from Havana to Ohagres, $115,389 20, leaving-due claimants $26,916 40 per annum on that account, contract price; but they claim but one-half this sum, viz: $29,159 43 for this service, making in all claimed for the whole extra service, $846,916 23, by this rule.</p> <p>2d. But if the court should hold that the amount should be ascertained by the quantum meruit rule, then, bj- reference to tbe testimony, it will be seen that the claimants could have occupied the space used for the mail matter carried on this direct route with express freight at rates far more remunerative, and that “ carrying the mails is entitled to greater compensation than carrying freight of equal bulk; * * * and that it was worth at that time, under all the circumstances, $20,000 per mouth to carry the mails between New York and Aspinwall, and $17,000 between New Orleans and Aspinwall.”</p> <p>3d. That is. to say, for New York and Aspinwall, ninety-eight months, $1,960,000; and for New Orleans to Aspinwall, two years and two months, $442,000; but from these sums must be deducted the time of the discontinued service between Havana .and Aspinwall.</p> <p>I. There ivas no contract for compensation for any services outside of those performed and to be performed under the terms of the Sloo contract. There was not only no express contract, but both the Post Office and Navy Departments carefully guarded against doing or saying anything that could possibly be so construed as to raise an implied contract. The testimony relied upon to prove a contract runs all one way, and is perfectly conclusive in proving that there was no contract at all.</p> <p>II. It does not appear that the claimants performed any services either under or outside of Sloo’s contract. On the contrary, it appears that the United States Mail Steamship Company, a corporation, performed all the services.</p> <p>III. If there was any agreement at all, it was an agreement made by the claimants, or, rather, by the United States Mail Steamship Company, with themselves, that they would apply to Congress for additional compensation. Neither the Navy nor Post Office Department ever agreed to submit the question of additional compensation to Congress; on the contrary, both departments gave notice in advance that they would not favor an application of that kind.</p> <p>If the court should ever reach the question of damages in this case, it must be borne in mind that the claim is not for carrying a greater amount of mail than was contemplated by the Sloo contract, but for making an additional number'of trips. It does not appear that any vessel carrying the mail ran for that putrpose alone; on the contrary, it distinctly appears that both the direct lines of steamers.were established for other purposes, and were run before any mail was carried on them; and that, when the direct line between New Orleans and Aspinwall was found not to be jmofitable to the company, it was discontinued, without complaint on the part of the United States.</p>

This is a petition, based upon the provisions of the tenth section of the act of Congress passed July 28, 1866, entitled “An act to protect the revenue, and for other purposes.” 1. It appears from the evidence that the gin, having remained in warehouse beyond three years, was duly sold by the collector, May 28, 1866.

<p> On Motion. </p> <p> The defendants file interrogatories to he propounded to a witness in Mexico. The claimant mores to suppress them on various grounds, chief of which is that the witness has been already examined in the case. It ap>pean's that he was examined on hehalf of the claimant, and cross-examined by the defendants, on the identical subject-matter as to which it is now proposed to inquire of him; that he has since- sought to be substituted as the assignee of the claim, and the real party in interest, and that there is a possibility that, finding his claim as assignee excluded, he Ms sought to testify so as to defeat the claim altogether. </p> <p>Where a witness was called and examined by the claimant, and cross-examined by the defendants, they have no right subsequently to recall, and under the form of a direct examination reexamine him, on the identical matter that was previously the subject of their cross-interrogatories; and where it is iwssible that the witness is seeking' to testify again from an improper motive, viz, to defeat a claim which he has been excluded from prosecuting on his own behalf, the interrogatories filed by the defendants will be suppressed.</p>

The learned counsel on both sides presented extended arguments on the questions of law arising on tbe facts reported by the Secretary of War, and as established by the additional testimony; but, as the court was equally divided upon the admissibility of the reported facts, and the effect to be given to them, and also as to the admissibility of the testimony taken in addition to the agreed facts, no questions of law arising on these facts were settled, and judgment was…

I. The claimants, by their petition in this court, seek to recover the sum of $1,657 34, for the breach of the warrantee in the sale of certain lots of cotton, purchased by the claimants at a sale of government cotton, sold by John H. Draper, United States cotton agent and auctioneer, in the city of New York.

The claimants, alleging and setting out in full a contract with the defendants for the transportation of such military stores and supplies as may be offered to them by the officers or agents of the Quartermaster Department, bring suit for the recovery of the value of animals which Indians captured from them while performing their contract.

<p> On motion. </p> <p>B., on the one side, and JET. §• S., on the other, present conflicting claims to the War Department for the rent of land occupied by the defendants. The Secretary of War transmits the claims to this court, under the Act 25th June, 1868. B. voluntarily files hispetition and proceeds. S. ‡ S. fail to appear. The court thereupon orders a citation to be served upon IS. if S., directing them to appear and file their petition. On the return of the citation, they appear and plead to the jurisdiction of the court. But it appears that their claim, as presented to the War Department, is founded upon contract, and exceeds $3,000 in amount.</p> <p>I. When a claim is transmitted hy the head of an executive department to the Court of Claims, under the Act 25th June, 1868, (15 Stat. L., p. 75, § 7,) the claimant may voluntarily appear and file his petition, or the court, on the defendant’s application, will order a citation to issue, requiring him to appear and proceed.</p> <p>II. Where a claim transmitted hy the head of an executive department to the Court of Claims, under the Act 25ih Juné, 1868, (15 Stat. L., p. 75, $ 7,) appears to be founded upon contract for an amount exceeding $3,000, and involving- disputed facts, the court has and must assume jurisdiction. And if there be two contesting claimants, each seeking to recover the same rent for real property occupied by the defendants, one of them cannot resist in limine by a islea to tbe jurisdiction, on the ground that the suit will involve a disputed title to a tract of land.</p>

This is a claim for unliquidated damages, arising out of the violation of a contract by defendants, and has not been presented for settlement in any department. The defendants contracted, on August 25, 1866, with John Wanless, for the purchase and delivery, at Fort Lyon, Colorado Territory, of eight hundred tons of hay — two hundred tons at $16 per ton, and six hundred tons at $17 41 per ton.

<p>This is a claim for compensation in the nature of salvage, for saving a boat and cargo belonging to the United States, wrecked in the Potomac Biver in January, 1862.</p> <p>The general facts of the case are stated in a report transmitted to this court by the Secretary of War, under date of January, 1867.</p> <p>On or about the 10th of January, 1862, a boat, called the -Cookendorffer, left Washington, laden with public stores, destined for General Hooker’s army, then encamped on the Maryland side of the Potomac, about forty miles below Washington. She also carried some private stores for the officers and soldiers. When about sixteen miles below Washington, being towed by a tug-boat, she was cut through by the ice, and being about to sink, the captain of the tug attempted to run her ashore, but she sunk in four or five feet water, about eighty yards from the shore. Then the tug left her, and taking the crew of the barge on board, returned to Washington. In this condition she was •discovered by the claimant, who resided in the immediate neighborhood, and who, finding her entirely deserted, and not secured in any way, determined to save her cargo. Accordingly, with the aid of his own farm hands, he proceeded to unload the barge, putting the goods in a scow, bringing them to shore, and storing them in a large unoccupied house on his premises. He worked one entire day in this manner, and renewed his operations on the next day, when a government steamer, which had been dispatched from Washington for the purpose, with officers and soldiers, arrived. The officers took charge of the barge, removed the rest of her cargo to the steamer, demanded and received from the claimant all the goods that he had landed, and carried them off, together with the barge, which.'they raised and repaired.</p> <p>There is not the slightest disagreement as to the facts between the witnesses for the claimant and the official report from the War Department, except in one single particular, viz: Mr. Morgan’s official report, which the department sends as its own, states that the anchor of the barge was let go, and the boat made as,secure as possible under the circumstances, or at least Mr. Morgan says that such was the report made to General Rucker. The same officer, Mr. Morgan, when examined as a witness, says the anchor thrown out from the barge was “ a small hedge anchor with bow-line attached, to prevent her drifting and show that the boat was not abandoned.” The claimant’s witnesses say that she was not anchored or secured in any way.</p> <p>These apparently conflicting statements are easily reconciled. No one merely seeing a bow-line (which, we believe is an ordinary rope) hanging over the side- of the barge would suspect an anchor to be fastened to the end of it, and it is manifestly true, as stated by the witnesses, that the boat was not “ secured” in any way against the dangers to which she was exposed. These were, first, the violence of the winds and waves dashing over her; she was exposed in spite of her anchor; second, the depredations of the enemy, who were on the other side of the river in force, and could have removed all her cargo under cover of the night, or of the thick fog which was then prevailing, and which for three days prevented the government officers from attempting to save it. The boat was simply a wreck. He is therefore justly entitled to compensation.</p> <p>Considering all the circumstances, the danger not only of the loss of the boat and cargo to the government, but of their being taken by the enemy, the amount of salvage awarded would be, in an ordinary admiralty case, very liberal; and although the court is not now sitting in admiralty to allow salvage as such, that is a proper measure of compensation, and was adopted as such by this court in the case of Goidil v. The United States. (1 0. 01s. E., p. 184.)</p> <p>- Although the property of the United States cannot be proceeded against in rem. in a case like this, it is liable to all the burdens of private, property in similar circumstances. (The Davis, 10 Wallace.) . The claimant, as salvor, was lawfully in possession of the wreck and cargo, and had a qualified property therein. His rights could not be divested by being turned but of possession. He is, therefore, entitled to salvage upon the whole cargo.</p> <p>The only witness whom the claimant could obtain on this point was L. W. B. Hutchins. He had experience as a country storekeeper j saw the cargo as well as it could be seen under the circumstances, and estimated the value of the cargo undamaged at $50,000, and the damage to be 20 per cent., leaving $10,000 as the value of the goods saved.</p> <p>The policy of the law, perhaps, does not entitle the claimant to the entire salvage, although the whole labor was undertaken by him and executed, as far as it was executed by himself and persons employed and paid by him, and with his boat and teams; the facts are before the court, and they can apportion and award as may be deemed just. The rate is in their discretion. The claimant claims as his own share $5,000, or about one-eighth of the value of the goods saved, exclusive of the barge;</p> <p>The loyalty of the claimant is placed beyond question by his meritorious undertaking to save the military stores of the United States.</p> <p>I. Hs to the jurisdiction :</p> <p>1st. (•«.) The defendants respectfully submit that, assuming (e. cj.) salvage to he based upon a maritime implied contract,'the Court of Claims does not possess jurisdiction of this case of salvage.</p> <p>By the Judiciary Act 1789, section 9, (1 Stat. L., 76,) the district courts have exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, on. waters navigable from the sea, “ saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.” It is clear that this last clause saved only such preexistent remedies as the common law then gave. It did not include newly-devised remedies, unknown to the common law, for by specially saving common-law remedies it excluded statutory remedies. (Ashbroolc v. Steamer Golden Gate, 1 Newberry, 305.)</p> <p>The saved remedy is a common-law juridical remedy, in causes of admiralty and maritime nature, as distinguished from the remedy in admiralty or chancery.</p> <p>The non-existence of a common-law juridical remedy against the United States conclusively gives the district court, as against the defendants, exclusive cognizance of all civil causes of admiralty and maritime jurisdiction.</p> <p>(b.) The Act February 24, 1855, (conferring jurisdiction on this court, of claims against the government, founded upon contracts expressed or implied,) establishes a statutory court, with statutory procedure, (beginning by petition actions to enforce common-law rights,) and provides clearly a statutory remedy. This act must be construed with reference to the subsisting exclusive jurisdiction of the district court, in all admiralty and maritime causes, saving common-law remedies. (Sedgwick on Statutory, &e., Law, 125, and note.) Therefore, as a statutory remedy, the act does not affect the exclusiveness of the district court’s jurisdiction.</p> <p>(c.) The phrase “any contract, expressed or implied,” (in the Act February 24, 1855,) is incapable of conferring on the Court of Claims jurisdiction of a salvage claim, without repealing, pro tanto, by implication, the judiciary act of 1789.1</p> <p>A repeal by implication is not favored. (Sedgwick on Statutory, &e., Law, 127, and note.)</p> <p>There must be a positive, manifest, and total repugnance between tlie provisions of the new law and those of the old, to justify a repeal even pro tanto by implication. (Wood v. The United States, 16 Peters, 363.)</p> <p>(d\) There is no repugnancy between the Act February 24, 1855, and the Act September, 1789. The ay ell-marked distinction betAveen the class 'of contracts of admiralty nature and the larger class of purely connnon-laAV cognizance, induces a construction of the act of 1855 which limits the jurisdiction to contract's of the latter and more extensive class.</p> <p>2d. It is, however, contended that salvage is a purely equitable claim, and is eminently a subject for admiralty jurisdiction, aud not within that of the Court of Claims. (3 Kent, 329; 2 Parsons on Maritime Law, 595.)</p> <p>No common-law action lies for salvage service as suck (2 Parsons on Maritime Law, 595 ; Lepson \. Harrison, 24 B. L. & E., 208.)</p> <p>The claim here is for salvage service, as stick, there being neither averment, nor proof of contract.</p> <p>3d. The claim is founded on a tort of one Morgan.</p> <p>II. On the merits :</p> <p>(a.) The claimant here demands a reward for unnecessary and useless labor. His efforts were justified by neither the appearance nor reality of legal abandonment of the Cooken-dorifer. The anchor cast, the immediate report of Captain Boss of the Keystone, the promptitude of relief, prove that the temporary abandonment was for the purpose of returning with aid to recover the wrecked boat. These facts negative a derelict, in the maritime sense of the word. (The Centurión, Ware’s B., 43; The Bee, Ware’s B., 339, 340; T. P. Leathers, New-berry’s B., 427; The Schooner Emulous, 1 Sumner, 209.)</p> <p>The property Aras in no danger of destruction or capture. The violence of the current or tide seemed not to require Bryan’s instant action; for, having discovered the Avreck on the morning of January 9, he concluded to Avait twenty-four hours before attempting to saAre the cargo.</p> <p>The dread of capture Aras founded on nothing but supposition and speculation. The property Avas claimed to be salved,.lest reported rebels might discover the wreck through a fog .that Arould screen their operations.</p> <p>(b.) The claimant’s labor was of no benefit to the defendants. “ The principle is that without benefit salvage is not payable.” (.Talbot x. Leeman, 1 Grand), 18.)</p> <p>(c.) The greater portion of the salved property belonged to private owners, and not to the defendants.</p> <p>(d.) The value of the cargo is not proved.</p>

The claimants, by their original petition in this court, seek to recover damages for the violatiou of a contract, which thej!claim to have made with an authorized agent of the United States, to furnish “ cast-iron head-blocks” for the soldiers’ graves in national cemeteries. They claim, by reason of the violation of the said contract on the part of the United States, the sum of #150,993 33. lsí.

<p> On the Proofs. </p> <p> The Quartermaster Department charters a schooner, the marine risk to he home by the owner, and he agreeing that she shall he kept tight, staunch, and strong, in every respect fit for merchant service, at his cost. By stress of weather and springing a leak, she is forced to put into St. Thomas. The master, without attempting to communicate with the Quartermaster Department, hypothecates the vessel and cargo. The bottomry bond is not paid, and the vessel and cargo are libelled after their arrival in the port of New York. It is held that the district court has no jurisdiction to detain a cargo belonging to the government, and it is discharged from the marshal’s custody. The Quartermaster Department agrees with the ovme>' on a revaluation of the cargo andreapporiionmemt of the obligation of the bond. This agreed proportion it pays. While the vessel is in the marshal’s custody the Quartermaster Department requires the master to report daily, and the cargo remains on board. After the decree dismissing the libel, the cargo is unloaded and the vessel discharged. The Quartermaster Department refuses to pay the agreed wages of the vessel for the time she xvas in the custody of the marshal. The owner seeks to recover up to the time of the vessel’s discharge by the Quartermaster Department. </p> <p>I. Where the cargo "belongs to a single individual known, to the master; the ship in a port near to that in which the owner is resident; the means of communication sure and speedy; the probable delay inconsiderable; the cargo not of a perishable kind; the amount of money to be borrowed so large as to be sure to bring the cargo within the operation of the bond, there, the master cannot hypothecate the cargo for the repairs of the vessel without first communicating with its owner. Hence,' the master of a government transport, which has put into St. Thomas in distress, has no right to hypothecate the cargo without first communicating with the proper officers of the government.</p> <p>II. The district courts of the United States have not jurisdiction to detain a cargo belonging to the government, and ’ where such a cargo has been libelled under a bottomry bond, it must be discharged from the custody of the marshal.</p> <p>HI. Where the charter of a government transport provides that the marine risk shall be borne by the owner, and that the vessel shall be kept tight, staunch, and strong, and in every respect fit for merchant service, at Ms cost, the defendants are not liable for the ship’s wages at a time when she is in the custody of a marshal under a libel to enforce a bot-tomry bond given by the master for repairs upon the vessel, notwithstanding that the cargo remains aboard, and that the master is required to report daily to the Qnartormaster Department, and that the vessel is not discharged from the defendants’ service until after her release from the custody of the marshal, and that the charter-party iDrovides that she shall be paid at a certain rate until discharged. Her detention under the libel comes within the obligation of the owner that she shall be kept in every respect fit for merchant service, at his cost.</p>

This is a claim for compensation for tbe use and occupation of Dutch. Island, the property of the claimant, by the United States. In the year 1863 the War Department authorized Major E. B. Hunt, of the Engineer Corps, to negotiate for, and finally enter into a contract to purchase Dutch Island, lying in Narragansett Bay, off the coast of Rhode Island, intending to fortify the island for the defence of the entrance to Narragansett Bay.

<p> On the Proofs. </p> <p>A company in the Second Ohio Volunteers, during the war of the rebellion, becomes reduced below the minimum, number entitling it to a second lieutenant. The claimant being first sergeant of that company, and the office of second Imiten-ant being vacant, is commissioned as such by the governor of Ohio. Be is also assigned to duty in that company by the colonel of the regiment. He applies to be mustered in, but the mustering officer refuses. Nevertheless, he remains on duty, being the only commissioned officer with the company, commanding it several times in battle, inclining all the responsibilities and performing all the duties of a commissioned officer. The Pay Department refuses to pay him except as first sergeant.</p> <p>When one is commissioned as second lieutenant in a volunteer regiment by the governor of the State whence the regiment came, and is assigned to duty by the colonel commanding, in a company of which he has been first sergeant, and after applying for muster-in and being refused, continues to incur all the responsibilities and perform all the duties of a commissioned officer, commanding the company in battle and being the only officer attached to it, he is entitled to be paid as such, notwithstanding that at the time he was assigned to duty, it had fallen below the minimum number entitling it to a second lieutenant.</p>

The action of debt on a judgment is an action founded on a contract, and requires nothing but the judgment in full force and unsatisfied to support it. (3 Blackstone’s Corn., ICO.) The judgments or decrees of the Court of Claims are evidence of debt existing against the United States, in favor of a person in whose name the judgment or decree is rendered. This action may therefore be maintained under the general provisions of the Act February 24, 1855, establishing the court.

This is an action brought by original petition to recover the proceeds of three hundred and sixty-six hogsheads of tobacco. The claimants are citizens of France; they purchased this tobacco in Richmond, Virginia, in the summer of I860. Before it was removed the war of the rebellion commenced and a blockade of the rebel ports established.

This is an action brought by original petition to recover the net proceeds of ninety-five bales of cotton seized at Mobile, Alabama, upon the occupation of that city by the United States forces. The claimant, who is a citizen of France, asks for relief under the third section of the Act March 12th, 1863, (12 Stat.

<p> On Motion. </p> <p> Judgment is given against the claimant on the ground of disloyalty. Ser eoitnsel moves for a new trial on a statement showing that she took the amnesty oath. The excuse offered for not proving that fact on the trial is that it teas unknown to the counsel who tried the case, and the claimant,- being an aged woman, unacquainted with business,-did not know of its importance, and therefore did not communicate it to her counsel. </p> <p>It is not sufficient for a new trial that important evidence was unknown to the counsel who tried the case, which was known to the party; and that she was an aged woman, unacquainted with "business, and ignorant of the value of the evidence.</p>

<p>■ On Motion,</p> <p> The claimants move for a new trial on the grounds that the amount involved -is too small to he the subject of appeal; that pi-oof of loyalty can he supplied if time he allowed for that purpose; that the record on which judgment was rendered does not show any acts of disloyalty on the pari of the claimants. </p> <p>The Act %Mh February, 1855, (10 Stat. L., p. 612, § 9,) establishing the Court of Claims, provides that after a decision “ the said court shall 'not at any subsequent period consider said claims unless such reasons shall be presented to said cowrt as, by the rules of the common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial." The provision applies to the court under its present organization, and precludes a new trial where, by the rules of the common law o.r of chancery, it would not be granted.</p>

<p> On Motion. </p> <p>The defendants move for anew trial on the ground of newly-discovered evidence. It is comprised in certain payers certified hy the Secretary of the Treasurg tohe“ papers in the custody of this department, which, with other papers, records, &c., were received from agents of this department as a part of the archives of the late so-called Confederate government.” The defendants offer no other proof of the authenticity of the documents sought to he used.</p> <p>Papers certified hy the Secretary of the Treasury to have heen “ a part of the archives of the late so-called Confederate government” cannot he admitted in evidence unless proved hy proper testimony. The certificate does not establish their authenticity; nor can the government, as defendants in this court, he exempted from the rules of evidence which apply to claimants.</p>

<p>On the Proofs.</p> <p> The wife of M., dwring his absence from home, induces I<\ to advanee United States Treaswry notes to discharge a mortgage, pursuant to a military order. The mortgagee refuses to receive the notes, and the commanding officer directs that they be seized and paid over to the Treasury, on the ground that both mortgagor and mortgagee are disloyal. ■ After the rebellion the executrix of M. brings a suit to recovo.r the notes as captured property ; F. also brings his action, and, an order, in the nature of an interpleader, is alloioed. ' The eases are heard together. </p> <p>When a loyal citizen advances Treasury notes during the rebellion to satisfy the mortgage of another, and the notes are seized by a military officer and turned over to the Treasury, an action -will lie to recover them under the Abandoned or captured property act, (12 Stat. L., p. 820.)</p>

<p>In this action the claimant seeks to recover the net proceeds of eight bales of upland cotton, of which he was the owner, which were seized by the Union authorities, under the Act March 12,1863, providing for the seizure of captured and abandoned property, at Savannah, Georgia, after the capture of that city, in December, 1864. We shall proceed to show, by citations from the testimony embodied in the record, that the three main facts essential to a recovery are established.</p> <p>I. That the claimant toas the oioner of the cotton. — The fact of the purchase of the cotton is proven by the testimony of Robert W. Fisher.</p> <p>II. That the cotton toas seized and sold, and that the proceeds have been paid into the National Treasury. — The return from the War Department, in answer to a rule of this court, shows the registration and shipment of the cotton, as follows :</p> <p>“ Transcript of entry from hoolc marked £ D,’ registration of claimants of captured cotton at Savannah, Georgia.</p> <p>“ W. H. Bubboughs.</p> <p>“1865.</p> <p>“ Jan. 19. 8 bales upland, stored in back store 97 Bay street.</p> <p>D. B. F. Taken from store February 8, 8 bales. Remarks: 3,720. 8. 3,720.”</p> <p> u Transcript of entry from boolc marked lH,’ statement of captured cotton from Savannah, with names of claimants. </p> <p>“W. H. Btjbbotjg-hs.</p> <p>“1865.</p> <p>“ Feb. 8. Ship Mayflower. A. B. 8 bales upland.”</p> <p>That all the cotton shipped from Savannah to New York was sold there, and the proceeds paid into the National Treasury, as well as the net proceeds per bale, is fully shown by the deposition of Francis Bobinson, the cotton agent of the government in New York, which is used in this case by agreement,^and . attached to the record.</p> <p>III. That the claimant rendered no voluntary aid or comfort to the late rebellion, but consistently adhered to the United States.— The record shows and will satisfy the court that the claimant was in feeble health, in consequence of which he was enabled to keep out of the rebel service, and that he moved about from place to place to avoid conscription.</p> <p>The point in question is the loyalty of the claimant.</p> <p>His residence was within the sway of the rebellion from its commencement to its close; during the first year of the war in Virginia, where, according to the statement of his own witness, (and uncle,) it was unsafe for any person, even suspected of sympathy with the North, to reside.</p> <p>No act exhibiting a feeling of loyalty to the United States, except that of giving tobacco to the Union prisoners of war on a railroad in Georgia, in November, 1863, is proved.</p> <p>No general reputation as a Union man is shown; and the expressions by him of Union sentiments, which are sworn to, are of the most subdued kind.</p> <p>Nothing is shown inconsistent with complete loyalty to the confederacy. The evidence in his behalf leaves. him within reach of the rule, that he that was not for us was against us.</p>

<p> On Motion. </p> <p> The claimant moves for a new trial on the ground that he ivas insane at the time of the former tnial, and that if not insane he might have shown the loyalty of the agent ivho purchased for him the captured property. It appears that the ease was carefully considered on the forma' hearing, and did not turn on the loyalty or disloyalty of the agent. </p> <p>The insanity of a party at the time of trial is no ground for a new trial after he has been restored. Unless it is made to appear to the court that a different result would probably be reached if a new trial were granted, or that injustice was done on the original trial, the former decision will not be disturbed.</p>

The claim in this case is for the proceeds of seven bales of upland cotton, seized after the occupation of Savannah by the forces under command of General Sherman. The claimant is a body corporate, chartered in the year 1862, for religious purposes, by statute passed by the legislature of Georgia, with powers to buy and sell, and to sue and be sued.

The claimant, a citizen of Arkansas, seeks to recover the net proceeds of thirty bales of cotton, wrested from him, in the early part of 1863, by the military forces of the United States. He brings his suit under the provisions of section 3 of the Act March 12, 1863, commonly called “ The captured and abandoned property act,” and the evidence afipears to place him fairly within the provisions of said statute, and to entitle him to recover.

<p>This is a claim tinder the Act March 12, 1863, for one hundred and fifty-tbree bales of cotton, captured at Mobile, Alabama, by the forces of the United States, in 1865.</p> <p>It appears from the evidence that James Kilduff, the claimant, in March, 1865, owned one hundred and fifty-three bales of cotton, stored in his “ pickery,” and that it was seized by the United States authorities, by direction of Captain Samuel Lappin, United States quartermaster, and hauled to Planter’s warehouse, occupied by N. W. Perry, and there shipped on. the ship E. L. Thayer to General Yan Yliet, New York.</p> <p>This cotton the claimant collected during five years while he was doing business as a cotton-picker. It was bought as damaged cottou and picked over and put in merchantable order.</p> <p>Nelson W. Perry testifies that on the capture of the city, in April, 1865, all the cotton in the city was taken by the United States authorities. Captain Lappin, assistant quartermaster, superintended the disposition of the cotton. In May, 1865, a lot of one hundred and fifty-three bales was brought from claimant’s pickery to witness’s warehouse, where, under Lappin’s supervision, it was classed, marked, and prepared for shipment. Witness recognizes the invoice exhibited and annexed as the invoice of said cotton, shipped per ship E. L. Thayer to General Yan Yliet, as Kilduff’s cotton. It corresponds with the record in witness’ possession.</p> <p>* The War Department certifies the signature of Captain Lap-pin to.the original invoice.</p> <p>Captain Samuel Lappin, assistant quartermaster, reports three thousand two hundred and twenty-two bales of cotton captured at Mobile, and shipped to General Yan Yliet, in New York, May 13 to May 30,1865. Yán Yliet was ordered to turn it over to Draper.</p> <p>Kobinson proves the receipt-of the three thousand two hundred and twenty-two bales by Draper, among what was the cargo of the E. L. Thayer.</p> <p>The same witness shows that of the three thousand two hundred and twenty-two bales received at New York, three thousand two hundred and twenty-one sold for $452,019 33, in coin, and the expenses were $22,522 61 in currency. The rate of currency to coin is fixed by the Treasury sales of coin: thus $7,902,264 11 in currency for $5,652,286 09 in coin, makes the rate, viz: 139.8.</p> <p>At this rate, the coin, $452,019 33, amounted to $631,923 02 And deduct expenses. 22,522 61</p> <p>$609,400 41</p> <p>Then 3,221 : 609,400 41 : : 153 : 28,146 96.</p> <p>The claimant was an old man, over the age of conscription; a quiet, unlettered man, who was doing well enough under the old government, and desired no change. He himself was examined and swore that he never gave any aid in any way to the rebellion, and a number of witnesses testifies to the same effect. So far as he ever committed himself to any outward act or expression, it was in favor of the government of the United States.</p> <p>The evidence as to the claimant’s loyalty is brief, and as the court will, according to their practice, carefully examine it, we deem any abstract of it superfluous.</p> <p>We submit that he is entitled to judgment for $28,*146 96.</p>

This is a claim under tbe Act March 12,1863, for tbe proceeds of seven hundred and ñfty-one bales of cotton, captured by General Slier man at Savannah, Georgia, in December, 1864. Tbe claimants were merchants in Savannah, Georgia, at tbe outbreak of tbe rebellion, engaged in buying and shipping cotton. Being cut off from business, and compelled to sell their ships, one of which was in port, and the other abroad, they invested their means in cotton in 1861-’2.

This claim is for tbe proceeds of twenty-four bales of upland 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 York, and sold. Marmaduke Hamilton, who ivas in tbe employ of Colonel Ban-som, and bad charge of all tbe seized cotton at Savannah, kept a book in which be kept a record of tbe names of claimants arid tbe number of bales, and tbe names of shippers and tbe number of bales shipped.

The claimant, a colored citizen of Charleston, South Carolina, brings this suit under the third section of the act March,. 1863, to recover the value of three bales of upland cotton taken from him by the officers of the United States on or about May 20, 1865, and shipped to New York and sold there.

<p> On Motion. </p> <p> Judgment is for the defendants. The claimants appeal to the Supreme Court, l>y presenting their application for the allowance of an appeal in open court, and having the allowance entered on the doclcet. The record on the appeal has not been transmitted lo the appellate court. They now move to vacate the appeal in order that a motion may he made for anew trial on newly-discovered evidence. </p> <p>An appeal to a superior court is tlie right of tlie party; it is not subject to the discretion of the inferior court, nor can that court limit or modify its legal consequences. Hence, when a claimant in the Court of Claims takes his appeal to the Supreme Court, the jurisdiction is transferred, and the former court has no power to vacate the appeal, though on the party’s own motion.</p>

This claim is for seventy-seven bales of upland cotton, taken by tbe United States authorities at Mobile, and sent to New York and sold. This cotton was purchased for the claimant by C. Dickmann, with money which had been furnished to him by the claimant. The evidence of the seizure of these seventy-seven bales, which had been stored with N. W. Perry & Co. by C. Dickmann, is complete. As to loyalty, the evidence is abundant and conclusive.

This claim is for sis bales of upland cotton, owned by the claimant, and taken by the United States authorities at Savannah, and sent to New York and sold. The testimony shows that two bales and a large quantity of loose cotton belonging to the claimant were taken by the United States authorities when General Sherman’s army took possession of Savannah. The two bales weighed 510 and 515 pounds respectively, and there were two or three thousand pounds of loose cotton.

Tbe above-named claimants, in tbeir petition, set forth that they were tbe owners, in tbe fall of tbe year 1862, of one hundred and forty-four bales of cotton, stored upon tbe plantation of one E. O. Boss, on tbe west side of Bayou Macon, in tbe parish of Carroll, and State of Louisiana; that in tbe month of May of said year, being fearful of tbe destruction of said cotton by tbe so-called rebel authorities, they hauled said cotton from tbeir plantation, on tbe east side of…

The claim in this case is for the proceeds of ten-hales of upland and seven hales of Sea Island cotton, in all seventeen bales, seized by the United States after the occupation of Savannah by General Sherman, and afterward shipped to New York, and there sold on government account.

<p> On the Proofs. </p> <p>A feme sole, r esiding in Charleston, buys cotton. After the capture of the city she mairies. After the marriage the cotton is seized, by the United States military forces. The husband and wife bring suit in their joint names. Subsequently he dies. The wife continues the suit in her own name and proves her loyalty.</p> <p>By tlie ccmmon. law, as prevailing- in South Carolina, the personal property of afane sole vests on marriage in her husband; and if the husband dies, a suit relating to such property must be brought by the administrator anil not Tby tlie widow. Therefore, where oottón, the personal property • of tlie wife before marriage, was captured "by the army after marriage, a suit for the net proceeds under the Abandoned or captured property act cannot he maintained by a widow in her own right.</p>

As to the facts. Tbe proof is clear that La Plante, tbe claimant, resided in Bordeaux from a time prior to tbe commencement of tbe rebellion until tbe month of September, 1863, when be came to tbe city of New York. Tbe cotton was purchased in Augusta, Georgia, in March, 1863. This presents a case of an alien who resided in France purchasing cotton within tbe confederate territory during tbe war.

The claimants in this case, are British subjects, and bring action to recover the proceeds of three hundred and nine bales of upland cotton, taken possession of by the United States after the occupation of Savannah by General Sherman. The proof of the ownership of the cotton is clear, and is se forth in the depositions.

This is a claim for the proceeds of five bales of Sea Island •cotton, belonging to the claimant, and seized by the United States authorities at the time'of the occupation of Savannah by the army, under General Sherman, and sent to New Tort and sold. The proof of ownership) is full and precise. It was bought by E. J. Gowdy for the claimant, and paid for with claimant’s money then in his hands.

This suit is brought to recover tbe proceeds of one hundred and sixteen bales of cotton captured near Natchez, Mississippi, in August, 1863, by the military forces of the United States, .and subsequently turned over by them to the Treasury agents, who sold the same and paid the proceeds into the Treasury.

This case was heard, at a former term, by a majority of the ■court, and, by a divided court, an order made to dismiss claimant’s petition, (4 0. 01s. B., p. 512.) Subsequently a .new trial was granted, and the case is now before the court, on the former evidence, together with new evidence. 1 ■ With the additional evidence now in the case, including the important letters passing between the agent, Henry, and the claimant, Stoddart, -on neutral territory, after the purchase…

Of tbe three claimants, H. L. Schreiner is a citizen of the United States; the other two are neutral aliens and subjects of the Duke of Saxe-Coburg-Gotlia, of the North German Confederation.

This action is brought under the Act of March 12,186.3, known .as the Captured and abandoned property act, to recover the net proceeds of one hundred and seventy-nine bales of upland cotton, of which the claimants were the owners, seized in the State of Louisiana by the Federal authorities in 1863, and which were sold by the government, and the proceeds paid into the national Treasury.

<p> On the Proofs. </p> <p> A steamer, owned in Charleston, is impressed into the rebel-service, and detained as a military transport, but paid under a charier. She is sold at an administrator's sale while so employed, and is bought by the claimant. She continues to be employed in the rebel service till the capture of Charleston. The owner then places her in the United States service, under a parol agreement with an engineer in th-e navy, approved afterward by the quartermaster at Charleston. Eventually she is sold ivith captured vessels, and the proceeds placed in the abandoned or captwred property fund. </p> <p>The Abandoned or captured property act (12 Stat. L.; p>. 820, § 1) provides that it shall be lawful for the Secretary of tho Treasury to appoint agents to receive and collect all abandoned or captured property, &c., with a proviso, “That such property shall not include any hind or description which has been used, or which was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance stores, ships, steamboats, or other ioater craft, and their furniture, forage, military supplies, or mwnitions of war.” The Act 2d July, 1864, (13 Stat. L., p. 375, § 3,) though in terms extending the former act to “descriptions of property mentioned” in the Acts 13th July, 1861, and T7ih July, 1862, does not in effect extend it as to any description of property mentioned in the prroviso. The proviso, as it stands, excludes from the jurisdiction of this court the case of a steamer increased and used in the rebel military service.</p>

This is a captured, and abandoned property case. Louis De Bebian, as administrator of bis father’s estate, is the original claimant and plaintiff in this court, seeking to recover the proceeds of two hundred and eleven bales of cotton captured by the United States forces at Wilmington, North Carolina, upon the occasion of the capture of said city.

Martinsburgh, in Berkeley County, West Virginia, belonged to the insurrectionary State of Virginia until March 10th, 1866, (14 Stat. L., p. 350.) A. F. Cramer, who resided there until the autumn of 1862, is to be considered in tbis action as the real agent of A. F. Cramer & Co., and not W. H. Morrison, who was the sub-agent of A. F. Cramer. The distinction is important, as it shows that Qrossineyer's Case affects the claim favorably, and not adversely.

<p>This suit is instituted in this court b3r original petition, under the act of March 12,1863, and the claimant seeks to recover by it the “net proceeds of one hundred and thirty-four bales of upland cotton, taken. from his possession after the capture of Savannah, Georgia, by the United States military forces under command of General Sherman.”</p> <p>The ■claimant establishes by most conclusive evidence all the facts required by the statute under which he prefers his claim.</p> <p>I. That he was the owner in gobd faith of the cotton, the proceeds of which he claims in this suit.</p> <p>II. The cotton owned by the claimant, the proceeds of which he claims, was seized by the United States, and the proceeds thereof have come into the treasury of the United States.</p> <p>If it is objected that the record furnishes evidence of the shipment of only ninety-nine bales of cotton, then we reply that we have other competent evidence of the fact of the shipment of this cotton. That evidence is found in a public record, and is the official report made by Colonel Hansom, to the Quartermaster General, as to the disposition made by Mm of the cotton captured at Savannah; this is to be found in the House Ex. Doc. No. 97, 2d session Thirty-ninth Congress, p. 82, and is as follows:</p> <p>Savannah, Georgia, March 21,1865'.</p> <p>General : I have the honor to say that I have tranferred to the Treasury Department upwards of thirty-eight thousand bales of cotton to present date. The provost marshal is now making a thorough search of all houses in this city, to discover all small lots of cotton thathave not been reported. I hope to close up the business tliis week. I shall then report, as ordered, to you in Washington, unless other orders are received from you. .</p> <p>I am, general, respectfully, your obedient servant,'</p> <p>H. 0. EANSOM,</p> <p> Lieutenant Colonel and Quartermaster. </p> <p>General M. C. Meigs.</p> <p>The officer charged with the seizure and shipment of this cotton reports that, at the time the above report was made, all cotton, except such as had not been reported, had been transferred to the Treasury Department. The cotton claimed in this suit, therefore, having been previously reported, as required by the order of Colonel .Eansom, must have been seized and shipped at the time this report was made.</p> <p>The testimony of Francis Eobinson, to whose deposition the attention of the court has been so often directed, shows the sale and payment into the treasury of the proceeds' of all the cotton seized at Savannah. According to the testimony of this witness, the net proceeds of a bale of upland cotton captured at Savannah was $190 47.</p> <p>III. The claimant gave neither aid nor comfort to the late rebellion, nor to persons engaged therein, but consistently adhered to the United States.</p> <p>The vigilant counsel for the Treasury Department has not assailed or called in question the conclusive evidence by which the loyalty of this claimant has been established.</p> <p>It is submitted, therefore, that this claimant brings himself within the strictest requirements of the statute under which this suit is instituted here -, and that he should recover the “net proceeds” of one hundred and thirty-four bales of cotton, amounting, as we have shown, to the sum of $25,522 98. .</p>

This is a claim for the recovery of the proceeds of twenty-seven bales of cotton, weighing ten thousand pounds, owned by the plaintiff, and captured at Dalton, Georgia, in June, 1864, by Col. Laibold, of the Second Missouri Infantry. The plaintiff resided during the rebellion, and for many years before, at Cleveland,'Bradley County, Tennessee. Various of his neighbors testify to his continuous loyalty to the United States.

<p>This is an action brought to recover the proceeds of the sale of 354 hogsheads of sugar, 900 barrels of molasses, and 523 molasses barrels, the property of the claimant, taken from his plantations, Hollywood and Southdowii, in the parish of Terre-bonne, State of Louisiana, during the fall and winter of 1862 and 1863, by the United States military authorities, then in possession of that section of the country, and which property was sold by said authority, and the proceeds paid into the Treasury of the United States.</p> <p>Through the returns made b3T the War Department in this case, supported as it is by the evidence presented to the court, there is no.question as to the claimant’s ownership of the two. plantations, Hollywood and Southdown, or the personal property found thereon and taken off by the agent of the United States ; certainly none to the growing crop, the result of his own labor and expense.</p> <p>The ownership conceded, no alienation of the property having been made in the life-time of W. J. Minor, the right to the proceeds vests in the executrix, whose certificate of appointment, duly authenticated, is filed.</p> <p>The testimony shows a course of most consistent loyalty by the claimant that neither drooped nor flagged during the whole period of the late rebellion.</p> <p>Brevet General E. G. Beckwith, of the United States army, and, at the time of the taking of the property in controversy, president of the United States sequestration commission, an appendage to the military power of Louisiana, makes a report which is'embodied in the return of the War Department in this case, which report very fully establishes the taking, carrying off, selling, and appropriating the proceeds of the property of the claimant.</p> <p>It seems to be a matter of difficulty, according to the report of the president of the United States sequestration commission, to determine whether they got the exact quantity of sugar and molasses claimed in the petition from the plantations of claimant, and the effort is made to mix them up with other sugars, &c., received from their agent. The closest scrutiny will fail to-show any transaction of this sequestration commission as an open, plain one; its province seemed to be to confuse things generally. The commission, through its authorized secretary, gives an account of all sugar and molasses that the commission received from its agent, the account is duly certified to by said secretary, and is included in the report of War Department.</p> <p>General Order No. 8 directs that all such proceeds, after the date thereof, January 12,1803, shall be added to the fund in the hands of the quartermaster. We find the report of Secretary of the Treasury, as filed in the case of B. H. Montgomery, No. 2921, in this court, in which it is shown that there has been covered into the Treasury of the United States $802,392 48 to the credit of the captured and abandoned property fund, from Colonel Holabird, who was the quartermaster-in-chief for the Department of the Gulf in 1802,1803, and 1804. And in another return from the Treasury Dejiartment, called for in this cause,. the said Holabird is represented as having received from the sequestration commission $243,909 73 from sales of pro- - dace, kind or quality not mentioned, and the further sum of $52,310 81, which he states to be derived from the sales of sugar and molasses. . This point has, however, been settled by the judgment rendered in the case of John A, Sudnall v. United States, (Yol. 3, C. Cls. B., p. 291.) The money had not then been covered into the Treasury.</p> <p>The claimant’s husband, now deceased, owned two sugar plantations in Louisiana at the opening of the rebellion. There was a considerable amount of the crop of 1801 on the plantation at the time it was taken possession of by one William Faux, under the sequestration order of General Butler, dated November 9,1862, and that property was restored to Minor during his life-time, on the representation to the special claims commission sitting at New Orleans. The plantations were leased to William Faux, under a contract that he was to turn over to the United States one-half of the gross proceeds. Under that contract he raised the sugar and molasses in dispute.</p> <p>The loyalty 'of the claimant is sufficiently proved.</p> <p>I. The seizure of the property is only proved under the operation of the order of General Butler, dated November 9,1802, for the sequestration of certain property lying in “ the district west of the Mississippi Kiverand the contract of William Faux, dated November 28, 1802, made by the seqiiestration committee with him, to work certain plantations on certain conditions. It appears from the report of B. G. Beckwith that this condition was that Faux should turn over to the United States one-half the products of the plantations.</p> <p>The claimant argues that this is a capture of property by military forces'within the enemy’s country. This is the ground upon which she bases her right to recover, and she claims that jurisdiction is granted the court under the Act March 12,1863. The case cannot come under the Act March 12,1863, giving-jurisdiction to the Court of Claims, in cases where the Secretary of the Treasury is authorized to collect “captured and abandoned propertjq” when loyal claimants seek to recover the same, for tbis act was passed after the alleged seizure of tlie property in question. That seizure was made solely by military power and authority, and the Act March 12, 1863, cannot be retroactive so as to cover captures made before the passage of the act, unless the words of the statute expressly declare such an intention.</p> <p>This point appears to be in contravention of the opinion of this court in the 'case of Barringer v. The United States, (3 0. Cls. El, p. 358,) but in this opinion no reference is made to the Act July 4, 1864, (13 Stat. L., 381,) which expressly takes away jurisdiction from the Court of Claims in cases where claims arise out of the appropriation of captured property by the army or navy. Such is precisely this case. The property was taken by the army.- This case is therefore out of the jurisdiction of this court. The claimant must apply to Congress, or perhaps to the commission recently appointed under act of Congress.</p> <p>II. The plantations on which the sugar and molasses claimed in this case were raised were situated, in the enemy’s country. That portion of territory was occupied by the military forces of the United States. It was purely a military occupation. The military commander of that district, having sovereign control over those two plantations, leased them to Faux for a certain amount of rent, viz: one-lialf the gross proceeds. Thus was established the relation of landlord and tenant. The United States owned and had possession of certain territory which had been captured by force of arms. The United States disposed of two plantations within the area of that territory by leasing them at an annual rent. Minor, the ci-devant owner of the plantations, had nothing to do Avith the raising of the crop of 1862; he paid none of the plantation expenses; not a dollar of his money ever went into that crop.</p>

In tbe brief on tbe part of tbe claimants tbe attention of tbe court is directed to tbe consideration of tbe following propositions, to wit: 1. That these claimants Avere tbe owners- of tbe cotton tbe proceeds of wbicb they seek to recover. 2. That tbe procéeds of said cotton paid into tbe Treasury of tbe United States is $43,180 33. 3. That neither of these claimants gave any aid or comfort to tbe late rebellion. 4.

The claimant seeks to recover the net proceeds of one hundred and eighteen bales of cotton, seized and sold in behalf of the United States. The claimant had shipped from Macon to Savannah in the month of July, 1864, one hundred and twenty-eight bales of cotton, consigned to Erwin & Hardee, commission merchants, with directions to store it for him. Afterward he gave directions to Erwin & Hardee to sell enough to pay the charges of storage; and ten bales were sold by them.

The Act July 13,1801, generally known as the non-intercourse act, Avhich forbade commercial intercourse between the citizens .of the loyal and those of the insurrectionary States, contained tills exception: “ Provided, hoicever, That the President may, in Ms discretion, license and permit commercial intercourse with such part of said State or section, the inhabitants of which are so declared in insurrection, in such articles, and for such time, and by such persons as he, in…

<p>Oji the Proofs.</p> <p>In February, 18C5, after the capture of Savannah, the owner of cotton reports to the Quartermaster and it is seized. In. March following he sells it to mer chants of Few York, who hold no permit to trade in the insurrectionary districts. Se brings this action for the use of the merchants to recover the not proceeds in the Treasury.</p> <p>In March, 1865, commercial intercourse between a citizen o! a loyal State and a person residing- in Savannah is unlawful, although Savannah is permanently occupied "by United States forces; the acts and proclamations affecting commercial intercourse during the rebellion examined and constnud.</p>

This is a cotton case? in which the plaintiff claims the proceeds, of one hundred and thirty bales, seized at Wilmington, North Carolina. 1. As to ownership, seizure, and shipment. From July until November, 1804, 'the plaintiff purchased cotton, in various quantities, from different parties, which was stored on the west bank of the Cape Fear River, opposite the city of Wilmington.