
    John V. Sevier v. The United States.
    
      On the Proofs.
    
    
      A mass of cotton is captures, belonging to three several owners, but a portion of it is lost betiveen capture and sale. The first owner brings his suit and proves the number of bales captured and the price per bale at which, it sold. The Government does not shoto the loss occurring after capture, nor malee the other owners parties to the suit. Hence the first owner recovers without contributing to the loss. The second owner now brings his suit, and the Government insists on the trial that he can only recover his proportion of the fund remaining in the Treasury, and not the proportion to which he ivotild have been entitled if the first owner had recovered only his just share. On the trial questions of practice ■arise.
    
    
      I. Where a party obtains leave to re-examine his witnesses on a specified point, he cannot re-examine them on a second point as to which they have been previously interrogated, .even though the case has been remanded for further evidence on the second point. He must call new witnesses as to it.
    II. Where in a suit under the Abandoned or captured prop&'ty Act the Government suffers a claimant to recover more than his just proportion of the fund, failing to show that he should contribute to a loss of part of the captured property, and failing to make adverse claimants parties to the suit, it cannot afterward limit the adverse claimants to the balance of the fund. They should recover the proportion to which they are justly entitled, and cannot be barred by the judgment in a case to which they were not parties. The loss must fall on the Government.
    
      Mr. T. H. N. McPherson and Mr. O. 8. Lovell for the claimant:
    This is an action brought to recover the proceeds of the salo of thirty-seven bales of cotton, the property of the claimant, which were taken and carried away from his plantation, situated in the parish of Tensas, State of Louisiana, by the United States Mississippi marine brigade, then under the command of Brigadier General Ellett, on or about February 1,1864, and which cotton was afterward delivered to the agents of the Treasury of the United States at Yicksburgh, Mississippi, and by them forwarded to the supervising special agent of the Treasury Department at Cincinnati, Ohio, by whom it was sold, and proceeds paid into the Treasury of the United States.
    The ownership and possession of the cotton in question is very amply proven by the witnesses called by the claimant. There has been no alienation of any part of the claimant’s interest to the proceeds of this cotton or the property itself; his title to the same is as perfect as on the day of its seizure.
    The loyalty of the claimant to the United States Government, and the fact that he never gave aid or comfort to those engaged in the late rebellion, but consistently adhered to the United States, seems well established.
    The taking, carrying off, and final disposition of the claimant’s property is more fully proven than in the most of the cases presented to this court. Nearly every witness called fixes the taking from the claimant of the thirty-seven bales of cotton by a detachment of the United States Mississippi marine brigade.
    The closing testimony on this' subject proves the taking of tbe specific number of bales of cotton claimed in this cause from Sevier’s plantation, and that they were delivered to McDowell or Montross, either of whom, or both, were acting as agents of the Treasury Department at Yicksburgh at that time. This lot of cotton was delivered by the steamer Baltic, with much other cottons at the same time.
    The reply made by the honorable Secretary of the Treasury to the rule taken in this cause and that of M. L. Bush, Administratrix, v. United States, No. 3540, for information in regard to the cottons seized by the United States Mississippi marine brigade, and forwarded by the steamboat John H. Dickey, shows that one hundred and twenty-seven bales of cotton were brought from the “ D. Bush plantation ” on a barge by Brigadier-General Ellett, who was then in command of the Mississippi marine brigade.
    There seems to be but one way of arriving at the value of the thirty-seven bales of cotton proved to have been taken from the claimant’s place, and that is by the average value of the whole one hundred and twenty-seven bales that are reported by the agent of the Treasury Department as coming from the u Bush plantation.”
    By reference to the printed evidence on file in the case of Matilda B. Bush, Bxecutrix, v. United States, Nó. 3540, now pending-before this court, it will be seen that the cotton of the claimant in this case and that of David Bush were taken by the same parties, and at the same time; the lot belonging to claimant having been placed on the United States steamer Baltic on Saturday, that of Bush’s on Sunday. The Bush estate claims but eighty bales of cotton, and therefore the credit by the Treasury agent at Yicksburgh of the one hundred and twenty-seven bales received from that plantation was an error, thirty-seven bales of the same having been taken from the Sevier place. The Government employés, military or civil, have mixed up and commingled the lots together; the value can only be arrived at by average. The one hundred and twenty-seven bales of cotton, as shown by the return of the Secretary of the Treasury, brought the sum of $22,321.06, after deducting all expenses and charges. The average value of the thirty-seven bales claimed by petitioner in this case would therefore amount to the sum of $6,502.98; for which amount the claimant asks •of this court that he may have judgment.
    
      
      Mr. Alexander Johnston (with whom was the Assistant Attorney -' General) for the defendants.
   Drake, Ch. J.,

delivered the opinion of the court:

When this case was tried on a former occasion, the court, being equally divided upon the sufficiency of the claimant’s proof of loyalty, for that reason, and also for another connected with the return of the Treasury Department made in the case, ordered the case back to the general docket.

Afterward the claimant moved the court for leave to retake the testimony of such witnesses as can prove that claimant’s cotton was taken at the same time said Bush’s cotton was taken, and was placed upon same conveyance, and mixed up with the same 5 also, that no informant accompanied the military expedition that seized either lot of cotton, or was present at the seizure ; the witnesses not having heretofore been examined on these points.”

This motion was allowed, and, under the leave granted, the depositions of several of the claimant’s witnesses were retaken ; and a part of their testimony related to other matters than those specified in that motion, as well as to those matters.

At the present trial the defendants’ counsel objected to the admissibility of any of this new testimony, except such as relates to the points specified in the motion, and upon which the claimant had leave to re-examine the witnesses: The question was reserved for consideration.

In regard to it we reiterate the views expressed in Mrs. Maharts Case, (G C. Cls. B.., 331,) and apply them here. When the court gives leave to re-examine witnesses upon points on which they have not before been examined, their re-examination must be confined to those points.

The testimony given by the witnesses in this ease, on their re-examination, outside of the points specified in the motion, was mainly in regard to claimant’s loyalty, concerning which nearly all the witnesses had previously testified.

The claimant contends that, under the order remanding the case for further proof as to loyalty, he had a right to re-examine witnesses on that point, even though no leave- was asked or granted to do so. We do not so hold. When he asked and obtained leave to re-examine them as to specified matters, the-fact that the case had been remanded for further proof as to-another matter, did not authorize him to re-examine them as to that; but he was bound, in their re-examination, to keep himself within the limits of the leave given. As to other witnesses, he might examine them, as to loyalty, to such extent as he desired.

The defendants’ objection to the evidence taken on the reexamination as to other prnints than those specified in the motion, is well taken, and all such evidence was excluded, and did not enter into our consideration of the case.

Another point made by the defendants’ counsel at the trial requires a statement of our views.

At the December term, 1867, of this court, a judgment was recovered by George W. Turner against the United States, for the proceeds of eighty bales of cotton, (3 C; Cls. B., 400;) which eighty bales the defendants’ counsel were understood to claim were part of a larger lot of cotton, made up of that taken from this claimant, from D. Bush, and from said Turner; and our attention was called to that judgment, to show that if judgments were now rendered in favor of this claimant and of D. Bush’s executrix, for the whole amount claimed by each, those judgments would more than absorb the proceeds of the lot made up from the plantations of this claimant, Bush, and Turner. Properly, this should have been pleaded as a defense; but we have waived that point, and examined the matter.

As will be perceived by the finding of facts now filed, we hold that the cotton of this claimant, of Bush, and of Turner, made up the lot of cotton known on the books of the Treasury Department as “ Lot [V] No. 39;” of which this claimant contributed 37 bales, D. Bush 80 bales, Turner 70 bales, and there were 10 other bales, the ownership of which does not appear, making a total of 197 bales. This quantity was rebaled at Yieksburgh, and the number of bales reduced to 134; and those 134 bales were sold at Cincinnati, and accounted for to the Treasury as “ Lot [Y] No. 39.”

Turner sued for 80 bales, and recovered judgment for $22,074.03,'which was at the rate of $275.92 and a fraction per bale.

The entire net proceeds of the whole of “ Lot [V] No. 39 ” being but $27,587.78, there remain only $5,513.75, to satisfy the remaining claims of Sevier and D. Bush for 117 bales; when, at the rate at which Turner recovered, there ought to be $32,282.64. TMs shows that there must have been a great mistake somewhere in Turners Case; and in looking into it we have no difficulty in discerning it.

His judgment was based upon a letter from the Treasury Department, simply stating the sales of 80 of the 134 bales, which made up “Lot'[Y] No. 39;” giving nothing of the history of the “ lot,” and omitting altogether any reference to the rebaling, or to the sales of the remainder, or to there being any other claimants of parts of the “lot.” Upon this'information from the Government, the court was not only justified in giving Turner the judgment it did, but could not well have avoided it.

Now, however, when the whole history of “ Lot [Y] No. 39” comes out, it very plainly appears that Turner recovered nearly twice as much as ought to have been allowed him. Instead of receiving about $275.92 per bale, he should have received his proportionate share of the entire net proceeds of the “ lot,” which should have been ascertained (as we have in this case) by dividing the entire net proceeds by the whole number of bales, 197, which went into the 134 condensed bales. This would have given him $140.04 per bale, or $12,203.20 in all, instead of $275.92 per bale, or $22,074.03 in all. This error was the result of the partial information communicated by the Government itself to the court.

Of course, there must be a loss somewhere; and there can be no question where it ought to fall. Sevier and Bush cannot be made the sufferers by action of the court to which they were not parties, nor by the deficient information from the Treasury Department, upon which that action was based. Upon proving their cases, according to law, they are entitled to the net proceeds of their cotton; and the fact that the Government has, without their privity, paid out a part of those proceeds to another, who was not entitled thereto, does not deprive them of that right; they are still entitled to recover all that they would otherwise be.

The judgment of the court, therefore, is, that the claimant recover the proceeds of 37 bales of cotton, at $140.04 per bale, being in the aggregate $5,181.48.  