
    SUNDRY COTTON CASES.
    (10 Court of Claims R., 502; 92 U. S. R., 651.)
    John B. Raymond, assignee of Maybin, appellee, v. The United States, appellants. Thomas Kidd, appellee, v. The same, appellants. J. J. Cowan, administrator, etc., appellee, v. The same, appellants. J. B. Brabston, appellee, v. The same, appellants. Charlotte Spear, appellee, v. The same, appellants. E. K. McLean, appellee, v. The same, appellants. J. Reese Cook, appellee, v. The same, appellants. Ellen D. Batchelor, appellee, v. The same, appellants. George Hawkins, appellee, v. The same, appellants. J. J. Cowan, administrator, etc., appellee, v. The same, appellants. Robert G. Johnson, appellee, v. The same, appellants. Wm. F. Smith, appellee, v. The same, appellants. Hannah Bodenheim, appellee, v. The same, appellants.
    
      On the■ defendants’ Appeal.
    
    
      The court below refers a large number of eases under the Abandoned or captured, property Act to a commissioner, it appearing that the cotton was intermingled after capture, the identity lost, and a likelihood existing that the fund will prove insufficient to pay all in full. The commissioner, under instructions, marshals the assets into distinct funds, and charges them with losses. On the coming in of his report the parties are heard on exceptions filed. Additional-facts where requested are also found by the court. The findings show only the capture of the cotton ; that it went to a landing on the Mississippi in the vicinity of Ficlcsburgh, and toas placed on transports; that these means would naturally carry it into the mass of intermingled cotton at Vicksburgh, theproceds whereof are in the Treaswry. The court below finds the ultimate fact that the prroceeds of the claimants’ cotton are in the Treasury, but the findings state expressly that this is found loithout direct evidence, and upon the circumstances before stated. Judgment for the claimants, The defendants appeal.
    
    I. A finding of fact, in the nature of a special verdict, that the cotton of a claimant contributed to and forriied part of a mass intermingled and sold by the agents of the Treasury, will he sustained, though not based upon evidence specifically tracing tlie property, but upon the assumption that amid the circumstances attending its capture all cotton which was started from the place of capture in a manner that would naturally carry it into the mass must be presumed to have gone there unless shown to have been lost or shipped to some other point.
    
    II. Each contributor to a common fund becomes interested in the fund in proportion to his contribution. Hence each owner of captured property intermingled with other property of the same kind and value, stored in a common mass, becomes the owner of an interest in the mass proportionate to his contribution.
    III. Where the property of different owners was intermingled in a common mass after capture, and there appeared to the court below a likelihood of there being a deficiency in the fund, it was proper for the court to briDg all the claimants together and conduct the suits in such a manner as to compel them to litigate with each other, to the end that they might share proportionately in the losses attending the fund.
    IV. The fact that cotton was used after caxrture for military purposes, does not exclude the Court of Claims from jurisdiction as to such of it as was subsequently turned over to the Treasury agents and sold under the provisions of the Abandoned or captured property Act.
    
    V. The Court of Claims may use such machinery as courts of more general jurisdiction employ amid similar circumstances to aid investigation; such as to refer cases to a commissioner to state accounts, marshal assets, and adjust losses; provided that the judgment finally rendered is the result of the deliberation of the court, and not that of the commissioner alone.
    VI. The practice of the Court of Claims, in referring cases to a commissioner and hearing them upon a motion to confirm his report and exceptions filed thereto, sustained.
    
      The Reporters’ statement of the cases:
    These cases came to a hearing in the court below, on the commissioner’s report and the motion to confirm it, on the one side, and the exceptions filed to it on the other. Where proper exceptions were taken by either side, the court took up the evidence and determined the facts irrespective of the commissioner’s report. Where no such exceptions were taken, the court treated the facts set forth in the report as acquiesced in by the parties. After due deliberation, the court confirmed the report in part, amended it in part, and overruled it in part. As amended and confirmed, it was adopted as the findings of the court, conclusions of law being appended. The following was
    
      The order of confirmation.
    
    “ On the motions to confirm the reports of Special Commissioner Eveleth, bearing date, respectively, the 2d day of March, 1875, and the 6th day of April, 1875, and the 21st day of April, 1875, after hearing counsel for the respective claimants and for the defendants, and after due consideration of the evidence offered in all of such cases—
    “ It is ordered and directed that the said reports be, and are hereby, amended in the following particulars:
    “1. The first fund, consisting of Vicksburgh and Natchez cotton, intermingled so that the identity thereof has been destroyed, as described in the report, will stand at the sum of $948,313.30. The number of bales contributed to this fund by capture, and which it represents, will stand at 5,341 bales, and the price per bale which parties should recover will stand at $177.55 per bale.
    “The cases of James J. Persons, assignee, v. United States; Daniel J. Dolían v. Same ; Eliza A. Cochran v. Same; William E. Hall v. Same ; Mary E. Bledsoe, guardian, v. Same ; Martha Crane v. Same, are striken out of the report and remanded to the general docket, with leave to both parties, claimant and defendant, to take further evidence, but upon condition that if any of the cases hereafter be brought to trial, and the claimant recovers out of the funds set forth in the report, the claimant, before judgment, shall pay to the commissioner his fees and expenses at the rate hereinafter prescribed for claimants whose cases are now prosecuted to judgment.
    “ The cases of A. Perryman v. The United States, Anson Wol-cott v. Same, Susan Bolls v. Same, Mrs. V. O. West v. Same-; Sylvia A. Perry v. Same, T. G. A. Dexter v. Same, are remanded to the commissioner, but on condition that if it hereafter appear that they are entitled to relief out of the two funds now disposed of, the petitions shall be dismissed and they are stricken out of this report.
    “In the cases of James A. Eox v. The United States, Jesse B. Eerguson v. Same, E. S. Pace v. Same, John Harod v. Same, 
      
      Mrs. A. Smith v. Same, J. F. Fore v.‘ Same, Joseph 0. Jones v. Same, Cornelius T. Cimhingham v. Same, Solomon Galinger y. Same, the report of the commissioner is confirmed, and judgment will be entered dismissing the petitions of the respective claimants.
    “In the case of Mrs. Nanette Switzer, (late Abell,) v. The United, States, the report of the commissioner is confirmed as to 73 bales of the cotton claimed, and the remaining 27 are found on the evidence to have been the property of the confederate government at the time of capture, and are now adjudged to be the property of the United States.
    “In the case of James A. Hutchinson v. The United Stales, the report of the commissioner is confirmed as to 42 bales of the cotton claimed, and the remaining 23 bales are found on the evidence to have been the property of the confederate government at the time of capture, and are adjudged to be the property of the United States.
    “In the case of Joel II. Willis’s Administrator v. The United States, the report of the commissioner is not confirmed, and the claimant is found on the evidence not to have proved the capture of the cotton sought to be recovered, and judgment will be entered dismissing the petition.
    “ In the case of Seth U. Kellogg v. The United States, the report is not confirmed as to the title of the claimant to the cotton sought to be recovered, and the evidence relied upon by the commissioner is excluded as incompetent. The case will be remanded to the general docket, with leave to the parties to give further evidence as to the title of the claimant and his vendors, John Buckingham & Co., to the cotton in suit, upon condition that if the case be hereafter brought to trial, the claimant shall before judgment pay to the commissioner his fees and* expenses at the rate hereinafter provided.
    “And it is further ordered that iu the following cases the report of the commissioner be confirmed and judgment be entered in favor of the respective claimants for the quantity of cotton reported by the commissioner at the rates fixed by the foregoing amendments to his report:
    “FIEST FUND, AT $177.55 FEE BALE.
    “ Robert G. Johnson v. The United States, 149 bales.
    
      uFUen J). Balcheldor v. Same, 51 bales.
    
      
      “ John H. IS exornan v. Same, 50 bales.
    
      “JE. K. McLean v. Same, 21 bales.
    
      “Thomas Y. Berry, Administrator, v. Same, 149 bales.
    
      “Juliet Glass v. Same, 18 bales.
    “ J. Reese Coolc v. Same, 40 bales.
    
      “Thomas A. Marshall v. Same, 22 bales.
    
      “Richard, Taylor v. Same, 6 bales.
    
      “Thomas Kidd, guardian, v. Saxne, 04 bales.
    
      “Jaxnes Stexvax't v. Saxne, 70 bales.
    
      “Charlotte Spear y. Same, 70 bales.
    
      “Mary P. Marge’s Administrator v. Saxne, 45 bales.
    
      “Thomas Kidd y. Same, 480 bales.
    
      “Hiram Harrisoxi y. Same, 200 bales.
    
      “Buff Green v. Same, 19 bales.
    “ J. B. Brdbston v. Saxne, 32 bales.
    
      “Sarah Cowan v. Saxne, 48 bales.
    “N. B. Willis y. ¿toe, 40 bales.
    
      “JExnxna J. Jones v. Saxne, 100 bales.
    
      “Haxixiali Bodenheixn v. Saxne, 90 bales.
    
      “Alfred W. Brien v. Same, 40 bales.
    
      “John L. Hébron's Assignee y. Same, 30 bales.
    
      “J. W, Maybin’s Assigxiee v. Saxxie, 400 bales.
    
      “Arxnstead Burwell y. Same, 118 bales.
    
      “John Willis v. Same, 125 bales.
    
      “Wxn. B. Hall v. Same, 300 bales.
    
      “Jaxnes Meagher y. Same, 69 bales j and for 45 bales specifically traced, $14,759.90.
    
      “Mary W. Thoxnas y. Same, 112 bales.
    
      “Thomas H. Jett y. Saxxie, 25 bales.
    
      “George Haiolcins v. Same, 15 bales.
    
      “James J. Goioan, administrator, y. Same, 120 bales. “Benjaxnixi Harivood v. Saxne, 75 bales.
    
      “Ann Maria Ragsdale y. Same, 100 bales.
    
      “Alexander Hutchinsoxi y. Saxne, 130 bales.
    
      “John R. McAlpixie y. Saxne, 100 bales.
    
      “Isaac R. Wade y. Saxne, 21 bales.
    
      “Clarissa Young v. Saxne, 116 bales.;
    
      “Axm Miza Routh y. Same, 75 bales.
    
      “ THIRD EUND, AT $111.97.
    
      “H. H. Mount, administrator, v. The United States, 5 bales.'
    
      “Frederick A. Metcalf, administrator, v. Same, 55 bales.
    
      
      “Robert M. Douglas et al. v. Same, 1,457 bales.
    “ Wm. F. Smith v. Same, 15 bales.
    “And it is further ordered that the engrossed and consolidated copy of the reports of the commissioner .as amended by this order, filed herewith, stand as the findings of fact of the court.
    “And it is further ordered that there be allowed and paid to the commissioner by the several parties for whom judgment is now directed, for his fees, and expenses, including those of Enoch Totten, esq., his legal assistant, the sum of $0,000, to be apportioned pro rata among the said several claimants according to the amounts of their respective judgments as hereby directed. That $2,000 of said allowance be paid by the commissioner to his said assistant, Enoch Totten, esq., and that the entry of judgment in each case will be suspended until the claimant produces the commissioner’s receipt for the party’s ratable share of the allowance to the commissioner.”
    The following is the material part of the
    
      Amended consolidated, report of the commissioner,
    
    “ In pursuance of the order of this court, dated on the 4th •day of June, 1873, appointing me a special commissioner for certain purposes therein set forth, I submit the above-entitled causes and the following report, embracing transactions in regard to cotton captured in the State of Mississippi during the years 1803, 18G4, and 1805, the records not exhibiting any captured in the year 1862.-
    “During the years 1863, 1864, and 1865, fourteen thousand three hundred and thirty-five (14,335) bales of cotton were captured and taken from the owners in the State of Mississippi. 'The parcels of different owners were, except as hereinafter specifically stated, so that the identity of each parcel was destroyed ■and the property of each owner could not be traced. While in transitu large quantities were stolen, destroyed, taken for military purposes, and otherwise lost from the mass. The remainder, ■amounting to twelve thousand seven hundred and twenty-two, ,(12,722,) has been accounted for in the accounts rendered by William P. Mellen, supervising special agent of the Treasury Department, and by Captains A. R. Eddy and G. L. Fort, officers of the Quartermaster’s Department, viz:
    Bales.
    “ Mr. Mellen’s accounts... -.. 9, 604
    “ Captain Eddy’s accounts..... 947
    “Captain Fort’s accounts .. 2,111
    “In all.l.. 12,722
    “ Of which there were released in kind to various persons... 2,100
    “ There were burned, lost, or otherwise disposed of, as is shown in a tabulated state- ' meht marked “ Exhibit No. l,”and appended
    hereto...... 239
    —--_ 2,359 *
    “ And the number of bales sold is :
    “ By Mr. Mellen.... 7,439
    “ By Captain Eddy... 813
    “ By Captain Fort..... 2, 111
    _ —-- 10,303
    _ “ Out of the above proceeds there were nominally released, as hereinafter stated, by the officers of the United States to various persons claiming- to have been the owners of
    some of the cotton sold..... 1,497
    “'The number of which the net proceeds were paid for collecting portions of the cotton
    sold is.. 139f-
    “The number included in judgments entered
    in the United States Court of Claims is ... 2, 702
    —--- 4,338g
    “And the number the net proceeds of which, including custom-house fees and internal-revenue tax, remain available to meet judgments of the Court of
    Claims is .. ... 0, 024£
    “ The proceeds derived from the 10,383 bales sold are—
    “ By Mr. Mellen, 7,439 bales.....$2,295,933 60
    “ By Captain Eddy, 813 bales. 247,143 08
    “ By Captain Fort, 2,111 bales.... 429,663 39
    2,972,740 13
    
      “ The expenses chai’ged against the same are—
    
      “ By Mr. Mellen:
    “Freight, &g .....$207,346 44
    “ Custom-house fees_ 117,862 93
    “ Internal-revenue tax.. 26,746 24
    
      -‡351,955 61
    “ By Captain Eddy:
    “ Auctioneers fees, &e. 2,842 41
    “By the Treasury Department, as • properly chargeable against proceeds. of the sale—
    “ By Captain Fort:
    “Freight.$16,888 00
    “ Internal-revenue tax..... 2,315 46
    -$19,203 46
    “Ofwhich the amount remitted on payment of judgments in the Court of Claims is:
    “In favor of Samuel Wor-thington's ad-ministratrix. $8,33129
    “In favor of Wm. W. Wor- • thington.... 2,272 17
    - 10,603 46
    “Leaving as chargeable against the proceeds of the sale of 1,075 of the
    2,111 bales sold.. 8,600 00
    -$363,398 02
    “ The net proceeds in which charges for custom- ' house fees and internal-revenue tax are included are......... 2,609,342 11
    “ And the like proceeds in which these charges are excluded are......... $2,753,951 28
    
      “ From out of such net proceeds officers of the United States have paid and there is otherwise involved —
    “ 1. To various persons claiming to be owners of cotton so sold, the proceeds of 1,497 bales, amounting to.$408,200 80
    “2. To various persons for collecting portions of the cotton sold. 30,825 72
    “3. Involved in appeal pending in the United States Supreme Court 1 in the Elgee case... 16,309 08
    “ 4. The net proceeds due to 2,702 bales, and involved in judgments entered in the United States Court of Claims, amounts to. 888,487 35
    5. The net proceeds due to 45 bales specifically traced are. 14,759 90
    $1,358,582 85
    ‘‘And the balance in the Treasury available to •payment of judgments in the Court of Claims is. 1,395,368 43
    “ By reference to said tabulated statement, marked ‘ Exhibit No. 1,’ the above facts will be seen fully set out.
    
      “ As to the 1,497 bales nominally released to the owners, the following facts are found : At various times after the sales of cotton and while the proceeds were on deposit with the assist: ant treasurer of the United States at Cincinnati, and were subject to the draft or order of the supervising special agent of the Treasury, persons would appear claiming to have been the owners of some of the cotton which had been sold, and produce affidavits to prove their title. On being satisfied of their loyalty, the Secretary of the Treasury would direct the supervising special agents to release to the applicant the proceeds of a specified number of bales, deducting therefrom the custom-house fees and internal-revenue tax. The special agent would thereupon pay to the applicant out of the moneys subject to his draft, as before stated, the amount which he supposed represented the avails of the applicant’s cotton, deducting, however, the customhouse fees and internal-revenue tax. But in making these estimates the special agent did not take into account the losses to which the mass of cotton had been subjected before it came into-his hands. Consequently, while he nominally released the proceeds of a given number of bales, less the custom-house fees, and internal-revenue tax, he really released the proceeds of a much larger number. Therefore, after the custom-house fees and internal-revenue tax had been deducted, there was released, as representing 1,497 bales, the sum of $407,6S8.07, as above-shown, giving an average of $272.33 per bale.
    “To arrange the cotton referred to, and the corresponding proceeds into funds, is a task of no little delicacy. There is so much uncertainty connected with the facts, and the various lots are so confused and intermingled,, that it is only possible to approximate, and we are compelled to grope in the dark and separate the cotton into funds with such imperfect lights as we have before us. I have divided the cotton captured in Mississippi into eight' separate funds, and iu so doing have taken the cotton- remaining on hand only.
    “The cotton paid out for collecting, burned or lost, and released in kind or in net proceeds, has been excluded from the various funds 5 but the cotton disposed of by the. court has been included iu the fund, except the cotton in controversy in the case of Woodruff, Bouchard &Elgee, and the funds arising therefrom. This case being undecided on appeal, the property has been excluded from the fuuds. - ■
    “ In cases where the net proceeds of cotton were released by the Treasury agents to persons claiming to own them, the amounts assessed for custom-house fees and internal-revenue-taxes were always retained by the Government. In this report such sums, so retained, have been considered and counted as a part of the fund.
    “The most o-f the cotton included iu this report was captured in the vicinity of Vicksburgh, Miss., and was transported to that city. From there it was shipped generally to Memphis, Tenn., and thence to Saint Louis and Cincinnati, for sale.
    “The collection of cotton in that locality began in June, 1863, about the time the Army surrounded the city of Vicks-burgh, and continued, until about July, 1865. A very large quantity of captured cotton was used by the Army of the United States for defensive purposes in the vicinity of Vicks-burgh. After the surrender of Vicksburgh, this cotton, or as much of it as could be saved, was collected and transported to Vicksburgh. The work of gathering cotton from the defenses around Vicksburgh continued until about the 1st of November, 1863, and after that date small quantities were received, and even as late as March, 1864, a few bales were dug out and brought in from those defenses.
    “The testimony shows that, during the strife in the counties surrounding Vicksburgh, the people were in the habit of coii-cealing their cotton in swamps and forests to protect it from the torches of the confederates, and also from the hands of the Union Army. During the latter part of the year 1863, and during tiie year 1864, milch of this concealed cotton was discovered by the military forces of the United States, and by the Treasury officials, and was seized and conveyed by them to Vicksburgh and to Natchez.
    “Neither the records of the Department, nor the depositions of witnesses filed in the various cases, enable me to determine how long the various lots of cotton remained in Vicksburgh before shipment to the North for sale. But I find that large masses of cotton were stored in warehouses and piled up on wharves in Vicksburgh for indefinite periods of time, and I am led to the belief that large quantities of cotton were retained in Vicksburgh many mouths before shipment to Memphis, Saint Louis, and Cincinnati.
    “ I find that a large quantity of cotton was, immediately after seizure, sent to Natchez, but the greater part,' if not all, of such cotton was reshipped, sooner or later, to Vicksburgh; at this point it was intermingled with the mass of cotton accumulated in that city, except as to lot 121, hereinafter mentioned.
    “ I have, therefore, arranged the cotton shipped from Vicks-burgh and Natchez during the years 1863 and 1864 into one fund, and have called it the first fund, to answer to claims for-cotton seized and sent to those two points during those'two years. Two expeditions were sent up the Yazoo River, one in. 1863, under General Herron’s command, and the other in 1864, under the command of Colonel Coates. Both of these expeditions captured cotton, which was shipped down the Yazoo. River to Vicksburgh, and I have, therefore, included it in the fund under consideration. '
    “A small lot of cotton, consisting of fifteen bales, was brought to Memphis by a steamboat in August, 18G3; of these, twelve bales were saved from burning at Perkins’s Landing, and three picked up in the Yazoo River. This cotton undoubtedly was the property of the people residing in the vicinity of Yicksburgh, who contributed to cotton which forms the first fund, and I have therefore assigned the lot to said fund.
    “Some of the cotton captured in the vicinity of the railroad-bridge over the Big Black River, in June, 1863, was conveyed on wagon-trains to Haines’s Bluff ; such cotton, I think, eventually went into Yicksburgh, and I have therefore included it in the first fund.
    “In every case where the evidence shows the seizure of cotton and the shipment thereof to Yicksburgh or Natchez, during the years 1863 and 1864,1 have recommended the payment of the allowance out of this fund. All of the cotton allowed to claimants out of this fund, except in two cases, was captured on and before the 1st day of March, 1864. In the two cases so excepted, the cotton was captured in July and September, 1864. In view of the great uncertainty as to the time of shipment from Yicksburgh, and the impossibility of tracing the cotton of the various claimants into specified lots, I deem this to be the only just method of distributing the fund.
    “I have prepared and filed herewith a paper, marked 'Exhibit No. 2,’ showing the lots of cotton put into the first fund, the date of shipment, the judgments of the court, and the number of bales remaining available, to which reference is made.
    “After'deducting the amounts recovered in judgments of the court heretofore rendered, and the amount released by the Treasury, there will remain a balance in the Treasury derived from cotton which has been segregated as belonging to the first fund, amounting to $948,313.30, and this is designated for the purposes of tliis report as the first fund. The number of bales segregated as above and represented by this fund is 5,341, giving as the price per bale which should be recovered by claimants, $177.55.
    “ From the first fund must be deducted the following judgments of the Court of Claims, and also the amount specifically traced in favor of James Meagher, that is to say—
    
      “ Judgments:
    “Michael Slattery. 1 bale .. $320 55
    “John A. Kline, administrator. 560 .bales.. 125,300 00
    “ Clarissa Ashford. 83 bales.. 23, 589 43
    “ Warren R. Dent.■ 75 bales.. 17,923 90
    “ Woodruff, Bouchard, and El-gee.... 572 bales.. 366,170 83
    “ J. W. Viet. 17 bales.. 1,356 10
    “ Thomas P. Rubey.. 8 bales.. 1,210 48
    ■ “ J. B. Christian’s administrator 20 bales.. 7,685 75
    “ Benj. Rouch’s executor. 69 bales.. 8,907 69
    1,405 • 552,464 73
    “ Specifically traced and allowed to James Meagher. 45 bales.. 14,759 90
    “ Loss to this fund from customhouse fees and internal-revenue tax, lot 136. 512 73
    1,450 567, 737 36
    “ Whole number of bales allotted to this fund. 5, C78£ 1,516,050 66
    “Deduct judgments as above, special allowance to Meagher, and loss to fund...1,450 567, 737 36
    “Available.... 3, 628J bales.. 948,313 30.”
    Then followed a special finding in each of the referred cases, that following being the one in Raymond, assignee of Mmjbin :
    
    “This action was brought to recover the proceeds of 402 bales of cotton.
    “ The evidence shows that, in the month of May or June, 1863, the military forces of the United States seized and carried away from the plaintiff’s plantation, in Warren County, Mississippi, 400 bales of cotton; that the same was the property of the claimant, and that it was conveyed in army-wagons to Haines’s Bluff, where it was loaded on vessels on the river.
    “ This cotton cannot be traced beyond this point, and probably became intermingled with the mass of cotton at Vicks-burgh.
    “ The claimant is entitled to judgment for 400 bales of cotton, at the average rate per bale, payable out of the first fund. “ 400 bales of cotton, at $177.55 per bale. $71,020 00
    “ Respectfully submitted to the honorable Court of Claims by—
    “ E. EYELETS,
    
      “ Commissioner.
    
    “ Washington, D. C., March 2,1875.”
    Then followed several schedules, showing the disposition made of the assets by the commissioner, i. e., tracing the cotton into the various funds, and charging them with the losses sustained.
    And upon the foregoing findings of fact, the court decided the following as its conclusions of law:
    “1. The counsel for the Government not having taken steps to consolidate suits where the parties were seeking to recover the proceeds of their property out of a common fund, the court would have been compelled to try the cases separately, and render judgment in each without charging each with a conjectural proportion of the general losses to which the fund might have been subjected. It appearing to the court that, at the rate claimants have been recovering, the funds would be exhausted before all of the judgments likely to be recovered were satisfied, and that the resulting consequence would be either that the later judgments would remain unsatisfied or that the Government would be required to satisfy them from other sources, the court was warranted, for the ultimate protection of the Government and of such later claimants, in suspending proceedings in all of the cases before it, and sending them to a commissioner, who, as an accountant, would marshal the assets of the property and charge it with the proper losses, so that equal and exact justice should be done to all. As to the title of the claimants and their rights to the proceeds, the court has determined them upon the evidence, irrespective of the commissioner’s report, wherever requested so to do by either the claimant or the defendants. The first exception of the defendants to the reference of these cases to a commissioner is therefore overruled.
    “ 2. As to the Natchez and Yicksburgh cotton, it appears from the evidence that the parcels of different owners were intermingled before shipment, and that some of the shipments from the two points were subsequently intermingled. It being impossible to trace the specific property of each owner, and likewise impossible to determine whether his cotton remained in a shipment from the original point of shipment, or went into the intermingled shipments from different points, the whole must be thrown into a common mass, and the average thereof be the measure of damages for all who contributed thereto.
    “3. With regard to suits brought subsequent to the 20th day of August, 1868, to recover cut of the funds now disposed of, the court has no jurisdiction to hear and determine them, and no reservation can be made from the fund to await the possibility of jurisdiction being hereafter conferred.”
    After those cases in which appeals had been taken reached the Supreme Court, several motions were made for additional findings, which resulted in the following
    
      Order for additional findings.
    
    u On consideration of the motion of counsel for the appellees, it is ordered and directed that the several records in the above-named cases be remanded to the Court of Claims, with directions to said court to certify in each of said cases, to wit:
    “1st. Whether the cottonowned bythese respective claimants, and seized from them by the United States, did or did not constitute a part of the cotton delivered to and received by the Treasury agent of the United States at Vicksburgh, Miss., during the years 1863 and 1864, and whether or not the same was there intermingled with other cotton belonging to other persons, so as to destroy the identity of the several lots belonging to the various persons from whom the same had been seized.
    “ 2d. Whether the proceeds of the sales of the various lots of cotton owned by and seized from the respective-appellees in these cases do or do not constitute a part of the fund found to be in the Treasury of the United States, accruing from the sales of the said intermingled mass of cotton so shipped from Vicks-burgb, Miss., during said years 1863 and 1864, and which was sold at Cincinnati and Saint Louis for and on behalf of the United States.
    “ And that the said Court of Claims make due return in the premises.
    “ 28th March, 1S7G.”
    
      In pursuance of such order the court below found, in Raymond’s Case, (and the findings in the others were substantially the same,) the following
    
      Supplemental findings of fact.
    
    “The Court of Claims, pursuant to the order of the Supreme Court, made March 23, 1876, requiring this court to make and certify as to certain facts in this case, does now make and certify to the Supreme Court the following supplemental facts:
    “First. And in response to the instructions of the Supreme Court to find ‘ whether the cotton owned by the claimant’s assignor, and seized from him by the United States, did or did not constitute a part of the cotton delivered to and received by the Treasury agent at Yicksburgh, Miss., during the years 1863 and 1864,’ the Court of Claims finds as follows:
    “ The cotton owned by the claimant’s assignor, and seized from him by the United States, was shipped on vessels at Haines’s Bluff, as detailed in the previous finding. It is not specifically traced by the evidence to the official custody of the Treasury agent at Yicksburgh nor to the official custody of any military officer; and, from the circumstances attending its seizure and shipment, it cannot be so traced by the claimant. But the Treasury agent at Yicksburgh, about the same time, received large quantities of cotton from unknown sources, belonging to unknown persons, add from various places of capture and shipment, and this cotton might, and amid the circumstances of the case naturally would, have gone into the mass at Yicks-burgh, and constitute a part of the cotton received by the Treasury agent at that place, and neither its loss nor its shipment to any other point is shown by the defendants. The Court of Claims, upon these facts and the presumptions therefrom arising, finds, though without there being direct proof of the ultimate fact, that the cotton owned by the claimant’s assignor constituted a part of the cotton received by the Treasury agent at Yicksburgh, and contributed to the fund set forth in the commissioner’s report, which forms part of the previous findings of the court.
    “ Second. And in response to the instructions of th8 Supreme Court to find ‘ whether or not the same was there intermingled with other cotton belonging to other persons, so as to destroy the identity of the several lots belonging to the various persons from whom the same had beeu seized,’ the Court of Claims finds as follows :
    “ The cotton so seized was intermingled with other cotton belonging to other persons immediately after capture and before shipment, so as to destroy the identity of the several lots, and the various shipments from different points were subsequently intermingled in whole or in part at Yicksburgh, so that it is impossible to determine whether the cotton of any owner remained in a shipment from the original point or went into intermingled shipments from different points; and it is likewise impossible to ascertain the specific rate at which he should recover except by throwing the whole into a common mass, as has been done in the report of the commissioner, forming part of the previous findings of this court.
    “ Third. And in response to the instructions of the Supreme Court to find £ whether the proceeds of the sales of the cotton .owned by and seized from the claimant in this case do or do not constitute a part of the fund found to be in the Treasury of the United States accruing from the sales of the said intermingled mass of cotton so shipped from Yicksburgh, Miss., during said years 1863 and 1864, and which was sold at Cincinnati and Saint Louis for and on behalf of the United States,’ the Court of Claims finds as follows:
    “ There is no direct evidence to show that the claimant’s cotton continued in or was separated from the mass of intermingled cotton at Yicksburgh, but the whole of said mass was shipped from there, and was sold at Saint Louis and Cincinnati, less certain losses of unidentified cotton, with which the fund has beei#duly charged; and on these facts, and the presumption therefrom arising, but without direct proof of the ultimate fact, the court finds that the proceeds of the sales of the claimant’s cotton do constitute a part of the fund found to be in the Treasury accruing from the sales of the intermingled mass of cotton so shipped from Yicksburgh and sold at Saint Louis and Cincinnati, more particularly set forth and described in the report of the commissioner, which forms a part of the previous findings of this court.”
    
      
      Mr. Solicitor-General Phillips (wit'll whom was Mr. Assistant Attorney-General Smith) for the appellants : '
    Taking- RaymoncVs Case precisely as it stands when placed in tbe light most favorable for the claimant, he is not entitled to recover. This court has never allowed a recovery unless the plaintiff clearly traced his cotton to the hands of some officer directly charged with the duty of caring for it and seeing that its proceeds did reach the Treasury. (OrusseWs Case, 14 Wall., 1.) This cotton was taken solely and expressly for a military use. If any of it escaped, that was not because it ivas not subjected to all the hazards of the situation, and of the purpose for which it was seized. The Court of Claims has no jurisdiction as to such property. (Act July Alh 18(14, 13 Stat. L., 381.) It was taken not simply as cotton, but as a suitable material from which to construct defensive works. Its appropriation by the .Army was to purposes purely military. (Mlor’s Case, 9 Wall, 48.)
    At least, it is not incumbent on the Government-in such cases to prove that any or how much escaped. If entitled to recover at all, the claimant should show this.
    Of course, if the proposition that the cotton must be specifically traced is sound, there can be ,no occasion for forming a fund. If the doctrine of confusion of goods is applicable at all, only those parcels should be treated as a mass which were in fact mingled. Different aggregations known to have been seized, shipped, and sold at places and times far apart, ought not to be thrown together, so as to make confusion worse confounded. For instance, cotton known to have been^put into the fortifications at Vicksburgh should only claim a pro rata. share of cotton known to have been taken from those fortifications, &c.
    If the court could create a fund from the proceeds of intermingled cotton, that formed in this case is evidently erroneous, and not accordant with the principles of law nor with the requirements of natural justice. It swept into one common mass cotton taken from various places throughout the whole State of Mississippi; though the commissioner reports that “the most of it” “was captured in the vicinity of Vicksburgh,” and transported to and shipped from that city. But detailed Exhibit No. 2 shows that certain small quantities were shipped from Haines’s Bluff, Perkins’s Landing, &c.; and that very large amounts were skipped direct from Natchez. Upon what conceivable theory should a man whose cotton went to and from Natchez contribute to pay for that dug up or captured at Yicks-burgh ? Take the last item in that exhibit: lot 74, one hundred and eighty bailes, shipped from Chickasaw Bayou to Memphis in June, 1863 j value, $40,668.93. Why should this cotton, forwarded in the month before Yicksburgh surrendered, be deemed part of the mass obtained there ?
    Time as well as space was disregarded in creating this fund. Cotton shipped from Yicksburgh and other places in 1863, at dates from July to December of that year, enters into it.
    Cotton specifically traced was thrown into this mass. That which is followed direct from Natchez to its place of salein Cincinnati is subjected to the losses and risks of Yicksburgh. How much was obtained on the Yazoo River expeditions could be known. It was put in with the Yicksburgh cotton because shipped from there. That is, because it happened to go North from that port, after it became as peaceful as Saint Louis, it must be subjected in law to those risks and losses of the siege which in fact it confessedly escaped.
    Though by the Revised Statutes, pp. 197, 198, §§ 1070,1075, the Court of Claims can appoint acommissioner to take testimony, he has no authority to report inferences or conclusions from the testimony, nor can the court act upon such conclusions. Certainly they cannot delegate to another their judicial powers, and refer to him the very issue raised by the pleadings. (Lunsford v. Bostion, 1 Dev.’s Eq., (No. Car.,) 483.)
    The claim in KidcVs Case is charged upon the first fund aforesaid. “The proof shows that the claimant owned and had in possession on his plantation,in Hinds County, Mississippi, in May, 1863, five hundred bales of cotton, and that the same was taken by the United States Army to General Osterhaus’s headquarters, and hauled the next month in Army wagons, in charge of United States soldiers, toward Yicksburgh.” The claimant only called for 480 bales in his petition, and judgment was rendered in his favor for that number, at the specified rate of the cotton in that “fund,” $177.55 a bale. Kidd states expressly that said cotton was “temporarily used for Army purposes.” This brings it within the decision in Mlor’s Case, (9 Wall., 49,) since thé proof sustains the statement that it was taken for such use.
    
      The cases mentioned below agree with numbers 908 and 911 stated above, unless in the following circumstances :
    In Cowan’s Case, in May, 1863, the cotton was seized by soldiers of the United States in Warren County, on a plantation [eight miles east of Vicksburgh] and carried away toward Vicks-burgh. The petition states that it was used for military purposes.
    In Brabston’s Case, a few days before the fall of Vicksburgh, the cotton was seized in Warren County by the officers and soldiers of General Osterhaus’s command and taken to Big Black Bridge, and there was mingled with other cotton. It then lost its identity, but must be taken to have gone into the mass of cotton captured at and shipped from Big Black Bridge to Vicks-burgh.
    In Shear’s Case, it is for cotton taken late in May, 1863, in Warren County, Mississippi, “by United States officers and soldiers, and conveyed in Army wagons toward Haines’s Bluff, on the Mississippi Biver,” and traced no further. The petition admits that it was originally taken for Army purposes.
    In Coolc’s Case, about the middle of June, 1863, the cotton was captured in Warren County, about eight miles east of Vicks-burgh, by a party of United States soldiers, and transferred in wagons, and in part, at least, unloaded at fortifications in the neighborhood, and used for defensive purposes. After the fall of Vicksburgh some of the claimant’s cotton was identified in that city. The only “fund” responsible for this (in any event) is that created by cotton dug from the fortifications.
    In Ha-wMns’s Case, about July 3, 1863, the cotton was seized in Warren County, and carried away in Army wagons by soldiers under command of an officer toward Vicksburgh. It is traced no further.
    In Cowan’s 2d Case, in June, 1863, the cotton was seized in Warren County near Big Black Bridge, and taken away in Army wagons by United States soldiers under command of an officer. The evidence does not show to what point the cotton was taken.
    In McLean’s Case, the claimant’s cotton remained upon its owner’s plantation in Yazoo County and in his possession till February 14,1864, when it was seized, with other cotton, by Colonel Coates’s expedition up the Yazoo Eiver, and carried down toward Vicksburgh. Whether it ever reached there or not, the fond, if any, responsible for it is tbis Yazoo cotton, and not that which bad been carried from Vicksbnrgb North, and its proceeds passed into the Treasury months before this was taken.
    In Johnsons Case, it was seized by soldiers, the same day, and took the same course.
    In Bodenheim’s Case, upon reaching Yicksburgh the cotton was turned over to an assistant quartermaster of the Army.
    In Smith’s Case, the cotton was captured in December, 1863, by a portion of Colonel Osband’s expedition; was then loaded In vessels and shipped from Skipwith Landing down the river, (i. e., in the direction of Yicksburgh.) It is charged upon the third fund. Exhibit No. 4 shows how this fund was made up. Every bale of it was shipped before December, 1863, while his was taken that month; so it is demonstrated that it is not entitled to share with these proceeds.
    The additional findings do not actually state any additional facts. They could not, because the Court of Claims had strained the testimony in its original findings to the utmost. Tbe “ ultimate fact” of a reception by the United States, or its authorized agents, for other than military uses, at any rate, is not shown by any direct proof, but is inferred as presumption of law, from the facts stated. These findings, as well as the original ones, do not justify the legal conclusion reached. In addition to what is now said, we also rely upon the recent argument on behalf of the Government in Boss’s Case, now under the consideration of the court.
    
      Mr. Joseph Casey for some of the appellees :
    Substantially these cases are dependent upon the same facts and principles. Two of the cases, Raymond, assignee, and McLean present a slight shade of difference, the cotton having come from Yazoo Eiver.
    In Kidd’s Case, (which fairly represents all,) the claimant resid ed on Ms plantation, lying immediately east of Big Black Eiver, and on the Jackson and Yicksburgh Eailroad. It lay immediately in the line of the march of General Osterhaus’s division of General Grant’s army in its march on Yicksburgh, in May, 1863. The railroad-bridge over the Big Black Eiver is eleven or twelve miles east of Yicksburgh, in the direction of Jackson. This division encamped for some time at this railroad-bridge, while other divisions of the army were getting into positions to prosecute the siege. While lying there, the officers and soldiers of General Osterhaus’s division seized a large amount of cotton, and it was piled up in long rows near his headquarters. Among the rest, he seized 500 bales from the claimant, Kidd, which he had raised, gathered, ginned, and baled on his plantation; and it was hauled to headquarters and piled up, intermingling with the other cotton taken from various other persons. In June, 1803, when General Osterhaus was ordered to advance, all the cotton gathered there was loaded on United States wagous, and carried forward with the advance of the division toward Yicksburgh.
    Most of this cotton was used as breast and counter works in prosecuting the siege, and it was there still further intermingled. The city surrendered on the 4th of July, 1863. On the 14th of the same month, General McPherson, who was put in command of the city and its environs, issued an order directing the cotton used in the siege, on both sides, to be gathered up and delivered over to the Treasury agent at Yicksburgh. Some 2,700 bales were brought in from these works and delivered to the agent, and by him forwarded and sold.
    But this cotton, not only in its seizure, but in its use, its reclamation, and delivery to the agent, was intermingled. Its exposure to the weather and its contact with the earth necessarily obliterated the marks, so that it could not be distinguished. Five thousand and seventy-eight and a quarter bales of cotton were received by the agent at Yicksburgh during the remainder of 1803, after the surrender, and 1864. Out of this number, but 617 were specifically traced, and 572 of these were the Elgee cotton, recently decided by this court, and it was only traced because the owner followed it up from place to place until it was sold at Saint Louis.
    The schedule on pages 14 and 15 of the record shows the receipt, shipment, &c., of the various lots.
    These figures show a large deficit, both in bales and net proceeds. It is accounted for by table No. 1. It appears from that and the other evidence in the case that the then Secretary of the , Treasury and his agents usurped the functions and powers of the courts, and .proceeded to adjudicate upon this captured and abandoned property and its proceeds. The evidence shows that out of this Yicksburgh cotton 846 bales in kind were released. These, at the average of the sales, $298.51 per bale, would have added to this first or Vicksburg'h fund the sum of $252,539.46. They also released in net proceeds $407,688.07, representing 1,497 bales, and that, too, without the shadow of right or authority.
    In addition, there have been recoveries out of this fuDd in the Court of Claims and this court of $567,739.36, representing 1,450 bales.
    My first point is, the United States have no interest in this controversy.
    There were received at and shipped from Yicks-burgh and sold 5,078¿ bales, for the net sum of $1,516,050 66 or $298.51 per bale.
    There were judgments which had been recovered
    in Court of Claims, 1,450 bales. 597,737 36
    Balance remaining. 948,313 30
    This was the proceeds of only 3,628¿ bales.
    But the commissioner’s report made 5,341 bales owned by private parties payable out of this fund, reducing the pro rata per bale to them to but $177.55, instead of $298.51.
    These cases had been referred to the commissioner, so that the claims upon the fund could all be made at the same time, so that each could contest the other’s claim, and the United States only pay the amount they had received.
    Of the amount allowed upon the fund, judgments were rendered for 2,250 bales, as per table No. 1,
    paid by United States... ..$399,487 50
    1,516 bales in appealed cases.'- 269,165 80
    1,199 still pending in Court of Claims on proceedings.,. 212,772 50
    4,965 bales.•. 881,425 80
    RECAPITULATION.
    Whole amount of proceeds of captured cotton from
    Yicksburgh remaining for distribution. $948,313 30
    Paid out on judgments, as per table No. 1. 399,487 50
    Balance still in Treasury . 548, 825 80
    
      Out of this sum, these appeal cases, representing 1,516 bales, claim $177.55 per bale, as in table No. 3 $269, 165 80
    Oases in table No 3, still pending in Court of Claims, claim 1,199 bales, at $177.55 . 212, 772 50
    -$481,938 30
    Left after paying all claims made on the fund.... 66,887 50
    Again r The judgments paid to claimants as per table No. 1 were abated in amount on account of these appealed cases, as follows:
    2,250 bales, at $298.51. $671,647 50
    2,250 bales, at $177.55... 399,487 50
    Taken from and relinquished by claimants in
    table No. 1 ... 272,160 00
    Whole amount claimed by appealed cases, as per table No. 2... 269,165 80
    Balance... 2, 994 20
    The United States are estopped conclusively, by this record, to deny our right to and interest in this fund.
    But, assuming this as a contest with the United States, in which they have an interest, do the facts as found by the Court of Claims, and certified upon the records, sustain the judgments in favor of these claimants ?
    I take, first, Kidd’s Case. The court finds:
    “ The claimant owned and had in possession on his plantation, in Hinds County, Mississippi, in May, 1863, five hundred bales of cotton, and the same was taken by the United States Army and transported to the headquarters of General Osterhaus. Afterward, in June, 1863, it was transported in Army wagons, in charge of United States soldiers, toward Yicksburgh. That the cotton owned by the claimant constituted a part of the cotton received by the Treasury agent at Yicksburgh, and contributed to the fund set forth in the commissioner’s report, which forms a part of the findings of the court. The cotton so seized was intermingled with other cotton, belonging to other persons, immediately after capture and before shipment, so as to destroy the identity of the several lots; and the various shipments from different points were subsequently intermingled, ill whole or in part, at Vicksburgh, so that it is impossible to determine whether the cotton of any owner remained in a shipment from the original point or went into intermingled shipments from different points ; and it is likewise impossible to ascertain the specific rate at which he should recover, except by throwing the whole into a common mass, as has been done in the report of the commissioner, forming part of the previous findings of the court.”
    “The court finds that the proceeds of the sales of the claimant’s cotton do constitute a part of the fund found to be in the Treasury, accruing from the sales of the intermingled mass of cotton so shipped from Vicksburgh and sold at Saint Louis and Cincinnati, more particularly set forth and described in the report of the commissioner, which forms a part of the previous findings of this court.”
    The first ultimate fact stated is the verbatim statement, as orginally returned. The others are also the verbatim return of facts certified, in answer to the call and direction of this court, stripped of the explanations which accompany the report, and which are mere surplusage, and constitute no part of the findings.
    This court ordered and directed the Court of Claims to certify these ultimate and final facts :
    “1st. Whether the cotton owned by these respective claimants, and seized from them by the United States, did or did not constitute a part of the cotton delivered to and received by the Treasury agent of the United States at Vicksburgh, Miss., during the years 1863 and 1864, and whether or not the same was there intermingled with other cotton, belonging to other persons, so as to destroy the identity of the several lots belonging to the various persons from whom the same had been seized.
    “ 2d. Whether the proceeds of the sales of the various lots of cotton owned by and seized from the respective appellees in these cases do or do not constitute a part of the fund found to be in the Treasury of the United States, accruing from the sales of the said intermingled mass of cotton, so shipped from Vicks-burgh, Miss., during said years 1863 and 1864, and which was sold at Cincinnati and Saint Louis for and on behalf of the United States.”
    Your honors asked only to be informed and certified of the conclusion of facts arrived at by the Court of Claims, not the proofs or items of evidence by which the court arrived at those conclusions; not whether the evidence was direct and positive, or circumstantial and presumptive; but what ultimate deductions, as to the points specified, did the Court of Claims draw from all the facts proved before them. Whether the inference, deductions, presumptions, and conclusions drawn by that court are or are not justified by the evidence and the facts proved, cannot arise here, for your honors could only judge of that intelligently and correctly by having all the evidence before you which the Court of Claims had when they found the facts and decided the cases; but this you have not, either in fact or substance, and it would be utterly incompatible with the duties of this court, and impossible of performance, if it were not, to re-examine here the facts in the voluminous records of the Court of Claims. To obviate the necessity for this, and to compensate for it, Congress has provided that at any time within two years from the final disposition of a cause the United States may move for a new trial in the Court of Claims, upon evidence, cumulative or other, that shows that any fraud, wrong, or injustice has been done to the United States.
    Your honors required the Court of Claims to certify whether the cotton owned by these claimants did or did not constitute a part of the cotton delivered to and received by the Treasury agent at Vicksburgh, during the year 1863; and the court answers positively that it did constitute, a part of the cotton so received.
    Whether or not it was there intermingled with other cotton, and its identity lost and destroyed, the court responds, it was so intermingled and its identity destroyed; and all of it so confused that it was necessary to throw it into a common mass or hotch-pot.
    Whether the proceeds of the various claimants’ cotton do or not constitute a part of the fund found to be in the Treasury, accruing from the sale of the mass of the cotton with which theirs had been intermingled, the court positively finds and affirms that the proceeds of the sales of claimant’s cotton do constitute a part of the fund found to be in the Treasury, arising from the sales of this intermingled mass of Yicksburgh cotton.
    This case bears little more resemblance to the case of Crus-sell, (17 Wall.,) or that of Silvej/, (7 O. 0., 278,) than it does to Shelley’s case. There, especially in the Silvey case, the ultimate facts found failed to trace the property into the hands of' a Treasury agent, or any one whose duty it was to turn it oyer to such an agent. But here we show seizure by the military; then the cotton in the hands of a Treasury agent; th,en its shipment and sale; and, finally, the proceeds are actually traced into' the Treasury of the United States.
    But, I submit again, that in order to raise the presumption of the Orussell and Silvey cases it. was not necessary that it should be traced into the hands or custody of a-quartermaster. Any and every other officer and soldier was justas much bound to turn it over to the Treasury agent as a quartermaster. The sixth section, act of March 12, 1863-, provides—
    “ That it shall be the duty of every officer or private of the regular or volunteer forces of the United States, or any officer, sailor, or marine in the naval service of the United States, upon the inland waters of the United States, who may take or receive any such abandoned property, or cotton, sugar, rice, or tobacco, from persons in such insurrectionary districts, or have it under his control, to turn the same over to an agent appointed as aforesaid, who shall give a receipt therefor; and in case he shall refuse or neglect so to do, he shall be tried by a court-martial, and shall be dismissed from the service, or, if an officer, reduced to the ranks, or suffer such other punishment as said court shall order, with the approval of the President of the United States.”
    If the United States desire to contest the authority and right of the Court of Claims to confer certain powers upon the commissioner, they should have produced the order for his appointment. If this had been done, it would appear that the appointment had been made to ascertain facts and report them to the court, leaving either party the right to dispute or controvert those facts, and so have them retried by thecpurt as if no such report had been made. Besides, it appeared in several cases that great injustice would be done both to the Government and claimants by trying each of these causes separately,, for each claimant would prove his whole case and be entitled to recover the full value of all so proved; while the fact was apparent to the court that, through inevitable losses, releases, and great frauds and embezzlements, thé funds in the Treasury were insufficient to pay all in full. They did, therefore, what this court expressly sanctioned in the Slgoe Case. They marshaled the different funds, and made tbe different and respective claimants come in and make their claim upon those funds, leaving tbe United ,States to resist any claim, and each of the claimants to contest that of any other to participate in these funds. The United State's, has gained largely in this way.
    
      Mr. P. Phillips for Maybin’s assignee in bankruptcy:
    The motion made to substitute A. F. Gardner, assignee in bankruptcy of R. G. Johnson, as appellee is met with the suggestion of opposing counsel that the case falls within the 5057th section Revised Statutes, which provides a limitation of two> years for suits between an assignee and a person claiming an adverse interest. It needs no argument to show that this has no application to the present motion. In the first place, this is not a suit commenced by the assi gnee, but the continuance of a proceeding already in existence. Again, the application is not to assert “adverse interest,” but to represent by the proper party the bankrupt’s own interest, which by operation of law is vested in his assignee.
    We now proceed to the in quiry whether the judgment rendered in favor of the claimant is erroneous. In other words, whether the facts found by the court justify the judgment.
    The facts found are conclusive of the case, without it can be maintained that the court was not authorized to find a fact without “ direct proof.” The court had its judgment satisfied from all the circumstances of the case, though they say this was “ without direct proof.” Does the insertion of these words destroy the validity of their finding ? The conscience of the court acting as a jury must be guided by satisfactory evidence. This is sometimes termed sufficient evidence, that is, the amount of proof which ordinarily satisfies an unprejudiced miud beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern to his own interest. In trials of fact the factum próbandum is either directly attested by those who speak from personal knowledge, or is to be inferred from other facts satisfactorily proved. The facts proved are in both eases directly attested. In the former case the proof applies immediately to the-facttim probandum, without any intervening-process, and is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts supposed to have a connection near or remote with the fact in controversy, it is termed circumstantial, and sometimes, but not with entire accuracy, presumptive. (1 Greenleaf Ev.)
    We are not now dealing with the question respecting the competency or admissibility of evidence. This is entirely distinct from the question of sufficiency or effect. The former belongs to the court exclusively; the latter as exclusively to the jury. As the jury in this case has found the fact, their verdict is conclusive, though it is stated it was found “ without direct evidence.”
    An objection has been much urged against what has been stigmatized as the “machinery” used by the court to aid its determination of the controversy arising out of the many claimants to this fund, and much criticism has been made on the statement by the court that “ the title of the claimants and their right to the proceeds have been determined upon evidence irrespective of the commissioner’s report whenever requested so to do by either the claimant or defendant.”
    We must apply the ordinary rules which govern in the trial of cases in all other courts. The Government is represented fully in the Court of Claims. The commissioner was employed to collate the evidence and to make report. He did so by reporting the facts as shown by the evidence. Now, if the facts as reported by him were not justified by the evidence, this constituted a just ground of - exception to the confirmation of the report, and it was the duty of the Government to make it. If the report is justified by the evidence, there is no ground to object that the truth cannot be acted on because a commissioner was authorized to ascertain it.
    The right to appoint this aid to the court is one which has been used time out of mind. It is said to sustain the objection that the representative of the Government could not by silence or consent give the court jurisdiction. Grant this, and yet we do not see its application. If a claimant below should offer secondary evidence of a fact, and the Attorney-General should agree that the court should receive it, we do not suppose that this could here be assigned for error on the ground that consent could not confer jurisdiction, nor indeed on any other ground.
    In conclusion, we may say that the law, in allowing’ the Court of Claims finally to pass upon the facts of a case, places the interest of the Government in no jeopardy. This is a statutory court sitting under the eye of Congress, and the most reasonable objection to its creation was founded on the apprehension that in its decisions it would be strongly influenced by the power that created it, and on which it depended for its existence. Whether this apprehension was well founded or not, certain it is that there is no interest or influence exerted on the court in behalf of claimants. For ourselves, we believe that the court has held the scales of justice with a steady hand, and that it will continue to increase the confidence which it has already inspired.
    
      
       See the foot-note to Hose’s Case (ante) for the distinction between this conclusion of fact and a presumption of law drawn from the same circumstances.
    
   Mr. Chief-Justice Waite

delivered the opinion of the court:

The facts in these cases, as shown by the records and the findings of the Court of Claims, are as follows:

During the years 1863,1864, and 1865 large quantities of cotton were captured by the military forces of the United States and taken from the owners in the State of Mississippi. The identity of the several parcels so captured was destroyed, and the property of each owner could not be traced. A very large quantity was used by the Army of the United States for defensive purposes in the vicinity of Vicksburgh. Much of it was stolen, destroyed, or otherwise lost. • After the surrender of Yicksburgh, such as could be found and saved was collected at that place and at Natchez, and afterwards intermingled and stored in a common mass. Subsequently it was sent forward and sold by the Treasury agents in the same intermingled condition. The proceeds were paid into the Treasury as a common fund produced from the sale of this common mass of unidentified cotton, shipped and received under these circumstances.

The Court of Claims found as a fact that the cotton of each of these several plaintiffs contributed to and formed part of this mass so intermingled and sold. This finding was not based upon evidence specifically tracing the property of each claimant, but upon the assumption that, under the circumstanees attending’ these collections, all cotton started from the place of capture, on the way to Vicksburgh or Natchez, in a manner that would naturally carry it into the mass, must be presumed to have gone there, unless it was shown to have been lost or shipped to some other point.

The court upon this finding ascertained the amount of the fund remaining in the Treasury, after deducting- payments theretofore made to other claimants; the number of bales sold to create the fund for which payment had not already been made, and the number of bales contributed by each of these plaintiffs to the common mass. It then gave j udgment in favor of the plaintiff in each case for a sum which bore the same proportion to the whole fund still on hand that the number of his bales did to the whole number then represented by the fund.

From these judgments the United States have appealed.

It is difficult to see how the United States can complain of the judgments that have been rendered in these cases upon the facts as found. The aggregate of the whole is no more than the amount of money in the Treasury to the credit of the fund, and which, as we have often decided, is a trust for the benefit of such as should establish their claim to it under the provisions of the Abandoned and captured property Act.

Each contributor to a common fund becomes interested in the fund in proportion to his contribution. Each owner of property intermingled with other property of the same kind and value, and stored in a common mass, becomes the owner as tenant in common of an interest in the mass proportionate to his contribution. If loss occurs while the common ownership continues, each owner must sustain his proportionate share.

Here the property of different owners was intermingled in a common mass. There was, therefore, an ownership in common. The Court of Claims ascertaining that there was likely to be a deficiency in the fund, very properly brought all the several claimants together and conducted the suits in such a manner as to compel them to litigate with each other. The judgments rendered represent the resfilt of this litigation. The several claimants are satisfied. The time has elapsed within which new claims can be presented against the fund, and, so. far as we can discover, substantial justice has been done. The United States have only been made liable for cotton the proceeds of which have been clearly traced into the Treasury, and these judgments discharge them from further responsibility on that account.

A portion of the cotton was, after its capture, used for military purposes, but the United States are now charged only with that which was afterward sold under the provisions of the Abandoned and captured property Act, the proceeds being in the Treasury, and constituting the fund now under consideration.

The Court of Claims cannot delegate its judicial powers. It must itself hear and determine all causes which come before it for adjudication, but we see no reason why it may not use such machinery as courts of more general jurisdiction are accustomed to employ, under similar circumstances, to aid in their investigations. In these cases complicated accounts and complicated facts were to be passed upon. The court referred them to a special commissioner to state the accounts, marshal the assets, and adjust the losses, “so that equal and exact justice should be done to all.” The report of the commissioner, when made, was considered by the court, and, after due deliberation, approved. The court determined the title of the several claimants and their rights to the proceeds upon evidence irrespective of the commissioner’s report, whenever requested to do so by the claimant or the defendants. We see no error in this. The judgments rendered are the result of the deliberation of the court, and not that of the commissioner alone.

The judgment in each of the cases is affirmed.  