
    Lucy H. Carroll, Administratrix, v. The United States.
    
      On the Proofs.
    
    
      On the first trial this eourt finds the decedent guilty of disloyal acts, and decides that the administratrix cannot maintain a suit for the proceeds of his captured 
      
      property. The Supreme Court reverses the decision upon the ground that the property when seized ivasinpossession of the administratrix. On the second trial it appears that one hundred and fifty-five hales of the claimant’s cotton were taken hy the military from the Treasury agent, mingled toith other cotton, and placed in the fortifications at IAltle Itoak. Of these one hundred and fifty-five hales, only fifty-four could he identified afterward. But of the mass that went into the fortifications, five hundred and forty-two hales, only three hundred and sixty-two hales were recovered. The claimant insists that she should recover for all captured; the defendants, that she should recover only her proportion of the gross quantity recovered irrespective of the proportion identified.
    
    I. Erom the decisions of the Supreme Court it must l>e inferred that possession at the time of seizure is a controlling element to determine the “ownership” of an administrator in captured .property; and that the Abandoned or captured property act must he construed thus: Where the property was captured during the life-time of a decedent, evidence of his loyalty is sufficient, to maintain an action; hut where the seizure was after administration, the loyalty of the decedent is immaterial, and the right to maintain the action depends upon the loyalty of the administrator.
    II. It is not yet determined whether the doctrine of pardon and amnesty extends to resident aliens, to foreigners, or to persons who died after the seizure of their property, but before they availed themselves of the proffered clemency, and before the General Amnesty Proclamation 25th December, 1868.
    
    III. Where a mass of captured property belonging to several owners lias been in part destroyed, that which is saved should be awarded to the respective owners, so far as it can be identified; and the remainder, which cannot be identified, should be apportioned among all in the proportion that each contributed to it.
    
      Mr. B. M. Gorwine for the claimant.
    The claimant was, in her fiduciary capacity, the owner of three hundred and eighty-nine bales of cotton, the production of the plantation of her deceased husband, and taken by the Treasury agents in the spring of 1864, sold, and the proceeds paid into the Treasury, amounting to $112,140.21. Claimant’s decedent died in the fall of 1863, never having taken any part in the late rebellion, but having remained loyal to his Government. The claimant at no time gave aid and comfort to the enemy. The testimony of all the witnesses hut Mr. Barber is clear to these points.
    The fact that a portion of the cotton of claimant went into* the fortifications at Little Bock, and when returned the marks of some of ifc were obliterated, cannot impair the claimant’s right to the proceeds of all that was taken. All the cotton that went into the fortifications came out and was turned over to the Treasury. Having used the claimant’s property in that way, without her consent, the' defendants shall not now be permitted to claim and hold the. proceeds of such of the cotton as was taken out without marks, simply because there were no marks.
    
      Mr. Alexander Johnston for the defendants:
    The testimony shows the seizure of three hundred and eighty-nine bales, the shipment of two hundred and thirty-four bales to Mellen, supervising agent, &c., prior to 'May, 1864, and the taking of 155 bales by the military, and placing the same in the fortifications at or about Little Bock. Of this latter amount, when the cotton was removed from the fortifications, only fifty-five bales were identified as-the cotton belonging to Carroll, and were shipped to Mellen.
    Mellen’s accounts show the proceeds of one hundred and sixty-five bales of the first two hundred and thirty-four ,• and of the sixty-nine bales, balance of same lot. Nothing is shown of the receipt by him of the fifty-five bales shipped 8th July, 1864.
    No claim is therefore established to any of the cotton except ■the two hundred and thirty-four bales.
    
      
       But see Meldrim ‡ Doyles Case, post.
    
   Nott, J.,

delivered the opinion of the court:

When this case was first tried, it was held by this court that the administratrix, seeking as such to recover under the Abandoned or captured-property act, stood in the stead of the decedent, representing his rights,^ entitled to his equities, and subject to his disabilities ,• that her own interest in the estate as administratrix was simply representative, and that the rights of the real párties in interest could neither be aided nor de-, stroyed by her loyalty or disloyalty. We were not ignorant that at the common law an action of trespass or trover may be maintained by an administrator in whose name and from whose custody property has been taken, and that the common law regarded him as the technical legal owner; but we were at the same time aware that such actions were merely possessory, while the statute under which we act does not award a cause of action to the person in possession of the captured property, or- entitled -to possession, but, on the contrary, bases such actions on “ ownership ” instead of on possession, and couples with u ownership ” an equitable right to the “ proceeds.”. Cases too, arose where a loyal decedent was represented by a disloyal administrator, and it seemed to us abhorrent to the just and equitable intent of the statute to allow the estate of a loyal citizen to be in effect confiscated because of the accident or chance of the administrator’s guilt. Referring to the analogies of the common law, we thought the closest to be. that of an executor under the ban of outlawry, who was allowed, nevertheless, to maintain his action, because in contemplation of law it was to protect the rights of others and not his own.

Of cases thus adjudicated by this court, two were taken to the Supreme Court. The first was that of Klein, administrator, (4 C. Cls. R.-, p. 559.) In it this court had found the decedent loyal and the administrator guilty of disloyal acts. Subsequently, on newly-discovered evidence, the court incorporated into its findings, by consent of parties, a finding that the decedent had been guilty of giving aid and comfort to the rebellion, but that he had taken the oath of amnesty before the seizure of his property, making the case, so far as his loyalty was concerned, identical with Padelford’s, (9 Wall. R., p. 531,) and leaving the position of the administrator precisely as it was before. In the Supreme Court the contest seems to have been entirely upon this amnesty of the decedent, and the decision of this court upon the point of the administrator’s guilt stands unquestioned and affirmed.

The second of the appealed cases is the one at bar. On the former trial it was found that the decedent had been guilty of giving aid and comfort to the rebellion, and it was held that the administratrix’s loyalty was immaterial,- notwithstanding that the seizure was subsequent to her administration. The Supreme Court has reversed this decision,-and now holds that the administratrix is the owner within the meaning of the act, and that, on proof of her loyalty the action may be maintained.

■From these decisions of the Supreme Court, it must be inferred that possession at the time of seizure is a controlling element to determine the ownership of captured property, and that the statute is to be construed thus : Where the property was captured during tbe lifetime of a decedent, evidence ofbis loyalty is sufficient to maintain an action; but where the seizure was after administration, the loyalty of the decedent is immaterial, and the right to maintain the action depends upon the loyalty of the administrator.

So far as the mass of litigation is concerned, the decisions of the-Supreme Court on the effect of amnesty and pardon reuder this ruling comparatively unimportant; but it is not yet determined whether the doctrine of pardon and amnesty extends to resident aliens, to foreigners, or to those persons who died after the seizure of their property, but before they availed themselves of the proffered clemency, and before the general proclamation of 1868.

In the case now before us, the claimant seeks to recover the proceeds of three hundred and eighty-nine bales of cotton captured near Lewisburgh, Arkansas, which proceeds, it is claimed, amount to $125,628.

The cotton we find, after seizure, was taken to Little Bock, where it fell into three parcels:

1. One hundred and sixty-five bales were shipped from Little Bock in April, 1864. They bore the mark of the claimant’s cotton, “ <?. GY.;” they were described in the vouchers of the Treasury agent who shipped them as 11 from the abandoned plantation of George Carroll,” and they were sold in Cincinnati for $39,837.20, net.

2. Sixty-nine bales were mingled with other cotton, and formed part of a shipment of two hundred and thirty-eight bales which went forward in May, 1864. They are identified in the same manner, by the marks on tbe bales, and the description in the Treasury agent’s vouchers. . They were sold in Cincinnati for $450.39 a bale, net, amounting to $31,076.91.

3. One hundred and fifty-five bales, remaining at Little Bock, were seized by the military, and put into fortifications hastily thrown up on the occasion of an expected attack on that place. Of these one hundred and fifty five bales, only fifty-four could afterward be identified. At the same time other cotton had gone into the fortifications, and other cotton had come out of the fortifications, but the quantity which went in was five hundred and forty-two bales, while the quantity which came out was only three hundred and sixty-two bales, showing a loss of one hundred and eighty bales. It is insisted by the claimant that sbe should recover for all of the cotton that came to the custody of the Treasury agent, irrespective of the use to which it was put and the loss which ensued; and by the defendants that she should recover only such proportion of the cotton saved as her cotton bore to that which went into the fortifications, irrespective of the portion which was afterward identified.

As to the claimant’s demand, we think that the loss of the cotton resulted from the appropriation of the property by the army; that we have not jurisdiction to afford relief; and that, as we have frequently held before, if there was a loss of captured property in mass which cannot be identified, all of the parties 'who held property affected by the disaster must contribute proportion ably to the loss. As to the position of the defendants that the proportion to be recovered must be estimated irrespective of the portion identified, we think it is too restrictive; for if, for illustration in this case, one hundred of the one hundred and fifty-five bales had been identified, that quantity would exceed the proportion which the defendants -propose to assig'n to the claimant. The better and more general rule would seem to be that where a mass of property belonging to several owners has been in part destroyed, that which is saved should be awarded to the respective owners, so far as it can be identified, and the remainder, which cannot be identified, should be proportioned among all in the ratio that each contributed to it.

Applying this rule to the case before us, we find that there went—

Into fortifications. 542 bales — 114 identified=428

Came out.. 362 bales — 114 identified=248

Giving as number lost... 180

which is equivalent to The claimant, then, should recover for—

Identified cotton. 54 bales.

Proportion of 101 unidentified, (Ts^-). 59 bales.

Total.,. 113 bales.

But the three hundred aud sixty-two bales of cotton which left Little Bock were subjected to further losses, so that but two hundred and seventy-seven reached Saint Louis. As the missing bales cannot be identified, the claimant must share in this additional loss. The two hundred and seventy-seven bales brought $71,888.68 net, whereof the claimant’s proportion will be only $198.58 per bale; for one hundred and thirteen bales, $22,439.54.

The judgment of the court is, that the claimant recover the proceeds in the Treasury of—

165 bales of cotton sold at Cincinnati. $39, 837 20

69 bales of cotton sold at Cincinnati. 31,076 91

113 bales of cotton sold at Saint Louis. 22,439 54

Amounting in the aggregate to.. 93, 353 65  