
    SUNDRY COTTON CASES.
    James J. Persons’ assignee, v. The United States. And sixty-seven other Cases.
    
      On the Oommissioner’s Report.
    
    
      In a large number of captured-eoiton oases it appears that the parcels of different owners were intermingled and the identity lost before sale. The counsel for the defendants not having talcen steps to consolidate the suits, and it being uncertain how much cotton was contributed to the fund in the Treasury, the court refers all the cases to a commissioner to marshal the assets. He segregates the proceeds of shipments from distinct points into funds, and malees all the cases the subject of a single report, which is talcen up by a motion to confirm, and is considered on exceptions filed. It appears that owing to thefts and losses from the mass, no claimant will recover the actual proceeds of his cotton. The commissioner therefore divides the fund by the number of bales of the successful claimants, so that they will absorb it entirely. The defendants object that they have succeeded to the Confederate States cotton which went into the mass. It also appears that the parcels of different owners were intermingled 
      
      before shipment, and then that different shipments were in some eases intermingled, before sale; so that it is. impossible to tell whether a specific parcel remained in a shipment from one point, or whether it went into intermingled shipments from different points. It also appears that there are parties before the court whose suits were not brought within the time prescribed by the Abandoned or captured property Act. They seelc to have a portion of the fund retained in court until Congress shall extend its jurisdiction to such cases.
    
    I. Where a number of distinct claimants are seeking relief out of a common' fund held by tbe Government as trustee under tbe Abandoned or captured property Act, and it appears tbat tbe fund may be exhausted before all are satisfied, and that tbe counsel for the Government has not taken steps to consolidate tbe suits by interpleader, the court, for tbe ultimate protection of tbe trustee and tbe later claimants, may send tbe cases to a commissioner to marshal tbe assets and charge tbe fund with losses, so that exact justice shall be done to all parties.
    II. Where a specific parcel of captured property is traced to the shipments from a specific point, but it appears that shipments from different points sometimes intermingled, and that it is impossible to determine ■whether the parcel remained in the shipments from the original point 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.
    III. Where suits under the Abandoned or captured property Act (12 Stat. L., 820) were not brought until after the 20th August, 1868, the court is without jurisdiction to hear them, and no reservation can be made from a fund about to be distributed to await the possibility of jurisdiction being hereafter conferred.
    IV. Semble the Government succeeds to the ownership of captured cotton which belonged to the Confederate States; and where such cotton went into an intermingled mass, which suffered losses before sale, the Government ■will be adjudged the owner of the Confederate cotton, and entitled to a distributive share of the proceeds of the mass.
    
      The Reporters* statement of tbe case:
    Commissioner Eveleth’s report comprised the following :
    In pursuance of tbe order of this court, dated on tbe 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. 1863, 1864, and 1865, the records not exhibiting any captured in the year 1S62. .
    I find that during these years 12,722 bales of cotton were captured or collected by authority of theUnited States in the State of Mississippi, and accounted for in tbe accounts rendered by Mr. William P. Mellen, supervising agent of tbe Treasury Department, and by Captains A. R. Eddy and G. L. Fort, officers of tbe Quartermaster’s Department of tbe United States Army, viz:
    Bales.
    Mr. Mellen’s accounts... 9,664
    Captain' Eddy’s accounts . 947
    Captain Fort’s accounts..... 2, 111
    In all..... 12,722 Of wbicb there were released in kind to
    various persons. 2,100
    There were burned, lost, or otherwise disposed of, as is shown in a tabulated statement marked Exhibit No. 1, and appended hereto..- 259
    -i 2,359
    And the number of bales sold is : . -
    By Mr. Mellen. 7,439 ,
    By Captain Eddy. 813
    By Captain Fort.-. 2, 111
    -10, 363
    Of these the number, the net proceeds of which were released by the officers of the United States to various persons claiming to be owners of cotton sold, is... 1,497
    The number of which the net proceeds were paid for collecting portions of the cotton sold is. 139|
    The number included in judgments entered in the United States Court of Claims is.... 2,702 - 4,338|-
    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 .....__ 6,024|
    The proceeds derived from the 10,363 bales sold are—
    By Mr. Mellen. 7,439 bales, $2,295,933 66
    By Captain Eddy. 813 bales, 247,143 08
    By Captain Fort. 2, 111 bales, 429,663 39
    10,363 2,972,740 13
    
      The expenses charged against the same are— By Mr. Mellen:
    Freight, &c.$207,346 44
    Custom-house fees. 117,862 93
    Internal-revenue tax.'.... 26,746 24
    -$351,955 61
    By Captain Eddy:
    Auctioneers’ fees, &c... 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
    Of which the amount remitted on payment of judgments in the Court .of Claims is:
    In favor of Samuel Worthing-ton’s adminis-tratrix _. $8,331 29
    In favor of William 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 customhouse fees and internal-revenue tax are included, are. 2,609,34211
    
      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., -. $407,688 07
    2. To various persons for collecting portions of the cotton sold. 30, 825 72
    3. Involved in appeal pending in the United States SupremeOourt, in the El gee 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-870, 683 43
    5. The net proceeds due to 45 bales specifically traced are. - 1,340, 266 20 14, 759 90
    And the balance in the Treasury available to payment of judgments in the Court of Claims is..-•. 1,413,685 08
    By reference to said tabulated statement, marked Exhibit No. 1, the above facts will be seen fully set out.
    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 in 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; but the cotton disposed of by the court has been included in 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 funds.
    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.
    FIRST FUND.
    The most of the cotton included in this report was captured in the vicinity of Yicksburgh, 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 Yicksburgh, 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 Yicks-burgh. After the surrender of Yicksburgh this cotton, or as much of it as could be saved, was collected and transported to Yicksburgh. The work of gathering cotton from the defenses around Yicksburgh 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 Yicksburgh, the people were in the habit of concealing 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 the year 1864, much 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 Yicksburgh 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 Yicksburgh 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 Yicksburgh for indefinite periods of time, and I am led to the belief that large quantities of cotton were retained in Yicksburgh many months 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 Yicksburgh. 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 Yieks-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 Biver, 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 Biver to Yicksburgh, 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, 1863. Of these, twelve bales were saved from burning at Perkins’ Landing, and three picked up in the Yazoo Biver. This cotton undoubtedly was the property of the people residing in the vicinity of Yicks-burgh, who contributed the 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 Biver, in June, 1863, was conveyed on wagon-trains to Haines’ 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, the1 date of shipment, the judgments of the court, and the number of bales remaining.available; to which reference is made.
    SECOND EUND.
    There are remaining available 334 bales of cotton, which were shipped from Vicksburgh during the year 1865. The record shows that these bales were all shipped from Vicksburgh in the month of July in that year. The funds remaining available, which arose from the sale of this cotton, I have set apart for the second fund. (See Exhibit No. 3.) There is but one case before' me in which the cotton is shown to have been shipped to Vicksburgh in this year, and I have charged the amount allowed therein upon this fund.
    THIRD EUND.
    During the year 1863 an expedition was sent to Washington County, Mississippi, under the command of General Eansom. Under him was Capt. (afterward Col.) E. D. Osband. This expedition, about the 1st of March, 1862, captured a large quantity of cotton. ■ About 2,180 bales of this cotton was shqyped on board the Empress to Memphis, where it was delivered to Capt. Greenbury L. Fort, assistant quartermaster, who, about the 10th day of April, 1863, sold 2,111 bales thereof, for $429,663.39, and used the money for the ordinary expenses of the Quartermaster’s Department. Colonel Osband was subsequently stationed at Skipwith Landing, and captured and shipped during that year several other lots of cotton.
    In addition to the said captures made by Eansom and Os-band, other lots were captured in that county in • April, May, June, July, and a small lot of 10-bales in November or December, 1863.
    I think all the cotton captured in Washington County during the time mentioned should be consolidated into one fund, to respond to the claims of those persons who show that their.cotton was seized in that county during that year. This will constitute the third fund. The particular lots which were derived from this county, with dates of shipment, &c., will appear from Exhibit No. 4, herewith filed.
    
      Two judgments of this court have been rendered in favor of parties claiming to have contributed to the Fort cotton. One was in favor of Samuel Worthington, for 814 bales and the sum of $165,673.42 ; and the other was in favor of William W. Worthington, for 222 bales and the sum of $45,177, being at the rate of $203.53 and $203.50 per bale respectively.
    By reference to the recapitulation of the various funds hereinafter set forth, it will be seen that this allowance was beyond the average rate per bale which can be paid to the remaining claimants out of the available funds in the Treasury arising from the sale of Washington County cotton. It appears, however, from the records of the Treasury Department that these judgments were not paid in full: charges for transportation, &c., at the rate of $8 per bale, and internal-revenue taxes were deducted, and only the balance resulting from these deductions was paid.
    The same charge of $8 per bale has been deducted by me from the fund remaining on hand derived from the Fort cotton.
    FOURTH BUND.
    In the counties of Bolivar, Coahoma, and Tunica, lying along the Mississippi Elver, and in the northern part of the State of Mississippi, a large number of bales of cotton was captured at various times and by various persons. Nearly all of this cotton was released in net proceeds, leaving in the Treasury a large sum obtained for internal-revenue taxes and customhouse fees. There are but 35 bales of cotton from these three counties remaining, which, in consequence of the retention of such taxes and fees, are represented by a very large sum of money, to wit, $21,553.50.
    I have put the cotton from these counties into a distinct fund, to be designated as the fourth fund, and file herewith a statement of lots in the fund, &c., with the dates of shipment, marked Exhibit No. 5.
    I have no case before me where the proceeds of any of the cotton captured in either of these three counties are claimed.
    FIFTH FUND.
    There were derived from the county of Tishamingo, being the northeastern county in the State of Mississippi, 6 bales and 13 bags of cotton in the year 1803 •, on the 28th day of March, 1863, 41 bales: and 118 bales in June and July, 1865, which I have designated as the fifth fund. The 6 bales and 13 bags are represented by $1,475.34, and the 41 bales are represented by $8,853.09, and the 118 bales by $23,982.10. (See, for x>articular information about this fund, paper marked Exhibit No. 6, and exhibit marked A. E. E., filed herewith.) There are no claimants for this cotton before me.
    SIXTH EUND.
    In September, 1863, the ram gunboat Hornet brought to Cairo, Ill., 116 bales and 5 bags of cotton, which were subsequently designated <^V> 2, and were, on the 5th of October, 1863, sold at Saint Louis for $11,351.68. The fund arising from this cotton I set apart as the sixth fund. (See Exhibit No. 7.)
    SEVENTH EUND.
    Nineteen bales of cotton were picked up on Island No. 37, in February, 1865, and sold for $3,801.61 on the 20th day of March, I860. This lot was numbered 202, and I have designated it as the seventh fund. (See Exhibit No. 8.)
    There are no claims against this fund before me.
    EIGHTH EUND.
    From the 1st day of January, 1863, to the 19th day of February, 1863, Capt. A. E. Eddy received from Captain Metcalf, acting quartermaster, 906 bales of cotton. This cotton was shipped by Captain Metcalf from Holly Springs, in Marshall County, Mississippi, to Captain Eddy, at Memphis. Of this cotton, 772 bales were sold by Captain Eddy in 1863; the remainder was released in kind to Mix & Co.
    The said sales produced in net proceeds the sum of...$235,447 58
    Out of this fund have been paid two judgments of this court for 358 bales, to wit: •
    P. B. Barringer, 106 bales.$32,573 80
    W. W. Cones, 252 bales.. 92,598 40
    - 125,172 20
    110,275 38
    
      Leaving a balance remaining available of 414 bales, represented by $110,275.38. This constitutes the eighth fund. (See Exhibit No. 9.)
    The following recapitulation exhibits the number of bales and amount of proceeds in the respective funds from which allowances are to be paid.
    FIRST FUND.
    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 &Elgee. 572 bales, 366,170 83
    J. W. Tick. 17 bales, 1,356 10
    1,308 534,660 81
    Specifically traced and allowed to James Meagher, 45 bales, 14, 759 90
    1,353 bales, 549,420 71
    Whole number of bales allotted to this fund.... 4,898J $1,475,381 73
    Deduct judgments, as above, and special allowance to James Mea-gher..■ 1,353 549,420 71
    Available... 3,545| 925,961 02
    SECOND FUND.
    Whole number of bales allotted to this fund is 334. $39, 915 32
    
      THIRD ETJND.
    Whole number of bales allotted to this fund is’. 2,387 $477,366 46
    Judgments to be deducted:
    Samuel Worthington’s ad-ministratrix . 814 $165, 673 42
    W. W. Worthington- 222 45,177 00
    - 1, 036 - 210,850 42
    Leaving available to the third fund. 1,351 266, 516 04
    On the fourth and fifth funds there are no claims.
    SIXTH FUND.
    Whole number ofpages allotted to thisfund is 116. $11,351 68 On the seventh and eighth funds there are no claims.
    
      
    
    There have been referred to me sixty-two cases claiming from the proceeds of the cotton embraced in this report; in forty-nine of them allowances have been recommended by me.
    The allowances made in forty-two of these cases are charged to and are payable out of the first fund. They aggregate 4,812 hales of cotton.
    The proceeds of cotton remaining for distribution in the first fund amount to the sum of $925,961.02, which gives an average rate per bale to each of the claimants on this fund of $192.42, and exhausts the fund.
    There is but one case allowed which is payable out of the second fund, and the allowance in that case is 22 bales. There are in this fund 334 bales, represented by $39,915.32 in net proceeds for distribution. This gives the sum of $119.50 per bale, leaving in the fund, after paying said judgment, the sum of $37,286.32.
    I have allowed, in the five cases payable out of the third fund, 2,002 bales, and there remain available therein in net proceeds the sum of $266,516.04, which gives an average rate per bale 33.12, and exhausts the fund.
    I have charged to the sixth fund 91 bales allowed to Joseph H. Willis. In that fund there are 116 bales and 5 bags, say 116 bales, represented by $11,351.68 in net proceeds. This gives an average rate per bale of $97.86. Ninety-one bales, at $97.86, is $8,905.26, leaving in the fund the sum of $2,446.42.
    I file herewith a schedule of the cases allowed, showing the number of bales claimed and the number of bales allowed and amount allowed in each case, the date and place of capture, and the point to which the cotton was first shipped. This schedule is marked Exhibit No. 10.
    I have prepared with much care tabulated statements of cotton, derived from the several localities in said State, giving full information as to the time and place of capture and shipment, so far as such information can be obtained, and also as to the disposition of the cotton and the fund remaining available.
    These tables are marked Exhibits Nos. 11,12, 13, 14, 15, and S. L. F.
    I have also prepared abstracts of the record histories of the various lots of cotton included in this report, and the same are herewith filled, and marked Exhibit No. 16.
    For information in regard to the bonds of indemnity taken from persons to whom payments were made by the agents of the Treasury Department out of the net proceeds of cotton sold, and in regard to the sales of cotton and the sum paid into the Treasury, I beg leave to refer to my first report, dated April 4, 1874, and Exhibit No. 17, herewith filed.
    
      
      Messrs. Bartley & Casey, Mr. George Taylor, Mr.. John D. McPherson, Mr. 0. 8. Lovell, Mr. 8. B. Jenner, Mr. T. R. N. McPherson, Mr. B. D. Cutis, and Mr. A. P. Rovey for the claim•ants.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Per Curiam,:

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 Yicksburgh 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. The United States; Daniel J. Dohan v. Same; Eliza A. Cochran v. Same; William E. Hall v. Same; Mary E. Bledsoe, guardian, v. Same; Martha Crane v. Same, are stricken 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 Wolcott v. Same; Susan Bolls v. Same; Mrs. V. O. West v. Same; Sylvia A. Perry v. Same; T. C. 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. Fox v. The United States; Jesse B. Ferguson v. Same; E. H. Pace v. Same; John Harod v. Same; Mrs. A. Smith v. Same; J. E. Fore v. Same; Joseph C. Jones v. Same; Cornelius T. Cunningham v. Same; Solomon Galinger v. Same, the report of the commissioner is confirmed, and judgment will be entered dismissing the petitions of the respective claimant s.

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 States, 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 E. Willis 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 E. 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 in 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:

FIRST FUND, AT $177.55 PER BALE.
Robert G. Johnson v. The United States, 149 bales.
Ellen D. Batcheldor x. Same, 51 bales.
John H. Newman v. Same, 50 bales.
E. K. McLean v. Same, 21 bales.
Thomas Y. Berry, administrator, v. Same, 149 bales.
Juliet Glass v. Same, 18 bales.
J. Reese Coolc x. Same, 40 bales.
Thomas A. Marshall v. Same, 22 bales.
Richard Taylor v. Same, 6 bales.
Thomas Kidd, guardian, v. Same, 64 bales.
James Stewart v. Same, 70 bales.
Charlotte Spear v. Same, 70 bales.
Mary P. Marye's Administrator v. Same, 45 bales.
Thomas Kidd v. Same, 480 bales.
Hiram Harrison v. Same, 200 bales.
Duff Green x. Same, 19 bales.
J. B. Brabston v. Same, 32 bales.
Sarah Cowan v. Same, 48 bales.
E. B. Willis v. Same, 40 bales.
Emma J. Jones v. Same, 100 bales.
Henry Bodenheim v. Same, 90 bales.
Alfred W. Brien v. Same, 40 bales.
John L. Hebron’s Assignee v. Same, 30 bales.
J. W. Maybins, assignee, v. Same, 400 bales.
Armstead Burwell v. Same, 118 bales.
John Willis x. Same, 125 bales.
William E. Hall v. Same, 300 bales.
James Meagher v. Same, 69 bales; and for 45 bales specifically draced, $14,759.90.
Mary W. Thomas v. Same, 112 bales.
Thomas H. Jett v. Same, 25 bales.
George Hawkins v. Same, 15 bales.
James J. Cowan, administrator, v. Same, 120 bales.
Benjamin Harwood v. Same, 75 bales.
Ann Maria Ragsdale v. Same, 100 bales.
Alexander Hutchinson v. Same, 130 bales.
John R. McAlpine v. Same, 100 bales.
Isaac R. Wade v. Same, 21 bales.
Clarissa Young v. Same, 116 bales.
Ann Eliza Routh v. Same, 75 bales.
THIRD EUND, AT $111.97.
E. E. Mount, administratrix, v. The United States, 5 bales.
Fredericlc A. Metcalf, administrator, v. Same, 55 bales.
Robert M. Douglas et al. v. Same, 1,457 bales.
William 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 $6,000, 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 of the commissioner.

And upon the foregoing findings of fact, the court decides-the following as its—

conclusions oe 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 had 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, wbo, as an accountaut, 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 Vicksburgh 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 out 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.  