
    Edwin M. Price v. The United States.
    
      On the Proofs.
    
    
      The claimant brings suit to recover the proceeds of cotton captured in Northern Georgia. Various Treasury returns treat the different captures there as forming one fund, and neglect to charge certain captures with losses occuring in transitu. The court now traces the different captures and separates the general proceeds into specific funds answerable to each capture.
    
    The different captures of cotton in Northern Georgia can he traced with some ■uncertainty into certain Government cotton sales at Cincinnati, and these sales furnish in turn certain distinct funds, out of which the respective captures are to he satisfied, so far as the ascertainment of the rate of the proceeds is concerned. The court now separates the general proceeds into specific funds and traces the various captures to the funds whore they respectively have gone.
    
      Mr. Thomas Wilson for the claimant:
    The ownership in the plaintiff of the cotton claimed in this .suit has been abundantly proved. The seizure of his cotton. and its hauling to Kingston and Adairsville, Georgia, were also proved from the mouths of many witnesses.
    The testimony renders this much plain and certain,' that we had one hundred and seventy-six bales of cotton, which were seized during the latter part of May and first part of June, 1864, and taken to Kingston and Adairsville; that there were received and shipped from those points to Nashville, by the proper officer, in cars under lock and key, four hundred and twenty-nine bales of cotton; that during those months there were received by the Treasury agent at Nashville, as from “ beyond Chattanooga,” five hundred and fifty-eight bales without marks, invoices, or identification, which.were sold, and that the proceeds are now in the Treasury. ■ '
    
      Mr. Assistant Attorney-General McMiehael for the defendants.
   Nott, J.,

delivered the opinion of the court :

The cottons captured in Northern Georgia, it is said, fall into two distinct classes: 1st, those captured before the fall of Atlanta; 2d, those captured in and around Atlanta. Nevertheless, through delay in transmitting some parcels of the former-class, these two classes did to a limited extent intermingle. The different captures, however, can be traced, with some uncertainty, into certain Government cotton sales at Cincinnati, and these sales furnished in turn certain distinct funds, out of which the respective captures are to be satisfied. To prevent future errors or misapprehension, it may be necessary to examine and set forth at this time what these different funds are which may be required to respond to this Georgia cotton. It. is to be understood that this court has always held that specific captures traced into and mingled with a mass of captured cotton must afterward contribute proportionably to the losses and disasters which may befall the mass. But unfortunately for the Government, the Treasury Department, in its reports to the court, adopted the opposite course of stating the price per bale which the residue of the cotton brought as the price per bale which claimants should recover; and unfortunately, instead of transmitting at the outset to the court all the facts and evidence in its possession, the Treasury transmitted chiefly its own results, so that it was not for a long time. suspected that any error existed in the amounts awarded. And no captures have been in their records so involved, intricate, and obscure as these from Northern Georgia. Combining now all the numerous detached and often contradictory reports which from time to time have been transmitted to the court, and the testimony of witnesses in this and other cases, we are at last able to do, though still in an imperfect and incomplete way, what should have been done at first by the proper officers of the Government, viz, separate the general proceeds into specific funds, aud trace the various captures to the funds where they respectively have gone.

1. It appears by the testimony of Captain George E. Alden, quartermaster on the staff of General Kilpatrick, given in this case, that he made the following shipments to Captain Brown, the quartermaster at Nashville, through'whom all of this cotton, without exception, came:

Bales.

June 3,1804. From Kingston.‘... 72

June 5,1864. From Kingston. 100

June 12,1864. From Adairsville.... 113

June 12,1864. From Adairsville... 15

June 15,1864. From Adairsville... 82

Total shipped direct by Captain Alden. 382

It further appears from the reports of Captain Brown that he received Georgia cotton from two other officers, so that the Account of shipments to Nashville will stand thus :

Bales.

June 1. By Captain C. M. Smith. 31

June 2. By Captain John Stewart... 50

June 10. By Captain John Stewart.-. 53

June 15. By Captain Alden... 382

Total captured, so far as known. 516

But it appears by the reports of Captain Brown that all of these shipments could not have reached him. His statement of receipts is as follows:

Bales.

June 1,1864. From Captain Smith. 31

June 2, 1864. From Captain Stewart. 50

June 10, 1864. From Captain Stewart. 53

June 13,1864. From Chattanooga, by railroad. 150

June 13,1864. From Chattanooga, by railroad. 53

•June 25,1864. From Adairsville, by railroad. 70

Total that reached Nashville.-. 407

It may be noted here that all of the cotton shipped by Captain Smith on the 1st had been derived by him from Captain ■Stewart, and by him from Captain Alden; and that a portion of that shipped by Captain Stewart had been likewise derived from Captain Alden; and that all of these captures so intermingle that none can be intelligibly distinguished, but each unites with the others to make up the number of five hundred and sixteen bales, which is the foundation of this fund.

With the four hundred and seven bales of G-eorgia cotton which Captain Brown received in'May and June, he mingled three parcels of Alabama cotton, consisting of forty-eight bales coming from Decatur, twenty-four from Huntsville, and seventy-nine from Captain Arthur Edwards, (whose report states that it was captured by a gunboat near Decatur,) amounting in all to one hundred and fifty-one bales, and making, with the four hundred and seven bales from Georgia, five hundred and fifty-eight bales.

These five hundred and fifty-eight bales CaptainBrown turned over to Treasury Agent Fuller during the months of May and June.

It next appears, from a report of the Treasury Department, that there was a sale in Cincinnati, on the 18 th July, of four hundred and sixty-three bales of Georgia cotton. There was, in fact, a sale of a much larger amount of cotton, bat the Department in making up its report has taken four hundred.and sixty-three bales as the proportion from Georgia.

By referring to the Treasury agent’s return for May and. June, we find that this amount of four hundred and sixty-three bales was undoubtedly made up as follows :

Bales.

May 30, Chattanooga. 13

June 7, Chattanooga. 40

June 13, Chattanooga. 316

June 24, Chattanooga. -24

June 28, Chattanooga. 70

Total attributed to Chattanooga. 463

But this quantity does not represent the four hundred and seven bales of Captain Brown; for, first, the twenty-four bales noted as of the 24th June are undoubtedly the twenty-four bales of Alabama cotton received by Captain Brown on the same day from Huntsville; and, second, the remainder contains more Georgia and less Alabama cotton than Captain Brown’s more specific reports show that he sent forward. The four hundred and seven bales, as we have previously seen, represent the proportionate part of the fund which is to be credited to the Georgia cotton. Instead of taking $282,062.96, the gross product of the four hundred and sixty-three bales, we must take only that proportion thereof, which will represent being $247,944.40 as the first fund.

2. On the 3d July, 1864, Captain Brown received from Captain Dunbar, quartermaster at Chattanooga, twenty bales of cotton, which, as we have previously found, were the property of one Elisha Hunt. {Runt’s Case, 40. Cls. It., p.438.) These were turned over to the Treasury agent on the same day. On the 7th July, thirteen bales were also received by Captain Brown from Chattanooga, and likewise turned over to the Treasury agent. The thirty-three bales thus made up were shipped by the Treasury agent on the 20th July, (as shown by his return of September 30, 1864,) and appear to have been sold in Cincinnati on the 15th August, bringing $20,421.77. This constitutes the second fund.

3. On the 24th August, 1864, Captain Brown received forty-two bales of cotton. They are described as.coming “from Chattanooga, per United States military railroad,” but their previous history remains undisclosed. They were turned over to the Treasury agent on the 25th August, and were shipped by him on the Louisville Bailroad on the 10 th September, and are reported by the Treasury Department as sold in Cincinnati on the 19th September — according to one statement for. $20,806.09 and according to another for $29,806.09. One of these statements is verified by the fact that $20,806.09 correctly enters into the general footing of all cottons sold; but the other is equally verified by tbe statement that the forty-two bales brought an average of $709.66. The discrepancy we cannot explain by the data given to us; and it illustrates the difficulties which this court has had to encounter in disposing of the abandoned or captured property fund. Whatever in ay bo the true amount, $20,806.09 or $29,806.09, it forms the third fund.

4. During the month of September, 1864, Captain Brown also received forty-two bales of cotton, which he turned over to the Treasury agent. There is no report from Captain Brown showing whence he received these bales, further than that he says “from various sources.” In the return of the Treasury agent, there are five bales turned over by Captain Brown noted as coming from Johnsonville and thirty-seven bales from Chattanooga, which, with the remaining bales credited in the return to Captain Brown, exactly agree with Captain Brown’s own account. These forty-two bales, then, we must infer from the reports, were mingled with three hundred and three and one-half bales of-Atlanta cotton, and the’whole (reduced in transitu to three hundred and forty-one bales) sold in Cincinnati for $140,218.44. The proportion of this which should be assigned to the fortj’-two bales is $17,070.06, which constitutes the fourth fund.

5. The next fund represents the chief part of the Atlanta cotton. The town was captured in the early part of September, and this cotton was almost immediately sent forward. The quartermaster in charge was Captain E. Hade, and his u abstract of articles transferredf during September, shows the following shipments:

Pounds.

September 30, to S. B. Brown, captain and assistant quartermaster.-. !. 116, 303

September 30, to S. B. Brown, captain and assistant quartermaster... 125, 982

Total... 242,285

On the part1 of Captain Brown, his “ abstract of articles received,” during September, is as follows:

Bales.

September 18, from Captain E. Hade, quartermaster-249

September 23, from Captain E. Hade, quartermaster.198

Total 447

But it appears, in a report of the Treasury in. Hayden's Case, apparently on the authority of an intermediate quartermaster in charge of transportation, (Captain A. W. Wetherall,) that the—

Bales.

September 18,125,983 pounds of cotton were. 273

September 23, 116,303 pounds of cotton were. 244

Total. 517

It is, therefore, a question whether Captain Brown received all or only a part of each of the two parcels shipped to him by Captain Hade.

We are inclined to think that there was an intermediate loss: First, because if the amount of 242,285 pounds was included in four hundred and forty-seven bales, it would show almost unprecedently heavy weight, viz, 542 pounds per bale on the average; while if the same number be divided by Captain Wetherall’s statement of five hundred and seventeen bales, it will give an average of four hundred and sixty pounds per bale. Second, because it appears by the testimony of some of the witnesses that cotton wras flung off the cars at Chattanooga, and the train sent back with provisions, and in these shipments and reshipments there was alwmys loss. Third, because some of the cotton shipped was destroyed by Are before being unloaded at Nashville, and immediately upon its arrival there. The amount consumed was fixed by a board of inquiry, but may very easily have been underestimated. It was found by the board to have been one hundred and forty-three and one-half bales. Whatever it was, only three hundred and three and •one-half bales actually came into Captain Brown’s custody.

These three hundred and three and one-half bales were mingled with the forty-two described in the previous fund, and •sent forward to Cincinnati. In transitu, as there stated, the whole number of three hundred and forty-five and one-half became reduced to three hundred and forty-one, which were sold on the 17th of October for $140,218.44. After deducting the amount which should be credited to the forty-two bales of the previous fund, the five hundred and seventeen which left Atlanta are represented by $123,148.38. This is the fifth fund.

6. On the 10th or 11th of July, 1864, the Treasury agent receivecl from Captain Brown thirty-three bales in addition to the previous thirty-three in like manner transferred during the1 same month. There is no report of Captain Brown before the court showing their source. They, however, are designated in his voucher as from Chattanooga. In the return of the Treasury it appears that they were marked “H,s and were claimed by one Clay Roberts. Although turned over to the Treasury agent early in July, for some unknown reason they did not go-forward from Nashville until October, and probably not until the 25th and 31st October. From that time they are not definitively traced, but on the 21st there is reported by the Treasury a sale of thirty-three bales of Georgia cotton at Cincinnati. They brought $15,090.45, which must be regarded as the sixth fund.

7. The seventh fund represents, so far as is known, nothing but the remainder of the Atlanta cotton. While the quantity which first came from Atlanta, represented by the fifth fund, is now definite and certain, and confirmed by the report of the shipping quartermaster, Captain Hade, and the receiving quartermaster, Captain Brown, this portion which we are now considering has nothing definite and certain, in the way of evidence, to rest upon, and its amount is still involved in doubt.

Captain Hade’s abstract of property received shows that during the month of September he acquired 269,177 pounds of cotton. His abstract of articles transferred shows that he turned over to Captain Brown 242,285 pounds during the same month, and, as we have before seen, this was turned over before the 23d of September. Combining this information with his ab-

stracts for October, we have—

Pounds.

September. Balance cotton not transferred. 2G, 892'

October. Abstract property received. 183,713

Total.....210,605

October. Abstract property transferred .. 130, 605-

Leaving a balance unaccounted for, of... 80,000-

What became of this balance of 80,000 pounds has never been shown. It perhaps explains in part the claims made and substantiated in CrusselVs, Silvefs, and La Planters Gases, being for cotton seized and shipped from Atlanta which did not appear in any officer’s returns. Besides this confusion, it was established in those eases that cotton came forward which had not been in Captain Hade’s possession. Finally, the amount of cotton that was received by Captain' Brown from Atlanta, in October, has never been shown by his abstracts and reports.

The only way, therefore, that the court can approximate to the quantity of cotton that entered into this fund is to go to the claimants for information,,and take the sum total of all that has been adjudged and of all that is still claimed. This, as subsequently shown, amounts to 648 bales.

Assuming it to be six hundred and forty-eight bales, we next, find that between the 18th October and the 21st November, 1861, the Treasury agent, received from Captain Brown a large quantity of cotton, much of it loose, which he appears to have sent forward between the 17th and 29th November. In his accounts of shipments, it foots up four hundred and thirty-two bales. The reports of Captain Brown would doubtless show from whom he received it, but they are not before the court. In the Treasury agent’s return for October and November, twenty bales are stated to be from Atlanta, which twenty bales we have hitherto adjudged to be the property of one William M. Lowry. (Lowry’s Gase, 4 O. 01s. B.., p. 377.) The remainder is designated as from Chattanooga and Georgia. Between Nashville and Cincinnati there appears to have been a loss of four bales, and, on the 19th December, á sale of four hundred and twenty-eightbales for $175,340.72^ which constitutes the seventh fund.

8. On the 9th December, 1864, the Treasury agent appears to have received from Captain Brown the last of the Chattanooga cotton, consisting of forty-two bales. Whence it came and when it was shipped does not appear. But the last sale of Georgia cotton reported by the Treasury Department consisted of forty-two bales, which, on the 16th January, 1865, brought $10,458.02. This we regard as the eighth fund.

■The following is a Summary of Sales :

1864, July 18th, 463 bales'broughfc, net. $282,062 96

August 15th, 33 bales brought, net. 20,421 77

• September 19th, 42 bales brought, net. 20,806 09-

1864, October 17tb, 341 bales brought, net. $140,218 44

November 21st, 33 bales brought, net. 15, 090 45

December 19th, 428 bales brought, net. 175,340 72

1865, January 16th, 42 bales brought, net. 10,458 02

Total.1,382 $664,398 45

But this summary of sales does not express correctly the funds from which judgments are to be satisfied, and includes some of the Alabama cotton. The following will be, as previously shown, a Summary of the Funds :

1st. 516 bales, (received in Nashville, June, 1864,) at $480.51 per bale... $247, 944 40

2d. 33 bales, (received in Nashville, July, 1864,) at $618.84 per bale. 20,421 77

3d. 42 bales, (received in Nashville, August, 1864,) at $495.38 per bale. 20,806 09

4th. 42 bales, (received in Nashville, September, 1864,) at $406.43 per bale.j. 17, 070 06

5th. 517 bales, (received in Nashville, September, 1864,) at $238.19 per bale.. 123,148 38

6th. 33 bales, (received in .Nashville, July, 1864,) at $457 per bale. 15,090 45

7th. 648 bales, (received in Nashville, October, 1864,) at $270.58 per bale . 175,340 72

8th. 42 bales, (received in Nashville, December, 1864,) at $249 per bale. 10,458 02

1,873 $630,279 89

It will be observed that, in this list of only eight parcels, two of them are of thirty-three bales each, and three of them of forty-two bales each. Further than this, the two thirty-three-bale parcels were received during the month of July, and two of the forty-two-bale parcels at the end of August and beginning of September. A shade of suspicion falls upon the list, and the presumption almost arises that these are but duplicates of the same capture. But the reality of the items is apparently verified in several ways: by given dates; by a receipt field by ■Oaptain'Brown for sixtv-six bales of cotton turned over in July ; by tfie fact tfiat tfie first forty-two bales of cotton were turned over in August, and tfie second enter into and make up tfie total turned over in September. In short, if any two of tfiese parcels are identical, tfiat fact will destroy the authenticity of all the reports and statements tfiat have been furnished to tfie court. As tfie evidence now stands, we must set down these similar numbers as merely extraordinary coincidences.

Turning next to judgments which, have been recovered— judgments rendered by tfie court on detached and imperfect statements of captures and sales, and in ignorance of tfie facts and circumstances which successive reports have gradually disclosed, we find them to be as follows:

FIRST FUND.

•Morris. ICofin, (4 C. Cls. B., p. 436,) 182 bales, at $603.14 .-,. $109,771 20'

SECOND FUND.

Elisha Hunt, (4 C. Cls. B., p. 438,) 20 bales, at $436. $8, 720 00

THIRD FUND.

None.

FOURTH FUND.

None.

FIFTH FUND.

Win. Markham, (2 O. Cls. B., p. 535,) 10 bales, at $3, 602.70 ... $3,602 70

•John Silvey, (2 C. Cls.B., p. 535,) 39 bales, at $360.27. 14,050 53

■J. and J. Lynch, (3 C. Cls. B., p. 392,) 108 bales, at $3 60.25. 38,909 16

L. C. Wells, (3 C. Ols. B., p. 442,) ■ 13 bales, at $360.27 . 4,683 51

J. H. Fain, (4 C. Cls. B., p. 237,) 22-/L bales) at $360.27 ..■... 8,360 00

J. A. Hayden, (4 O. Ols. B., p. 475,) 140 bales, ' ■ at $360.27 .. 50,581 60

Total...•.. 332T<v $120,187 50

SIXTH EUND.

Alee Henry, (6 0. Ols. B., p. 389,) 27 bales, at $457.25.:. $12, 345 75

SEVENTH EUND.

B. H. McCrosby, (2 0. Cls. B., p. 535,) 15 bales, at $360.27 . $5,404 05

John J. Fain, (3 O. Ols. B., p. 442,) 3 bales, at $359. 1,077 00

Wm. M. Lowrey, (4. O. Ols. B., p. 377,) 20 bales, at $457. 9,140 00

John Silvey, (4 O. Ols. B., p. 490,) 77 bales, at $359.94 . 27,715 38

A. Mims, (4 O. Ols. B., p. 521,) 2 . bales, at $359.94 .1. 719 88

T. G-. W. Crnssell, (4 O. Ols. B., p. 533,) 73 bales, at $359.94 . 26,275 62

E. La Plante, (6 O. Ols. B., p. 311,) 275 bales, at $409.67 . 112,659 25

M. K. Mallison, (not yet tried) • 183

Total. 648 182,991 18

EIGHTH EUND.

None.

It will be observed in these statements that there is a wide diversity from the now ascertained rates, in the judgments, rendered against the fifth and seventh funds. As to the fifth fund, the court, as pointed out in Lowrey’s Case, adopted the-amount indicated in the Treasury report, which failed to charge the proper fund with the loss of the cotton burned at Nashville. As to the seventh fund, the amount now stated per bale would be considerably enlarged if the claimant in Mallison’s Case-should fail to recover. In Hunt’s Case, the amount awarded falls much below that to which he was entitled.

Proceeding now to the facts in the case before us, we find that the recovery will be a charge upon the first fund, and that the only question is as to the quantity of cotton owned and captured.

The claimant seeks the proceeds of one hundred and seventy-six bales captured near Adairsville and Kingston, in May, 1864, which proceeds he alleges amount to 1107,220.96. As to one hundred and forty-three bales there is no dispute. But as to fifty-eight bales of cotton captured on the farm of one Thomas, there is no evidence to show that more than thirty-eight were the claimant’s; and as to twenty bales stored at the house of one Bell, there is no satisfactory evidence of capture, nor evidence to connect them with twenty bales purchased by the claimant from one Irby.

The one hundred and forty-three bales were captured by Major McCurdy1', Tenth Ohio Cavalry, and turned over to Captain Alden, with other cotton captured there and thereabout in May and June, 1864. Captain Alden transferred, according to his own testimony as a witness in this court, seventy-three bales to Captain John Stewart, and three hundred and eighty-two bales to Captain Brown. Captain Stewart transferred thirty-one bales to Captain O. M. Smith, who transferred them to Captain Brown; and the balance of the seventy-three bales he mingled with other cotton, and then transferred directly to Captain Brown. Thus all of the captured cotton, except the one hundred and nine bales, which we have seen previously were lost, is traced to Captain Brown, and the claimant should recover at the rate fixed for the first fund.

The judgment of the court is that the claimant recover the proceeds in the Treasury of one hundred and forty-three bales of cotton captured near Kingston and Adairsville, Georgia, being -$480.51 per bale, amounting in the aggregate to $68,712.93. 
      
      Or $29,806.09 ; see ante, p. 571.
     
      
      Or $>709.66 per bale=|29,606.09; see ante, p. 571.
     