
    AKE HENRY’S CASE. Ake Henry v. The United States.
    
      On the Proofs.
    
    
      Twenty-seven hales of cotton, marked with the owner’s initials, “ A. H.,” are captured at Dalton. The commanding officer there orders the quartermaster in charge to forward the’ cotton to Chattanooga. It is not shown that the order ■was executed, nor when the cotton left Dalton; hut it appears hg the Treasury returns that fifty-eight hales of cotton were received from nnlcnoion sources, thirty-three of which came from Chattanooga, and were marked “ H.” The proceeds of these thirty-three hales are in the Treasury.
    
    I. The presumption is that captured property was duly forwarded Toy the quartermaster haying- it in charge, pursuant to the express orders of his commanding officer, and was transmitted l>y other military officers, who might have received it, in pursuance of the duty imposed upon them by-law, until it came to the possession of the agents of the Treasury. After the loyal owner of captured ju-operty has lost possession and control through the seizure of the defendants’ officers charged by law with its care and custody, he cannot be compelled to trace it specifically to the Treasury.
    III. When the officers of the Treasury have neglected to keep piroper accounts of a loyal claimant’s captured property, and furnish only vague explanations as to the amount of net proceeds in the Treasury, the government is bound thereby, and the claimant should recover.
    
      Mr. Thomas Wilson for the claimant:
    This is a claim for the recovery of the proceeds of twenty-seven bales of cotton, weighing ten thousand pounds, owned by the plaintiff, and captured at Dalton, Georgia, in June, 1864, by Col. Laibold, of the Second Missouri Infantry.
    The plaintiff resided during the rebellion, and for many years before, at Cleveland,'Bradley County, Tennessee.
    Various of his neighbors testify to his continuous loyalty to the United States.
    It is proved beyond controversy that an officer of the United States army, holding as high rank as that of colonel, seized, captured, and took possession of this cotton, and that he ordered it forwarded to Chattanooga, for the purpose of saving it from the expected rebel raid, and that it might be saved to the United States, as was other captured property.
    The. sixth section of the Act March, 12,1863, makes it the duty of all officers of the army to forward all property of this kind to the Treasury agents, and provides for punishment by reduction to the ranks for neglect of this duty. I insist, as a legal proposition, that the presumption is that a public officer has performed the duty enjoined upon him by law.
    1 Greenleaf’s Evid., § 40; U. 8. v. Landridge, 12 Wheat., 70; Lea v. Folic Go. Gopper Go., 21 How., 497; Hartwell v. Boot, 19 Johns.', 346; Jackson v. Shafer, 11 Johns., 517; Poivell v. Melbourn, 3 Wils., 360, 366; Phil. Evid., 151; 3 East., 192; 10 Id., 216.
    Until the contrary is shown, the court must presume that this cotton was forwarded by the officer seizing or receiving it, as was required by law.
    
      John Spain’s Case, 5 O. Gis. B.
    The report o'f the Treasury Department, made in the case of John H. Fain, No. 2946, shows the receipt by Charles A. Fuller, assistant special agent Treasury Department at Nashville, on July 11, of 33 bales from Chattanooga, marked “ H.” An examination of the original, will show the whole 33 were not marked “ H.” I claim 27 of these 33 bales to have been the property of the plaintiff. These 33 bales were forwarded to W. P. Mellen, Treasury agent at Cincinnati, Ohio, October 25, and were sold in one lot by Mr. Mellen, November 21, for $15,090 45.
    I prove this to be so by the figures in return in case of Fain. The shipments on “ Eeport No. 1,” May 1 to June 30, were 463 bales. They were sold by Mellen, July 18,1864.-
    “Eeport No. 2,” July 1 to September 30, 416 bales. These were sbld in lots of 33, 42, and 341 bales, August 15, September 19, and October 17. (P. Hunt’s Case, 4 C. Ols. Bep., 428.)
    “Eeport No. 3,” October 1 to November 30, 461 bales. Sold in lots of 33, November 21, and 428, December 19.
    “Eeport No. 4,” December 1 to 31, 42 bales. Sold January 16.
    The 33 bales shipped October 25, and 27 which I have claimed, was the'first shipment in the month; the next shipment following was not until November 17, and by the return it appears that the shipments subsequent to this 33 bales made the number of 432, which, allowing for rebaling, shrinkage, &c.,. &c., makes, in Cincinnati, at the sale of December 19, the number of 428, a loss of only four bales; and so I claim 27 bales out of these 33. The amount net of the 33-bales was $15,090 45, or an average of $457 25 per bale, or $12,355 75 for 27 bales.
    In the case of E. Hunt' the receipt of Mr. Fuller is shown for 66 bales, July 10; 33 of these were sent forward July 20, and sold August 15, by Mr. Mellen, for $20,421 77.
    The other 33 were delivered to Mr. Fuller July 11, (report in Fain’s case,) by him. sent forward October 25, and sold by Mellen November 21, as above set forth.
    Jir. Alexander Johnston for the defendants.
   Nott, J.,

delivered the opinion of the court:

This is an action to recover the net proceeds of ten thousand pounds of cotton captured at Dalton, Georgia, and alleged to be $15,000.

Two questions of importance are raised by this, which more or less indirectly have been involved in other cases, but which have never been so plainly and directly presented before. The first relates to the legal presumptions that arise, under the Abandoned or captured property act, from the seizure of a party’s property by a military officer, as to the final disposition thereof. The second relates to the obligations of the defendants to account for the proceeds of property so seized.

The court is not free from doubt upon the subject, but without discussion will reduce the decision to its conclusions' upon these facts:

I. The claimant resided at and near Dalton, Georgia. He never gave aid or comfort to the rebellion, and consistently adhered to the United States.

II. Martin Menko, from whom the claimant bought the cotton hereafter described, during a part of the rebellion resided in Ducktown, Georgia. In January, 1864, he removed to Baltimore, Maryland. He never gave aid or comfort to the rebellion, and consistently adhered to the United States.

III. The claimant owned twenty-seven bales of cotton, marked with his initials, A. H., and in his possession, which were seized by the military authorities at Dalton on the 20th June, 1864.

IY. The- commanding officer at Dalton, Colonel Laibold, ordered the quartermaster having charge of such cotton to forward it to Chattanooga. It is not shown by the claimant that this order was ever executed, nor when the cotton left Dalton, nor wbo was the quartermaster in charge; neither are the reports or property returns of any quartermaster'at Dalton produced by either party. But the following facts appear by the returns of the Treasury Department, to wit:

During July, 1864, Captain Brown, the quartermaster in charge of captured property in Nashville, “received from unknown sources ” 58 bales of cotton. On the 11th July, 1864, Charles A. Fuller, Treasury agent at Nashville, received of Captain Brown 33 bales of cotton, reported as coming irom Chattanooga, and as marked <(.H.” These 33 bales of cotton were transmitted by Fuller to William P. Mellen, Treasury agent at Cincinnati, and sold November 21, 1864. The net proceeds were $457 25 per bale, amounting for 27 bales to $12,345 75, which proceeds are now in the Treasury.

And upon the foregoing findings of fact, this court, as a conclusion of law, decides:

1. The legal presumption is that the cotton of the claimant was duly forwarded to Chattanooga by the quartermaster at Dalton, pursuant to the orders of his commanding officer, and was transmitted by other military officers who might have received it, in pursuance of the duty imposed upon them by law, until it came to the possession of the Treasury agents. The claimant should not be compelled to trace the cotton specifically after he lost possession and control of it through the seizure of the defendants’ officers, charged by law with its care and custody.

2. The defendants, having neglected to keep proper accounts of the claimant’s cotton, and having furnished no further explanations as to the amount of the proceeds in the Treasury than that set forth in the foregoing findings, are bound thereby, and the claimant should recover the net proceeds in the Treasury of the twenty-seven bales of cotton referred to in the findings; amounting to the sum of $12,345 75.  