
    KILDUFF'S CASE. James Kilduff v. The United States.
    
      On the Proofs.
    
    
      A cotton-picker in Mobile accumulates and is possessed of cotton whereof the precise amount is not shown. Se also buys seventy-two bales. There are captured and taken from him one hundred and fifty-three bales. The cotton is traced to the possession of the quartermaster at Mobile, is claimed at the time by the cotton-pieker, and is noted as so claimed on the quartermaster's invoice, but is not identified by marks or numbers.
    
    1. Where it is shown, that a cotton-picker accumulated a considerable quantity of cotton, the precise amount being unknown, and purchased seventy-two bales, and that one hundred and fifty-three bales were captured on Ms premises, it is sufficient evidence to raise tlie presumption that he owned the quantity captured.
    II. Where captured property is clearly .traced to the possession of a quartermaster charged with the care of captured property, it is immaterial that it is not traced by marks or numbers.
    
      Messrs. J. D. McPherson and P. Philips for the claimant:
    This is a claim tinder the Act March 12, 1863, for one hundred and fifty-tbree bales of cotton, captured at Mobile, Alabama, by the forces of the United States, in 1865.
    It appears from the evidence that James Kilduff, the claimant, in March, 1865, owned one hundred and fifty-three bales of cotton, stored in his “ pickery,” and that it was seized by the United States authorities, by direction of Captain Samuel Lappin, United States quartermaster, and hauled to Planter’s warehouse, occupied by N. W. Perry, and there shipped on. the ship E. L. Thayer to General Yan Yliet, New York.
    This cotton the claimant collected during five years while he was doing business as a cotton-picker. It was bought as damaged cottou and picked over and put in merchantable order.
    Nelson W. Perry testifies that on the capture of the city, in April, 1865, all the cotton in the city was taken by the United States authorities. Captain Lappin, assistant quartermaster, superintended the disposition of the cotton. In May, 1865, a lot of one hundred and fifty-three bales was brought from claimant’s pickery to witness’s warehouse, where, under Lappin’s supervision, it was classed, marked, and prepared for shipment. Witness recognizes the invoice exhibited and annexed as the invoice of said cotton, shipped per ship E. L. Thayer to General Yan Yliet, as Kilduff’s cotton. It corresponds with the record in witness’ possession.
    * The War Department certifies the signature of Captain Lap-pin to.the original invoice.
    Captain Samuel Lappin, assistant quartermaster, reports three thousand two hundred and twenty-two bales of cotton captured at Mobile, and shipped to General Yan Yliet, in New York, May 13 to May 30,1865. Yán Yliet was ordered to turn it over to Draper.
    Kobinson proves the receipt-of the three thousand two hundred and twenty-two bales by Draper, among what was the cargo of the E. L. Thayer.
    
      The same witness shows that of the three thousand two hundred and twenty-two bales received at New York, three thousand two hundred and twenty-one sold for $452,019 33, in coin, and the expenses were $22,522 61 in currency. The rate of currency to coin is fixed by the Treasury sales of coin: thus $7,902,264 11 in currency for $5,652,286 09 in coin, makes the rate, viz: 139.8.
    At this rate, the coin, $452,019 33, amounted to $631,923 02 And deduct expenses. 22,522 61
    $609,400 41
    Then 3,221 : 609,400 41 : : 153 : 28,146 96.
    The claimant was an old man, over the age of conscription; a quiet, unlettered man, who was doing well enough under the old government, and desired no change. He himself was examined and swore that he never gave any aid in any way to the rebellion, and a number of witnesses testifies to the same effect. So far as he ever committed himself to any outward act or expression, it was in favor of the government of the United States.
    The evidence as to the claimant’s loyalty is brief, and as the court will, according to their practice, carefully examine it, we deem any abstract of it superfluous.
    We submit that he is entitled to judgment for $28,*146 96.
    
      Mr. Joseph A. Ware (with whom was the Assistant Attorney General) for the defendants:
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover the net proceeds’ of one * hundred and fifty-three bales of cotton captured at Mobile, amounting, it is alleged, to $33,930.

The only points raised by the counsel for the defendants are: First, that the claimant does not prove his title to the number of bales claimed in the petition; second, that the cotton is not traced by marks or numbers to the custody of any officer of the United States.

As to the first point we find, as matter of fact, that the claimant at the time of the capture of Mobile had accumulated, in bis occupation of cotton-picker, and held in Ms possession, a considerable amount of cotton, tbougb tbe precise amount is not shown. We also find that he had acquired by purchase seventy-two bales. We also find that there was taken from his possession one hundred and fifty-three bales, and we think that this satisfactorily establishes the quantity which he owned.

'As to the second point, the cotton is clearly traced to the possession of the United States quartermaster charged with the care and custody of captured property in Mobile. It was claimed at the time by the claimant, and this is so noted on the quartermaster’s invoice. Therefore it is immaterial that the tracing is not by marks or numbers.

The net proceeds in the Treasury are shown to be $183 42 per bale, and the claimant’s loyalty is deemed satisfactorily established by a majority of the court.

The judgment of the court is, that the claimant recover the sum of $28,063 26.

Drake, Oh. J., and Milligan, J., dissented on the fact of the claimant’s loyalty being satisfactorily established.  