
    Henry Peychaud, syndic, &c., v. The United States.
    
      On the Proofs.
    
    
      The suit is drought to recover for anumlidr of distinct parcels of cotton aggregating 1,846 dales; hut the defendants’ counsel, on the former trial, contest only 5 parcels, aggregating 113 dales. The court rejects all that the government counsel objects to, and other parcels not objected to, rendering judgment for theproceeds of only 1,542 dales, amounting to $296,064. No findings of fact are requested by either party, no appeal is taken, and the judgment is paid at the Treasury. Afterpayment a motion for a new trial is made by the law officers of the government and granted. On this, the second trial, no one appears for the claimant.
    
    I.Where a new trial has heen granted on the defendant's motion, the court will proceed with the second trial, and find the facts of fraud and conspiracy established by the defendant’s evidence, though the original judgment in the case may have been paid, and the claimant neglects to offer evidence and fails to apipear.
    II.Where only one party appears and proceeds with tho trial, and the witnesses have not been subjected to cross-examination, the court will scrutinize the evidence with unusual care.
    III. The facts and circumstances constituting the fraudulent transaction in this case, sot forth by the court.
    IV. The form of judgment under Rev. Stat., § 1086, where claimants attempt to practice fraud against the government in the proof, statement, establishment, or allowance of their claim prescribed.
    
      The Reporters' statement of tbe case:
    The following is the history of this case and the facts now established by the defendants’ evidence, as set forth and found by the court:
    HISTORY OE THE CASE.
    The petition was filed August 19,1868, in the name of the firm of Bellocque, Noblom & Co. On the 19th July, 1869, the defendants pleaded a general traverse, the statute of limitations and the alienage of the claimants. On the 14th March, 1870, it was suggested of record that'the claimants were insolvent, and that Henry Peychaud and George A. Freret were their syndics. In January, 1873, a power of attorney in favor of Mr. Bartley and Mr. Eustis, from A. P. Nobloin, a member- of said firm, was filed, and motions were made to admit the attorneys of fact as attorneys of record, and for leave to file an intervening petition. Both motions were denied on the 4th of June, 1873, for the reasons set forth in the opinion of the court, reported in 8 O. Gis. B.., 493.
    On the 19th May, 1873, Mr. Peychaud and Mr. Freret, as syn-dics of Bellocque, Noblom & Co., were substituted as claimants in their places. On the 9th of December, 1873, the death of Freret was suggested. Leave was given several times to file amended petitions, and on the 23d March, 1874, the present . amended petition was filed.
    In the original petition it was averred that Bellocque, Nob-lom & Oo. had advanced divers sums of money to planters upon the security of incoming crops of cotton, which cotton, according to the laws of Louisiana, they had a right to reduce to possession and to sell in satisfaction of the indebtedness; and that cotton was taken on the plantations by the forces of the United States and sold, and the proceeds paid into the Treasury. The cotton whose proceeds were claimed was set forth in a tabulated statement. There were 36 parcels, amounting to 1,851 bales. The statement purported to show the number of bales in each parcel, the plantation from which it was taken, the persons to whom advances were .made, the amount of the advances, the parishes in which the plantations were situated, the date of each seizure, and the officer by whom the seizure was made. The aggregate amount of the proceeds was alleged to be $600,000, and the aggregate of theadvances to be$121,763.97. Theremedy sought was the recovery of the whole proceeds, or, if the court should be of opinion that the claimants were not entitled to all the proceeds, in that they asked for their advances and interest.
    The same tabulated statement is incorporated into the petition as it now stands; but it is now alleged that the partnership was the owner of the cotton by purchase, and the remedy asked is the payment of the whole proceeds (which are now laid at $400,000) to the claimant. • ' ■
    On the 22d April, 1874, the case came to a hearing, and was submitted by the counsel for the claimant (after disclaiming certain items in the petition) upon tlie following printed argu•ment:
    IN THE U. S. COURT OE CLAIMS, DECEMBER TERM, 1873.
    Odile Derbbs Bellocq, August P. Noblom, j and Pierre Boy, by Henry Peychaud, as- | SIGNED IN BANKRUPTCY, ¡>No. 3497. V. | The United States. \
    
    
      Brief for claimants.
    
    This action is brought for tlie recovery of 1,851 bales of cotton taken by officers of the United States Army, from the possession of the claimants, and sent to an United States quartermaster at New Orleans, by whom it was sold, in part, and a portion shipped to New York and sold by the agent of the United States Treasury Department, and proceeds paid into the Treasury of the United States.
    OE TITLE.
    By the evidence of Jules Noblom (page 21) it is shown that he was employed in the house of Bellocq, Noblom & Go.; that said firm was in business in New Orleans as factors and commission merchants immediately preceding the outbreak of the rebellion, and testifies to advances made on the crops of cotton belonging to Baymond Deshautel, parish of Saint Landry, La. (35 bales of this cotton is receipted for by Captain Pope, see page 42, and tabular statement, to Jean Berand; 28 bales are receipted for by Lieutenant Bailey, see page 93; Honoré Dejean, 68 bales, receipt of F. G-. Pope, captain, &c., pdge 48).
    This witness also testifies to the purchases of cotton, as set forth in account B (page 32), made in 1861 and 1862, 776 bales of cotton. (See receipts, pages 40, 41, 50-’l, 55, 56, and 62.)
    In all, this witness proves 970 bales of cotton, as purchased by claimants, that are receipted for by the oflicers of the United States Army, in April and May, 1863.
    Pierre Laborie (page 23) testifies, to his knowledge, that Theodore Yalade was purchasing cottons for Bellocq, Noblom & Go., and that he sold him 24 bales; this witness also knows of Val-ade’s purchase of Francois Poiret of cotton for the claimants; also of Pierre Piter; also knows of the large purchase by Mr. Boy of the Peteteu & Go. sales — Poiret cotton; 62 bales are receipted for by Captain Pope, page 45.
    Theodore Yalade, agent for purchasing of cotton for the claimants, testifies on page 25, that he purchased from different vendors for the claimants, 396 bales in 1861 and 1862, and designates the different vendors, and the amount purchased from each: Pierre Piter, 31 bales; It. A. Nezatt, 20 bales, receipt of officer, page 40; Francois Poiret, 62 bales; Pierre Labórie, 24 bales, receipt, page 49; Sebastian Dejean, 14 bales, receipt, page 49; F. A. Devillier, 7 bales, receipt, page 47; David Eoos, 4 bales, page 45; Yalade, 26 bales, receipt, page 49; A. O. De-villier, 6 bales, receipt on page 46; L. O. Devillier, 79 bales, receipt on page 44; O. Adams, 93 bales, receipt on page 62; D. Dejean, 30 bales (no receipt).
    
    “This witness confirms the purchase of over 200 bales of E. Peteteu & Co.; and also that of Dr. Magruder; saw the purchase of the cotton from S. C. McPherson, 45 bales; and on page 26 testifies to the indebtedness of Benoit Ney, and the transfer of his cotton to claimants, 73 bales. (See receipt of Pope, page 44); also of the indebtedness of M. Oartillo, from whom Mr. Eoy, one of the claimants, took 135 bales in part payment (see receipt of Pope, page 45); also that he took from JEL Dejean cotton for his indebtedness, 68 bales (see receipt of Captain Pope, page 48); the same as to Elisha Andrews, 24 bales (see receipt of Captain Pope, page 43), and O. Eomero, 7 bales (no receipt).
    “E. Fennimore Poiret (page 28) confirms the sale of the Francois Poiret cotton to claimants; Louis Gregore (page 29) also confirms the sale of Poiret’s cotton to claimants’ agent; also that of C. M. Lucallus’ cotton, 18 bales (see Captain Pope’s receipt, page 42), and of several other lots already mentioned in officers’ receipts.
    “The testimony of Captain Bunker provesthe taking (page 35) of 79 bales of claimants’ cotton from Blaze Mott. (See receipt, page 52.) That of Oapt. F. Pope proves the taking of the following lots of cotton belonging to the claimants, which are not otherwise proven: Of Ben Sunder, 4 bales, receipt, page 41; J. H. Morrison, 45 bales, receipt, page 41; Deshautels, 35 bales, receipt, page42; Jos. Penada (Tesada?), 20 bales, receipt, page 43; J. Eyon, 10 bales, receipt, page 43; M. Duffy, 15 bales, receipt, page 44; David Eoos, 9 bales, receipt, page 46; Prescott’s 22 bales, receipt, page 47; M. Yernon, 20 bales, receipt, page 47; A. E. Hawkins, 4 bales, receipt, page 51; O. D. Hatch, 8 bales, receipt, page 51; Col. George Merrill, page 39, proves the taking from C. Wolf of 40 bales, receipt, page 52.
    “The proof of the genuineness of the receipts of Lieutenant Bromley by Kill born, page 53, and Penniman, page 54, shows the taking of claimants’ cotton from the different vouchers known as the Peteteu cotton receipt, pages 55 and 56.
    “ The certificate of Third Auditor to the receipts of Captain Cornwell, Oapt. Bradley Dean, and Lieut. L. O. Bailey, page 93, show the genuineness of signature to the receipts’ for 25 bales to J. B. Berand; 30 bales from A. Desmare, and of the 93 bales taken’by Lieut. Bradley Dean; the latter seizure is testified to by Lieutenant Dean, page 61.
    , “The foregoing shows that by in'oof direct and the receipts of United States officers tbe aggregate amount of 1,846 bales of cotton were taken from the possession of claimants during the months of April and May, 1863.
    what was done with the cotton!
    “Theodore Yalade, page 26, says, “all this cotton that I bought for this firm, and that Mr. Roy bought, was taken by the Federal Army. Captain Pope took the cotton that was on my place; Lieutenant Dean and Captain Boyd took some.. They were'officers of the United States Army. They gave me receipts for three hundred and ninety-six bales,” and on cross-examination, same page, “I gave those receipts to the firm of Bellocq, Noblom & Co.”
    “ Captain Bunker, page 35, states that he was in the military service of the United States in the months of April and May," 1863, and that he seized cotton belonging to the claimants, and verifies his receipts for 79 bales, and says the cotton was turned over to the military authorities at Barre’s Landing to be shipped to New Orleans.
    “ Oapt. F. G-. Pope, page 36, states his detail for the purpose of seizing all cotton in the vicinity of Barre’s Landing, Louisiana, in the months of April and May, 1863, and of his issuing the receipts to claimants’ representative for the cotton seized as set forth on pages from 40 to 50 of the record, which receipts fully set forth the shipment of the cotton to the quartermaster at New Orleans; and on page 37, that this form of receipt was adopted on the order of the commander of the department after the cotton had been received in New Orleans.
    “ This witness also identifies the handwriting of F. W. Perkins, captain and A. A. Q. M.; also that of Capt. A. R. Long attached to other receipts, as shown on pages 50 and 51 of the record.
    “ Captain Merrill, page 40, testifies to having delivered the cotton he seized to Colonel Chandler, at Brashear City, and on page 52 is found the receipt, which he verifies.
    “ The receipts of the cottons collected at Barre’s Landing and Brashear City, La., are fully acknowledged and set forth in the report of the chief quartermaster of the Department of the Gulf, Col. S. B. Holabird, in Executive Document No. 97, to House of Representatives, 39th Congress, 2d session, page 30.
    “ The entire seizures of cottons in the Opelousas country reached New Orleans and was sold by the quartermaster there or shipped by him to New York, where it was sold by an agent of the Treasury, and the proceeds in either case paid into the Treasury of the United States to the credit of the captured and abandoned property fund.
    “ The value of the cottons alluded to have been fully set forth to the court in the cases of Henry Ealer, Ami. 4, N. & H., page 372 ; Laperre and Eerfe, vol. 6, N. & H., page 363; G. H. Martin, vol. 7, N. H., page 450: and that of Jules Penodin, vol. 8, N. & H., page 556.
    “ A call was made upon the Secretary of the Treasury for information relative to the seizure and disposition of the claimants’ cotton, as well as the value of same, as shown by the-sequestration accounts of Gol. S. B. Holabird, chief quartermaster. In response thereto, the return of the Treasury shows, by schedule and receipts, the seizure and disposition of some 2,120 bales of cotton belonging to claimants, by which it appears that the claimants were'allowed by the order of the commander of the Department of the Gulf one-half of the net proceeds of the sale of the same. (See order, page 74, record.) This lot of cotton does not embrace the lot for the proceeds of which this- action is brought. An examination of the schedule and the voucher receipts, now held by the department, shows that the lot of 2,120 bales was seized, generally, by different officers and from different parties than those embraced in the petition of the claimants. The only receipts resembling those-filed in this case being those of Given to A. Nezat, 20 bales, page 79; David Boos, 4 bales and 9 bales, page 81; all others are different and not contained in those now held and in possession of the claimants. ■
    “ In confirmation of this fact it will be observed that the payment of the one-half of the .value of the 2,120 bales was made, as by the voucher, page 87, on the 20th of October, 1863 ; and by the other vouchers on pages 88 and 89, on the 14th of January, 1864. Whereas the receipts now held by claimants were signed in February, 1864, by the order of the commander of the department. (See Captain Pope’s evidence, pages 37 and 38.) The original receipts taken up by Captain Pope, he states, were lost either in the Bed Biver campaign in May, 1864, or in the Shenandoah, in October, 1864. (See pages 37, 38.)
    An examination of the testimony and comparison of dates,, sworn to, with those of vouchers filed (see Exhibit B, p. 32) by same witnesses as to those exhibits, led to the conclusion that an error of the year had crept into the testimony, as also many errors in names of vendors by reason of the commissioners not understanding aright, or the attention of the witnesses not having been called to the error; therefore an order of this court was obtained to recall the witnesses to correct the error ; their evidence explanatory of the names and dates is to be found on pages 66, 69, and 70. The only witness that could not be reached was Jules Noblom; but inasmuch as he testifies to the accuracy of Exhibit B, page 32, shows these purchases to have been made in 1861 and 1862, it is but fair to suppose he made error in speaking of transactions of his own occurring in 1862 in his previous testimony.
    “The claimants therefore pray judgment of the court for the-value of 1,846 bales of this cotton, which the proof shows was taken from them, amounting at the price referred to, $192 per bale, to the aggregate sum of $354,432.”
    An additional printed argument was also filed by ahother counsel on behalf of the claimant, but it referred to the facts, and statement of the case in the foregoing brief and set forth no additional facts.
    The counsel for the government was heard, no brief being' filed by him.
    On .the 18th May, 1874, the following opinion of the court was delivered and judgment rendered accordingly:
    “Nott, J., delivered the opinion of the court:
    In this case all the questions are substantially questions of evidence or questions of fact. As to the former the court is of the opinion that certain- official receipts offered in evidence by the claimant are admissible. As to the latter the court finds that a number of items are not satisfactorily proven.
    
      u The petition in this case alleges the capture of one thousand eight hundred and fifty-one bales of cotton, which it then proceeds to designate by a tabulated statement wherein is set forth the name of the plantation on which the cotton was taken, the .name of the person from whom the claimants derived title, the date of seizure and the name of the seizing officer. In the evidence several items appear which are not set forth in the tabulated statement. The court is of the opinion that the claimants’- proofs must be restricted to their petition and that the petition is limited by the tabulated statement which sets forth their sources of title.
    
      u Of the items which are not sufficiently proven are the following :
    
      u í Thirty-one bales, Pierre Petre.’ As to this, the capture is not shown. The evidence relied upon is the testimony of Mallard. He states it to be a portion of three hundred and ninety-six bales for which the receipts of the seizing officer were given to him. The receipt as to this item is not produced, and not being produced gives rise to the presumption that the'cotton if captured was a part of that which was paid for by Colonel Holabird.
    “ ‘ Seven bales, C. Homero.’ The same testimony is relied upon, but the wjásness speaks chiefly as to title, and manifestly had no knowledge of the seizure except from the receipts of the officers and as to the cotton taken from his own plantation.
    
      “1 Thirty-seven bales, J. Berin.’ This is like the preceding item.
    
      u 1 Thirty bales, D. Dejean.’ This is in the same plight as the first item referred to.
    
      “ ‘Bight bales, B. W. Heath.” The voucher relied upon to sustain this item is in the name of C. A. Hatch, and there is nothing to indicate that O. A. Hatch is identical with E. W. Heath.
    
      ‘11 Two hundred and five bales, E. Peteten & Co.’ The vouchers relied upon here make out only sixty bales. As to the remainder there is apparently no connection between the parties in whose names the vouchers are and this party from whom title is derived.
    “ Certain other items are also disclaimed or not pressed by the claimants.
    “In rendering judgment in this case the court cannot refrain from expressing a doubt as to whether the cotton in suit is indeed distinct from the cotton settled for by Colonel Holabird. All of the cotton captured in the Teche country amounted to only six thousand bales or thereabout (Queyrouze Case, 7 C. Cls. E., p. 405), and it seems most iinprobable that this firm of Bellocque, Noblom & Co. could have been the owners or factors of more than two-thirds of it. But the law officers of the government, who are responsible for the defense and who have access to Colonel Holabird’s accounts, which the court has not, are satisfied upon this point; and the court, therefore, has no reason for interposing to a recovery doubts of its own.
    “The judgment of the court is that the claimants recover the net proceeds of one thousand five hundred and forty-two bales of cotton, at $192 per bale, amounting in the aggregate to $296,064.”.
    Notwithstanding the suggestive doubt with which that opinion closed, neither the law nor .Treasury officers of the government, so far as the records of this court show, suggested any steps for a review. On the 28th of May, 1874, the attorney of record took a transcript of the judgment, and in due time it was paid.
    On the 17th May, 1876, the United States moved for a new trial on the ground that fraud, wrong, and injustice had been done to the United States. The motion was supported by affidavits. A motion was made to dismiss this, which was overruled, the Chief Justice giving the opinion of the court. (See 13 C. Cls. R., 195-198.) On the 5th of March, 1881, the defendants filed a special plea, under section 1086 of the Bevised Statutes, praying judgment that the claim be forfeited to the United States.. On the 9th of March it was ordered that the case be tried on the 10th day of May, 1881, and that a copy of the order be served on the claimant. The order was duly served on the claimant and proof of service returned to court. On the 10th of May current, the Attorney-General appeared and moved the case for trial. The claimant was called, that he might appear and prosecute his action, but made no answer. No counsel or attorney appeared for him; but the case was argued and submitted by the representatives of the government alone.
    FINDING'S OE'FACT.
    I. Prior to March, 1862, Mas Levy had bought 207 bales of cotton stored on the plantations of S. H. Morrison, Michael Vernon, Dr. Lee, and Dr. Talbot, in the parish of Avoyelles, Louisiana. At the same time he was a member of the firm of Isaac Levy & Co., which had bought 24 bales of cotton in that vicinity, on the plantations of Ben Hunders and Texada.
    In March, 1862, Max Levy went to New Orleans on business, but owing to the capture of that city was unable to return to his home in Saint Landry Parish until September, 1862. At that time the firm of Isaac Levy & Co. was indebted to Bel-locque, Noblom & Co. in the sum of $7,000 or $8,000. Ma,x Levy individually was not indebted to them at all.
    In August, 1862, these 281 bales of cotton were within the Confederate lines, as were also the residence of Max Levy and the place of business of Isaac Levy & Co. Two other members of the firm were at Alexandria, La., within the Confederate lines, and the other in France. During that month Max Levy went to the office of Bellocque, Noblom & Co. and transferred to them the 231 bales of 'cotton as collateral for the amount the firm of Isaac Levy & Co. owed them.
    In September, 1862, Max Levy returned to Saint Landry Parish, where he remained until the latter part of November, 1862. Then he went to Matamoros, Mexico, where he remained until May, 1866. Then he went to New Orleans. In the mean time Bellocque, Noblom & Co. had given Isaac Levy & Co. no credit for this cotton, and in May, 1866, Max Levy paid them $7,600 in full of the account against the firm.
    It does not appear that Bellocque, Noblom & Co. ever took possession of said cotton, or exercised over it any acts of., ownership.
    Max Levy’s residence continued at Saint Landry until No-* vember, 1862, when he started for Mexico.
    In April and May, 1863, the 231 bales above mentioned were seized by the military authorities of the United States, shipped to New Orleans, and sold.
    II. To the remainder of the 1,851 bales, or any part thereof,, set forth in the petition, claimants have not proved ownership, right, or title to the satisfaction of the court. It does not appear that prior to the alleged seizure of the cotton mentioned in the petition, claimants had reduced any of it to possession.
    III. A. P. Noblom, of the firm of Bellocque, Noblom & Co., has already received from Colonel Holabird the proceeds of the following cotton mentioned in the petition: D. Eoos, 4 bales; Ales. Nezat, 20 bales: Laborie, 24 bales; Yalade, 26 bales.
    IY. This court has entered judgment for 135 bales mentioned in said petition in favor of Michael Castillo, and for 45 bales in favor of the administrator of S. C. McPherson.
    Y. The court finds specifically, under the provisions of section 1086 of the Eevised Statutes, that August P. Noblom, a member of the said firm of Bellocque, Noblom & Co., and the said firm through him, attempted to, and did in fact, practice a fraud against the United States in the statement of this claim in the original and amended petitions; and that Henry Pey-chaud, syndic of the said firm, attempted to, and did in fact, practice a fraud against the.United - States in the statement of this claim in the amended petition; and also in the proof of said claims or a part thereof; and also in the establishment of said claims, or a it art thereof; and also in the allowance of said claims, or a part thereof.
    
      Mr. John 8. Blair appeared for the defendants. No counsel appeared for the claimants.
   Nott, J.,

delivered the opinion of the court:

A statement of the facts which make the record history of this case is i>refixed to this opinion. To some of them we now-advert.

The case came commended to the court by the apparent confidence of the counsel for the government. It was not entitled to go upon the trial docket of April, 1874, the testimony in chief had not closed till February 7; the case had not been put upon the notice book; the claimants’ brief was not yet filed. As the rales of the court then stood, any of these things constituted an objection to a hearing in April, and would have operated, if not waived, to throw the case over the term. (See Rules XI, XXX, C. Cls. Digest.) But on the 3d March leave was granted, with the assent of the government, both to amend the petition and to put the case upon the April docket. On the 23d of March an amended petition was filed, and on the 22d April the case came to trial.

The rules of this court then provided as follows : •

“In cases where a finding of facts by the court is required by the rule of the Supreme Court, either party desiring the same to be made shall, before or at the time of the submission of the cause, file a request that the court make such a finding.
“If neither party file such a request it will be considered that a finding is not desired, and none will be made.” (Rule XXXYII, Digest.)

No request for a finding of facts was filed by either party, and the court was thereby given to understand that the case involved no question of law which could be the subject of review in the Supreme Court. Pursuant to the settled practice of the court in such cases no findings of fact were made.

When the case came to a hearing there appeared to be involved the title to and capture of a great number of distinct-parcels of cotton, which, with the names of the parties from whom purchased and of the Army officers who seized the same,, respectively, were set forth in a tabulated statement in the nature of a bill of particulars forming a part of the petition. Three of these parcels the counsel for the claimants informed the court he should not press, deeming the evidence concerning them insufficient to warrant him in asking for a recovery, or that they had been paid for. These three were:

Cotton from plantation of A. Nezat_,. 20 bales.
Cotton from plantation of Valmont Stelly. 27 bales.
Cotton from plantation of D. Ross. 4 bales.
They aggregated.. 51 bales.

And left as the subject of claim thirty-sis parcels or causes of action, containing in the aggregate precisely 1,800 bales. But the evidence produced extended to some parcels not contained in the tabulated statement, and the claimants’ brief asked judgment for the proceeds of 1,846 bales, aggregating $354,432.

On tbe part of tbe claimants tbe evidence was, as to most of tbe' items, twofold, consisting first of testimony of witnesses, and secondly of vouchers or receipts of officers wbo captured tbe cotton. Twenty-tbree of these receipts were given by one officer. They represented 94=9 bales of cotton, and were in tbe following form:

“Exhibit 1 (Pope). — F. A., U. S. com’r, Sept. 30, 1872.
“ I hereby certify that, in accordance with orders from tbe commanding general Department of tbe Gulf, I have taken for military purposes, from the plantation of Dr. Lee, of tbe parish of Avoyáles, tbe following property, to wit: Forty-two (42) bales of cotton, the property of H. P. Noblom, a subject of Belgium, such cotton having been seized by order of Col. T. E. Chickering, com’d’g 41st Mass. Inf. Eeg’t Vol’s, com’d’t of post at Opelousas, and Lieut. Col. Sargent, provost-marshal, by Capt. F. G. Pope, and delivered to the reg. Q. M?; thence shipped to tbe U. S. Q. M. at New Orleans, Louisiana, before the evacuation of our troops at Opelousas in tbe spring of 1863.
“F. G. POPE,
Capt. Oo. F, 41 Beg’t Mass. Yol.
■“April, 1863.”

Concerning these receipts this officer testified as follows, and be also testified to tbe authenticity of a number of similar receipts purporting to be in tbe name of other officers:

“Interrogatory 6. Please look at the receipts now banded you, and made exhibits in this case, numbered on tbe back in red ink from 1 to 28 (with tbe exclusion of numbers 9 and 19). •-■State if those signatures are your genuine signatures, and are of those alluded to in 3'our previous answer. (Papers banded to tbe witness, and put into tbe case, and marked ‘ Exhibits 1 to 26 inclusive,’ with tbe initials of the commissioner and date of hearing.)
“Answer. I have examined all tbe papers banded me, and my signature upon all of them is genuine, and they show correctly tbe amount of cotton for which they were given. I gave receipts to tbe persons on tbe plantations in about this form: 11 have this day taken from so and so, so many bales of cotton, belonging to A. P. Noblom & Company.’ In 1864, while I was sick in New Orleans, those receipts were brought to me, with these receipts which now lie before me. Those receipts which I had given before, not being worded in the proper form, they wished me to sign these receipts, and give them in exchange for the others, and I did so; and these are the receipts ^rhich I gave in exchange for those which I gave on the plantations.
“ Interrogatory 7. Who desired this change of receipts 9 Was it by a military order; and, if so, whose 9
“Answer. It was Mr. Noblom desired them changed. I refused, at first, to do so, but Major-General Banks, commanding the department, sent me a note saying as I had taken the cotton, and the receipts not being properly worded, that I would sign these in their places, and I did so. This note from General Banks was lost on the Bed Biver campaign.
“Interrogatory 8. What became of the receipts originally issued by you, and taken up when you signed the present exhibits herewith filed ?
“Answer. That I couldn’t tell. They were either lost on the Bed Biver campaign, or in the Shenandoah Yalley, on the 19th day of October, 1861, amongst the rest of my papers. I retained them until they were lost.
“Interrogatory 14. Have you ever seen him write, and were you familiar with his handwriting 9 “Answer. I have, a great deal.
“Interrogatory 15. Look at receipt numbered on the back in red ink 31, now handed you, and made an exhibit in this case, and state whether the signature thereto is in the handwriting-of Captain A. B. Long 9 (Paper put in and marked Exhibit 30, with the initials of the commissioner and date of hearing.)
“Answer. I should say that is the handwriting of Captain Long; I am confident that it is his writing.”

Being cross-examined, the witness says as follows:

“ Cross-interrogatory 1. When do you say that these receipts, signed by yourself, were given 9 “Answer. Those were signed in February, 1864.
“ Cross-interrogatory 2. What was done with the receipts which had previously been given 9 “Answer. They were retained by me until lost. “Cross-interrogatory 3. When and where were they lost 9 “Answer. Host all my company books and papers on the Bed Biver campaign; it was some time in May, 1864.
‘£ Cross-interrogat'ory 4. Were those receipts company papers 9 “Answer. No, sir, they were not; but they were with the company papers in the company desk, as it was called.
“ Cross-interrogatory 5. Did you, yourself, compare the old receipts which were surrendered to you, with the new receipts which you gave and which are now produced 9 “Answer. I did, sir; very carefully.
“ Cross-interrogatory 6. In what respects did the new receipts differ from the old 9
‘‘Answer. Only in the form of wording of it; there was the same number of bales and the same plantation, and taken from the same man, only the wording was different.; there was more of it in the new ones.
“ Cross-interrogatory 7. Can you state the form of the receipts which were surrendered
uAnswer. Something like this: ‘I have this day taken for the United States Government so many bales of cotton from such a plantation, said to belong to A. P. Noblom & Company, of New Orleans.
Cross-interrogatory 8. For what reason did you object to giving new receipts ?
“ Answer. Being quite sick with the. chills and fever, and having given receipts once, I didn’t feel that I had a right to change them.”

The large experience which this court had then had in the abandoned or captured property cases had'taught its members that the contemporaneous receipts of officers who made the capture, though according to the books inferior to the testimony of witnesses, were much more trustworthy. It cannot now be recalled that these receipts of'officers in any other case were ever found to bo fictitious, and when they corroborated the testimony of witnesses, they, were always regarded as evidence of the most satisfactory kind.

It should also be noted that no oral argument was made by the claimants’ counsel further than the disclaiming" of the three items before mentioned, and that he submitted the case upon his printed brief. (See ante, p. —.)

On the part of the government no testimony of a single witness was produced; no evidence, documentary or otherwise, was offered; no request for findings of fact was made; no brief was filed; and the counsel for the government directed the attention of the court to the following items or causes of action in the tabulated statement as the only ones which were contested:

Bales.
Cotton on plantation of Pierre Pitre. 31
Cotton on plantation of C. Eomero... 7
Cotton on plantation of J. Berin. 37
Cotton on plantation of D. Dejean. 30
Cotton on plantation of E. W. Heath. 8
These items amounted to... 113

Here it may be noted that the court decided in favor of the government (1) as to all the items which were contested; (2) as to 145 bales of an item or parcel which had not been objected to by the counsel for the government, viz, B. Peteten & Co.’s 205 bales; (3) as to 46 bales sought to be recovered in the claimants’ brief, but not set forth in the tabulated statement, amounting in all to 304 bales.

Concerning the declared law which prevailed in this court when the case came to trial, there was a circumstance connected with the case which at this distance of time may be overlooked. We say the “declared law which prevailed in this court,” because very grave differences existed'from the first between this and the Supreme Court concerning the purpose and nature of the abandoned or captured property act, and of the principles of law applicable to it, and in the light of which it should be interpreted and administered. (Witkowski’s Case, 7 C. Cls. R., 393, 398).

Among these subjects of difference was that of a suit brought by an executor or administrator, with the resulting question whether the loyalty to be established under the statute was that of the deceased owner, or that of the representative owner, the administrator of the estate. “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 j but we were at the same time aware that such actions were merely possessory, while the statute under which we were acting 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 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. Deferring 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.” (Carroll’s Case, 7 C. Cls. R., 589.)

The Supreme Court thought differently. It reversed the judgment, and held that the person having the legal custody of the property at the time of capture was the owner within the meaning of the statute, and that it was his loyalty and not that of the deceased intestate which the statute intended should be established. (Carroll’s Case, 13 Wall. R., 351.)

Accordingly, when the case of a factor in possession, with a lien for advances, came before this court, the principle laid down by the Supreme Court in the then recent case of Carroll was applied to it, and this court said:

“The Supreme Court decided in Carroll’s case that a suit may be maintained under the abandoned or captured property act by one who was not the owner in his own right, but who, at the time of seizure, was possessed of the property under a title upon which he could maintain an action of trover or trespass, and who, at the time of bringing suit, was entitled to receive the proceeds as the trustee or representative of parties not before the court. We perceive no difference in principle between the case of an administrator and of a factor in possession with a lien upon the property for advances made. The factor is entitled to hold the property; he may sell it to repay his advances, or maintain an action of trover or replevin, to the exclusion of any action by his principal, and on recovering its value he becomes a trustee of the original owner to the extent of his residuary interest. It may be doubted whether the original owner not in possession, not entitled to possession, and not primarily entitled to the proceeds, could maintain a suit here under the statute; and it is tolerably certain that he and the factor could not have brought several and conflicting suits' for their" respective interests and compelled this court to settle disputed accounts between them. Therefore it seems tolerably clear that this suit is properly brought by the factor, who, on recovering, will be liable to his principal for the surplus after repaying his own advances, as if this suit were an action of trover brought in a court of common law.” (Villalonga’s Case,. 8 C. Cls. R., 452.)

When the present case of Bellocque, Noblom So Oo. came to trial the decision of this court in the Villalonga Case had been rendered, and its reversal in the Supreme Court (23 Wall. R., 35) had not yet taken place. Hence the variance between the-allegations of the first and last petitions received no attention from the court, it being believed by its members that the claimant was entitled to recover under the decision of the Supreme-Court in Carroll’s Case, upon the allegations of the first petition; and that the new allegations set up in the final petition, which changed Bellocque, Noblom So Co. from factors to purchasers, were merely a precaution of counsel for the purpose of making the pleading conform to facts which had been established by evidence. As the amount involved in this case was-more than three times as great as that involved in the Yilla-longa Case, the court naturally supposed that if the same question existed in this case the counsel for the government would have requested a finding of facts, and would likewise have taken an appeal.

Finally it appeared on the face of the record that Bellocque, Noblom & Co. were not unknown to the officers of the government, one member of the firm having presented in 1863 an enormous claim for 2,580 bales of cotton to the chief quartermaster of the Department of the Gulf, Colonel Holabird, who had investigated the claim, and allowed it to the extent 2,120 bales, and had paid to Noblom thereon $168,582.40. It also appeared that the same member of the firm had been the Belgian consul in New Orleans, and that the firm, at least in the evidence, had been a reputable commercial house, doing a large business there. To these facts may [be added one more, which would have tended to disarm suspicion if any had existed, viz, that the claim was no longer prosecuted by the original claimants on their own behalf, but by a syndic of their estate, appointed by one of the courts of Louisiana, and for the benefit of creditors.

Notwithstanding that the Attorney-General and his assistant counsel had called no single witness, and had produced no documentary evidence to refute the case; and notwithstanding that the counsel for the government filed no request for findings of fact, and professed to contest only a few designated items of those set forth in the petition; and notwithstanding the apparent disinterestedness of the prosecuting claimant, and the apparent respectability of the original claimants and all other persons who appeared to be connected with the case, so soon as the members of the court took up the record for examination a certain suspicion arose, not of fraud but of mistake, which found expression in the~opinion of the court. Ordinarily where no findings were requested by either party, where no point of law was argued, and where no conflict of testimony existed, no opinion whatever would have been delivered. But in this case, for the reason stated therein, an opinion was delivered, viz, to call the attention of counsel to what seemed to the court an extraordinary circumstance, and to suggest to the law officers of the government a possible error in the judgment, and to place clearly before them the fact that all responsibility therefor must rest thereafter with them, and not Avith the court. (See opinion, ante,' p. —.) . '.

No motion for a new trial or to correct the judgment was made by the Attorney-General or his assistants, and in August the judgment was paid.

On the 17th May, 1876, the present Assistant Attorney-General, having been in the meanwhile assigned as law officer of the government in this court, moved to vacate and set aside the judgment on the ground that it was procured by fraud and perjury. The motion was supported by affidavits which made prima facie an overwhelming case. It was allowed and a new trial ordered. On- the new trial no counsel appeared for Bel-locque, Noblom & Go., nor for the surviving syndic, Henry Peychaud, either at the talcing of testimony or on the hearing. The court, for greater precaution, ordered a citation to be personally served upon Peychaud notifying him to appear on a day certain for which the case was specially assigned. The citation was duly served upon him, but he failed to appear. On the motion of the Assistant Attorney-General the court has taken up the evidence and has proceeded to find the facts relating to the alleged frauds.

In view of the facts that none of the persons implicated have been heard at the bar, that the witnesses to establish the fraud were not subjected to cross-examination, that a strong feeling evidently exists between some of the parties to the transactions involved in the issues of the case, that the present claimant is absent, and that no one of his counsel has volunteered to-defend his rights or shield his character, the court has felt it to be its duty to scrutinize with unusual care the new evidence offered by the government and to reject all that is not clearly admissible. In view of the facts before mentioned, the court does not feel at liberty to spread the circumstances needlessly upon the record, nor to name the parties implicated, nor to characterize the transactions as they probably would be characterized if they had been defended. Suffice it to say that the evidence forces the court to the conclusions which are expressed in its findings of fact.

In this connection, however, it is proper to say that the court desires to note the fact specifically in its opinion, that there is no evidence connecting either Madame Odile Derbes.Bellocque or Mr. Boy with the frauds that 1 aint the case, and it is the opinion of the court that whatever fraud, was committed in the inception or prosecution of the claim in the name of Bellocque, Noblom & Co. was exclusively the act of the remaining partner, August P. Noblom.

This is the first case in this court wherein it is established that a claimant by fraud and perjury has succeeded in getting-money from the Treasury. There has been a great multitude of cases brought here since the court was reconstituted in 1863. Some of them have been smirched with the demoralization of the war; in a few fraud has been attempted, but has fallen short of success; in many, even for large amounts, the defense of the government has been confided (in times happily gone by)' to inexperienced or incapable or treacherous hands, yet the general result establishes the fact that in courts of justice the chances are overpoweringly against the actual success of a fraudulent claim; that sooner or later it will be uncovered, and that ultimately it will be unsuccessful. Furthermore, whatever fraud was devised by Bellocque, Noblom & Co. was not intended for this court, but was designed áb mitio to be perpetrated upon the government through the Department of State. The claim was prepared for that department; it was first filed there (upon the ground that the parties were foreigners) and this action was not brought until the very last day of the jurisdictional period for seeking relief under the abandoned or captured property act, and was not prosecuted until all hope that such claims would be taken up in the Department of State had vanished.

Furthermore, it is noticeable that the grosser perjury which vitiates the case was procured and perpetrated after the claim had passed from the hands of the original claimants, and while it was being prosecuted for the benefit of their creditors by a comparatively disinterested party. Finally, it is a significant fact that the fraudulent schemes to elude the decision of the Supreme Court in Lapene & Ferre (17 Wall. R., 601, Nov. 24, 1873) were concocted, and the perjury to support them was suborned, and the conspiracy to carry them into effect was planned, not by Bellocque, Noblom & Co., who brought the suit, nor by Henry Peychaud, the syndic, who prosecuted it, but by adventurers who were prosecuting the claim under a so-called contract with the syndic for shares of what might be recovered, and whose unscrupulous conduct and unprecedented success seem to vindicate the severity of the common law in prohibiting and punishing champerty.

The judgment of the court is that the firm of Bellocque, No-blom & Co., consisting of Odile Derbes Bellocque, August P. Noblom, and Pierre Boy, or the surviving partners or partner thereof, the original claimants who instituted and brought this suit, and the said August P. Noblom individually, and Henry Peychaud, the surviving syndic of the estate of Bel-locque, Noblom & Go., the present claimant herein, and who prosecuted this suit to judgment, be, and they hereby are, each and all of them, adjudged to have corruptly attempted and practiced fraud against the defendants, the United States, in the proof, statement, establishment, and allowance of the claim in this action; and the court finds specifically that the judgment rendered in this court on 18th May, 1874, in favor of the said Henry Peychaud, syndic as aforesaid, for the sum of $296,064, was procured by the fraud and corrupt practices of the said firm, and of the said Noblom, and of the said Peychaud in the proof and statement which they procured and used in the prosecution of this suit, with the corrupt intent to deceive the court and to defraud and wrong the defendants, to wit, as is more specifically set forth in the findings of this court filed the 31st day of May, 1881, and forming a part of this judgment; and it is further adjudged that the claim in this suit set forth and fully and at large described in the petition and amended petitions of the said claimants be, and hereby is, forfeited to the government, to wit, the said defendants, the United States; and that the claimants, and each and all of them, be forever barred from £>rosecuting the same. 
      
      In this connection it is proper to state explicitly tire fact that no person now attached to the Attorney-General’s Office had charge of the defense of cotton cases at the time above referred to or is in any way alluded to in the opinion.
     