
    James Wilde et al. v. The United States.
    
      On the Proofs.
    
    
      The claimant procures a rule calling upon the Secretara of the Treasury for certain statements and information. The Secretary, in reply, transmits several reports of Treasury agents, with correspondence and ex-parte affidavits not required hy the rule. The claimant objects to them as not responsive to the rule, and as incompetent evidence for the defendants.
    
    I. A party -who has procured a rule requiring an Executive Department to transmit certain statements and information is not bound by statements and information returned by the Department not responsive to tbe rule. But as these form a part of the record, the defendants may read them in evidence, if they be competent and relevant.
    II. Ex-parte affidavits on file in an Executive Department cannot be used by the Government to establish the fact that the captured property which is the subject of the suit belonged to the Confederate government, and not to the claimants’ vendor. If such affidavits can be brought into the case as a part of a Treasury agent’s official report, it is only as evidence to show the ground upon which the agent based his seizure, and not to establish the substantive fact that the right of seizure did in fact exist.
    
      
      Messrs. Oooley & Clarice for claimants :
    This action is brought by the claimants, wbo are citizens oí the State of New York, under the act known as the “Abandoned and captured property act,” to recover the net proceeds of ten bales of upland cotton seized at Charleston, South Carolina, by the United States Treasury agents, in October, 1865, and which were subsequently shipped to New York, and there sold by the Government, and the proceeds of which have been paid into the National Treasury. The ownership of the property, its seizure and sale, and the adherence of the claimants to the United States during the late civil war, are convincingly established by the testimony contained in the record.
    
      Mr. Alexander Johnston for the defendants.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover the proceeds in the treasury of ten bales of cotton, seized by Treasury agents of the Government, in October, 1865, at Charleston. The amount claimed is $2,322.28.

The only point in the case is a question of the admissibility of evidence. The claimants moved for a rule, which was allowed, calling upon the Secretary of the Treasury for—

“ 1. A statement of the amouut of cotton seized and collected at or near Charleston, South Carolina, by Supervising Special Agent T. 0. Callicott in 1865, and by him shipped to Simeon Draper, United States cotton agent at New-York.

“2. A statement showing from what sub-agent said cotton was received by him, and where and by whom the same was seized.

“3. A statement showing the amount of such cotton sold in New York by said Simeon Draper, the aggregate amount for which the same was sold, the expenses thereof, and the net proceeds per bale.”

The Secretary, in reply, transmitted several reports of assistant Treasury agents, with correspondence and ex-parte afluía vits therein referred to. The affidavits were made about the time of the seizure by the Treasury agents, and apparently to authenticate the facts upon which their action was based.

The claimants now object to these affidavits upon two grounds: First, that they were not called for by them, and are not respongive to their rule upon the Treasury $ second, that, being ex parte-, they arc incompetent evidence against the claimants.

As to the first ground of objection, it is true that a party is not bound to receive every irresponsive answer that a witness may thrust upon him; yet, as these pápers form a part of the record, the defendants obviate that difficulty by offering them as their own, and the question really to be determined 'is, whether they are competent.

The object for which the affidavits are introduced is to establish the fact that the captured cotton belonged to the Confederate government, and not to the claimants’ vendor. The claimants have proved their title to the property by competent ■evidence. Can the defendants overthrow it by these ex-parte papers"! We think not. If the affidavits could be brought into the case as a part of the supervising .Treasury agent’s report, they would be evidence only to show the pretext upon which the Treasury agents acted, i. e., the ground upon which they based their seizure. They could not be used to • establish the substantive fact that the right of seizure did, in fact, .exist; that the cotton was, in fact, the property of the Confederate government. Such a defense can be substantiated only by competent legal evidence, which needs not to be defined.

Of the ten bales of cotton seized the proceeds of only seven seem to have come to the Treasury, and to that extent the ■claimants should recover.

The judgment of the court is, that the claimants recover the proceeds of seven bales of cotton, seized by the Treasury agents of the United States at Charleston, being $123.20 per bale, amounting in the aggregate to $802.82.  