
    Moses Adler v. The United States.
    
      On the Proofs.
    
    
      Major General Banks, commanding the department of the Gulf during the war of the rebellion, issues an order to the effect that any person may bring from the enemy’s country cotton, sugar, S(c., of which the government shall become the purchaser, at “its actual value at the time and place where it is found." The claimant passes into the enemy's country with General Banks’s army, and brings cotton and. sugar to New Iberia, where it is taken by the army and sent to New Orleans. The claimant seeks payment from General Banks, according to his order, but is not paid. He brings this action under the “Abandoned or captured property act" (12 Stat. L., p. 820) for the “net proceeds ’ of the property now in the treasury.
    
    No opinion, of the maj ority of the court was given, other than the following formal findings, which state no legal principle or specific fact. It would seem that an agreement with a commanding general to bring out property from the enemy’s country, whereof the government is to become the purchaser at a certain, valuation, does not preclude the party from seeking' the “net -profits’’ of the property, if they have been placed in the treasury as such under the '“Abandoned or captured property act,’’ (12 Stat. L., p. 820,) instead of the agreed value.
    Messrs. Lewis and Cox and Messrs. Owen and Wilson for claimants :
    Tbe plaintiff claims the proceeds of 77 bales of cotton and nine hogsheads of sugar, captured on the Banks expedition up the Bayou Teche, in the State of Louisiana, in the spring of 1863.
    It was taken by Captain A. B. Long, 52d regiment Massachusetts volunteers, and Lieutenant L. 0. Baily, assistant quartermaster, 22d Maine volunteers, respectively commanding officer and post quartermaster at New Iberia, Louisiana.
    Receipts were given by these officers for all the cotton claimed in this action. The originals are filed, and some precisely similar in form, signatures, &c., are filed in the Treasury Department, upon which Colonel Holahird has paid a large sum to the loyal owners of the cotton and sugar specified in such receipts. The receipts in this cause can be compared by the court with those in the treasury, but we are unable to obtain possession of them to introduce them in evidence for comparison by the court.
    These receipts are sufficient evidence of the seizure and taking of the property by the United States officers.
    The only deposition taken on behalf of the United States is that of Captain Long, He states that this property was seized and taken by him in accordance with written orders from G-eneral Banks, and shipped by him to Lieutenant Colonel Chandler, assistant quartermaster at Brashear City; that he gave receipts to a few persons only, after being satisfied of their ownership of the property..
    He says the plaintiff was the first person who presented himself for the purpose of taking the oath of allegiance in the town of New Iberia.
    It is proved by Charles L. Mann, that this cotton was shipped to Brashear City, and from thence to New Orleans.
    In July, 1864, the plaintiff made application, to General Banks, commanding department of the Gulf, for a settlement of his claim and submitted to him these receipts. General Banks made this reply :
    That this property was brought in or surrendered to the quartermaster when our forces occupied the Teche country, upon public notice that the government would pay its actual value at the time and ■ place when taken; and he orders the quartermaster to pay for it, 18 cents per pound for the cotton, and five cents per pound for the sugar.
    The plaintiff testifies that he made the above application, and the quartermaster first promised to pay the money, but afterwards refused. No ground is given by him for his refusal, save that to the • plaintiff, “that General Banks had no right to give such an order.” Captain Mahler knew that the cotton had been sold for the government.
    This was all done after the submission to these officers of the receipts offered in evidence, and an examination and inspection thereof by them.
    If the court shall be of' opinion that the cotton was shipped to New York and sold there, the return of the Treasury Department will afford the basis of calculation per bale; if it was sold in New Orleans, then the rate per bale has been determined in the case of Hudnall v. The United States.
    
    It appears sufficiently in the testimony that all the cotton received at New Orleans by Colonel Holabird, or the officers under him,-was either shipped tó New York and Boston, or else sold in New Orleans. That sent to New York is accounted for direct, through the treasury agents ; that sold at New Orleans has been covered into .the treasury by the transfer of sufficient amount of funds from the quartermasters’ appropriation. In either view the proceeds are in the treasury.
    The Assistant Solicitor for the defendants.
   Loring, J.,

delivered the opinion of the court:

The petitioner claims the net proceeds of 77 bales of upland cotton and nine hogsheads of sugar, and the court finds the facts to be :

That about the 14th of April, 1863, the petitioner was a citizen of New Iberia, in the State of Louisiana, and owned and was in possession of 73 bales of cotton and nine hogsheads of sugar.

That the United States troops took possession of and occupied said New Iberia, and an order was issued by General Banks, commanding the department of the Gulf, giving public notice that the government would pay for such property, its actual value at the time and place where it was found when our forces took possession of the country.

That the said 73 bales of cotton were, under general orders from headquarters, captured and seized at New Iberia and taken from the possession of the petitioner by the Uifited States and sold by themj tbe net proceeds thereof, amounting to $13,333 09, were paid into the treasury.

That the taking and disposition of the sugar by the United States were not satisfactorily proved.

That the petitioner was a loyal citizen of the United States, who has never given aid or comfort to the rebellion.

And, on the facts stated, the court find that the petitioner is entitled to receive for the net proceeds of said 73 bales of cotton the sum of $13,333 09, and judgment will be entered and certified to him therefor.

Nott, J.,

dissenting:

I do not think the claimant is an owner of captured property within the meaning of the “ Abandoned or captured property act.” He appears to have brought out these products from the enemy’s country under an agreement with the commanding general of the department, which, in terms, authorized the defendants to become the purchasers for “ its actual vafoie at the time and place where it was found when our forces took possession of the country.” This “ actual value” appears to have been for the cotton 18 cents per pound, and for the sugar five cents. To that extent the claimant should recover, and not for the net proceeds of the cotton under the act.

This property, it is also to be noted, was taken from the claimant by the defendant’s quartermaster at the place of its purchase — that is, at the extreme front, and where it was liable to recaptuie. At that place, and under these circumstances, its actual value fell very far short of the net proceeds after the defendants had run the risk of bringing it out. The claimant also deemed his rights limited by the order or agreement of General Banks, and he sought payment thereunder. I think, therefore, that the action should be deemed to have been brought upon that agreement, and to be subject to all the restrictions of the act reconstituting this court, (3d March, 1863, 12 Stat. L., p. 765,) including that of appeal to the Supreme Court, and that judgment should be rendered accordingly.  