
    BOYD’S CASE. Frederick W. Boyd, executor, v. The United States.
    (And other cases.)
    
      On the commissioners Report.
    
    
      A number of oases coming before the court at the same time appear to be seelcing a recovery out of a common fund. No one having moved for cm interpleader, and the sxmts conflicting so far that the aggregate demands exceed the amount of the fund, the court states its inability to determine them, and at the suggestion of the claimants they are ref eared to a commissioner to state an account of the cap-iwred property and of the demands upon the fund, and for other pmposes. The cases finally come to hearing upon motions to set aside or to confirm Ms report.
    
    I. When, in a suit under the Abandoned or captured property Act, the claimant alleges a certain quantity of his cotton to have been captured, he must he limited to that quantity in estimating his recovery, and it must he taken as a 'basis, though it was subjected to subsequent losses which will reduce the recovery to less than the quantity alleged, while the evidence indicates that a larger quantity was captured. '
    II. Where several oases of distinct parties, seeking relief out of a common fund, are referred to a commissioner, he cannot use the testimony of a witness in one case to defeat the recovery of another party, unless the two cases were united by interpleader or otherwise ; because the party in the latter had no legal opportunity to cross-examine the witness in the former.
    III. Where cotton is shipped upon a steamer by the agent of certain heirs, and he accompanies it and asserts their ownership prior to and at the time of seizure, such possession, unchallenged, must be deemed sufficient evidence of title to support a suit under the Abandoned or captured property'_Act.
    
    IV. Where the captured property of different owners is intermingled- and the identity lost, each owner can recover only out of the common fund derived from the mass; and where the mass was subjected to losses, the respective owners must contribute to the loss in the same proportion that they contributed to the mass,
    V. The action of the Secretary of the Treasury in releasing captured property to the owners was contrary to the terms of the Abandoned or captured property Act, but his illegal action did not transmute the money released into a constructive fund in the Treasury for the benefit of owners seeking relief under the statute. In the absence of positive proof to the contrary, it must be inferred that the Secretary released the proceeds to the true owner, and did not exceed the xn’oper amount to him belonging.
    VI. Where a case was refci’red, on the claimant’s motion, with others, to a special commissioner, the order expressly providing that they finally be heard upon the report of the commissioner, and the claimant had reasonable time to make proof that the proceeds of her captured property reached the Treasury, but neglected to do so, the court cannot, on the coming in of an adverse report, withhold from a common fund, liable to be absorbed by the judgments of the other parties, an amount sufficient to meet the possible future recovery of this claimant, nor can it allow her to continue the prosecution of her case against the defendants when the fund held by them will be exhausted under the present direction of the court.
    
      The Reporters’ statement of tlie case:
    The motions to confirm or reject the report of Mr. Commissioner Eveleth in these cases were brought to a hearing upon the law-docket. The court, after hearing counsel for and against the confirmation of the report, in effect overruled it in certain particulars, and referred it back to the commissioner, with specific instructions for an amended report. On tbe coming in of tbe amended report it was adopted as tbe finding of facts. Conclusions of law were then filed. Tbe following are tbe material parts of tbe order of reference:
    These cases are referred to Eben Eveleth, esq., of tbe city of "Washington, as commissioner, to take and state an account showing tbe amount of proceeds of captured cotton in tbe Treasury derived from cotton captured in Arkansas, Mississippi, Louisiana, and Texas, in tbe years 1862,1863, 1864, and 1865, and tbe commissioner will proceed under tbe following directions:
    He will state tbe cases (including those heretofore decided) where tbe cotton captured is specifically traced and its specific proceeds can be ascertained; and where only a portion of tbe captured can be traced it will be so stated, and tbe remainder will be dealt with as hereafter directed.
    He will ascertain tbe proceeds in tbe Treasury of cotton which cannot be specifically traced, as where various parcels of cotton have been intermingled and their identity lost or where tbe Treasury returns are defective; and be will separate them into specific funds, upon tbe principle laid down by this court in Price’s Gase, (7 C. Cls. R., p. 567,) showing in each fund tbe number of bales sold, tbe gross price per bale, tbe amount of expenses charged, the time and place of sale, and tbe officer or agent making tbe sale, and if any of such proceeds or cotton has been released, he will note tbe fact.
    He will ascertain, so far as practicable, tbe amount of cotton captured which entered into and is represented by each fund, as in Price’s Case, and tbe average per bale of tbe net proceeds to which tbe owner will be entitled; and to that end be will take tbe quantity, so far as practicable, from judgments of tbe court; and where cases have not been adjudged, be will resort to the petitions of tbe parties; and in estimating tbe net proceeds, be will exclude from tbe expenses to be deducted all charges for custom-house fees and for taxes upon cotton,; and where cotton has been mingled with other captures, and in part subsequently identified, be will proceed according to tbe rule laid down in Oarroll’s Case, (7 C. Cls. R., p. 589.)
    Tbe commissioner will bear the explanations and suggestions of counsel for both tbe claimants respectively and tbe defendants, and be will report in tbe cases referred tbe rate per bale at which the parties are entitled to recover, if at all, showing the fund upon which each will be a charge. As to cases not referred, he will state the fund upon which they will be a charge.
    Where a petition claims a greater quantity of cotton than was actually captured, the party, by his attorney, may file a stipulation stating the true amount captured, and the commissioner will regard such amount as a claim upon the fund instead of the amount stated in the petition, as required by the third direction in this order.
    The commissioner is further instructed to report to the court whether, when captured or abandoned, cotton, received by the agents of the United States from any or all the places or States named in this order, or the proceeds of such cotton, were released to persons claiming the same, by the Secretary of the Treasury or any agent or officer of said Department, a bond or bonds of indemnity was or were taken from such claimants respectively, and what are the several dates and penalties of said bonds, and the names of the respective principals and sureties in said bonds respectively, and the condition or conditions of said bonds respectively ; also to report so much of the accounts of the assistant treasurer at Saint Louis, Mo., and of the United States depositary at Cincinnati, Ohio, for the years 1863, Í864, and 1865, as will show the respective amounts paid to them respectively by William P. Mellen, supervising special agent of the Treasury Department, as proceeds of captured or abandoned property to said officers respectively in said years, together with the respective dates and several amounts paid to or deposited with each of them; also a statement of the several and respective amounts paid out of said proceeds by said assistant treasurer and depositary respectively on account of said proceeds having been released to claimants, together with the names of the parties respectively to whom the same was paid, the amount and date of the several payments, and upon whose authority, orders, warrants, drafts, or checks the said several sums were so paid to such claimants respectively.
    And it is further ordered, that upon the filing of the report the clerk shall cause it to be printed, and shall send copies to the attorneys of the parties interested, and that every party, claimant or defendant, having objection to make to such report, shall file his exceptions thereto within thirty days, and the commissioner will then take up the exceptions and report upon them, stating in his supplemental report whether his original report should be modified, or the reasons why the exceptions should not be allowed.
    And it is further ordered, that any such supplemental report be in like manner printed and sent by the clerk to the attorneys of the parties interested, who may then file further exceptions to the supplemental report within thirty days-; and that the reports be then set down for hearing as to confirmation on the first law-docket after the expiration of the time for filing the final exceptions, and be heard upon the exceptions filed to the original and supplemental reports, and as to no other matter than such as may be therein excepted to.
    
      Mr. George Taylor, in Lizzie Hamilton's Oase, argued the following exceptions upon the coming in of the report:
    General exception:
    1st. The commissioner was not authorized to decide cases referred, but only to report the quantity of cotton taken from different points and accounted for in the Treasury of the United States, and the number of bales claimed out of the fund.
    2d. The said commissioner has assumed the functions of the court, which was not contemplated by the order of reference or by the parties asking the order, and which he cannot legally do under the statute of 12 th March, 1863, for granting the right of the court to refer matters for report. The final decision must be made by the court; and this cannot be done without an examination of the facts in each particular case.
    Special exceptions in this case :
    1st. That the said commissioner has decided the case against the testimony; for there is not one word of testimony in the case showing upon which particular vessel the various lots of cotton turned over to Captain Gaston were put.
    2d. In attempting to decide this case upon testimony taken in other cases, where no opportunity was given this claimant to cross-question the witness or to contradict the testimony.
    3d. In finding that the most of the three hundred and eighty-five bales were put on the Henry Clay, whereas the cotton turned over to Captain Gaston was not marked, but was received in bulk, and it is impossible for any one to say on which vessel any particular lot of cotton was put.
    4th. In not allowing a portion of this claim; for the commissioner finds only “ that it appears that most of the 38¡¿ bales were put on the Henry Olay,” and upon his own finding a portion, at least, of this cotton was put on the other steamers and was finally received by the Government; and hence an allowance for some part should have been made to claimant.
    5th. The commissioner erred in not massing all the cotton received at Milliken’s Bend, which was not specifically traced by marks or otherwise, and in not dividing the whole amount with the number of bales proved, and thus giving each claimant his or her pro rata in the general fund.
    6th. The contribution of claimant’s cotton to the cotton received at Milliken’s is as clearly established in this case as in the cases Nos. 343,3341,3257,3551, and 3337, in which the commissioner has allowed the pro-rata proportion of the Milliken’s Bend cotton; and in this particular the commissioner’s report is unjust to the claimant.
    
      Mr. J. D. McPherson, iu the case of Oliver T. Morgan, for the Keene heirs and the case of Helen 0. Key, argued the following exceptions:
    Helen O. Key, the claimant, excepts to the report of the special commissioner in this case, recommending the dismissal of the petition for want of proof to establish the claim.
    And the claimant shows that, if the proof be not sufficient to establish the claim in the judgment of the court, she should not be precluded from offering further proof, because the case had not been set for hearing, nor had she closed her evidence when the case was referred to the commissioner, nor has she yet closed her evidence.
    O. T. Morgan & Co., the claimants, except to the report of the special commissioner in this case, recommending the dismissal of the petition for want of proof to establish the claim.
    And the claimant shows that, if the proof be not sufficient to establish the claim in the judgment of the court, they should not be precluded from offering further proof, because the case had not been set for hearing, nor had they closed their evidence, when the case was referred to the commissioner, nor have they yet closed their evidence.
    
      
      Messrs. Bartley & Casey, in the cases of Oliver T. Morgan^ executor, and other cases, -argued the following exceptions:
    In the matter of the report of Eben Eveleth, esq., commissioner, the claimants, F. W. Boyd, executor,. &c.; Josiah Winchester, executor, &c.; O. T. Morgan, executor; and Louise H. Purdy, executrix of B. 0. Ballard, deceased, file the following exceptions to said report:
    1st. The commissioner has usurped the functions and faculties of the court by undertaking to decide on the proofs required to sustain the cases, and on the competency, relevancy, and sufficiency of the evidence in the cases.
    2d. His duty was limited to the report of facts. The application and effect of such facts were for the court. ■
    3d. That it is not competent for the court to delegate its powers and functions to a commissioner, or to confer upon him the power exercised in these cases.
    4th. That the commissioner is mistaken in his' deductions from the facts proved.
    5th. The commissioner is mistaken in reporting his deductions and conclusions and inferences, instead of the facts proved in the cases.
    And the following special exceptions in the Winchester Case £
    1st. The commissioner errs in holding that, where the proofs showed that plaintiff’s cotton was seized and turned over to General Blair, commanding a division, and by him taken into possession, and that large quantities of cotton, very soon thereafter, were shipped from the same neighborhood and command and sold by the United States, the claimant had failed to trace his property into the possession of the United States.
    2d. The commissioner erred in failing to give place to the natural and legal presumption that such officer did his duty, and did not destroy or embezzle the property or allow it to be done.
    3d. That the acts of the officers of the United States, in commingling the claimant’s cotton with others, and failing to keep of it a separate and specific account in the shipment and sale, should not prejudice claimant, if the property is actually traced into the hands of such officer.
    4th. That the facts proved, to wit, ownership, seizure by the-military, turning over the property to a general officer, his reception of it, and the shipment of large lots of similar property aboutthesametimeandsoonafter on behalf of the United States, and its sale, afforded reasonable ground for presumption that claimant’s cotton had been received and sold by the United States, and the proceeds were in the Treasury.
    5th. The commissioner has misapprehended the proofs in the ease, and the deductions, conclusions, and inferences to be drawn from them.
    And the following special exceptions in the Boyd, Morgan, and Purdy Oases:
    1st. The commissioner erred in not stating the facts proved, instead of his inferences, deductions, and conclusions from the supposed facts.
    2d. The commissioner erred in holding that, when our plantations were seized by the chief quartermaster of the United States Army, under command of a major-general commanding an Army Corps, located in the immediate neighborhood of said plantations, with a view of gathering and seizing our cotton, and the cotton was so picked, ginned, and baled by the agents and employes of such quartermaster, and under his care, control, and supervision was shipped to market, such facts do not support a reasonable inference and presumption that our eotton was received and sold by the United States.
    3d. The commissioner erred in holding that the acts of the United States, in recognizing the claims of the contractors, who had so been put in possession of our plantations and had taken ■our property, and delivering over to them part of the same, or the proceeds, did not raise any presumption or afford any proof that the other half or our portion of said cotton was ever received by the United States from our plantations.
    4th. The commissioner erred in holding that, although the United States received large quantities of cotton from the contractors in charge of our plantations about the same time ours was shipped, which was not claimed by any one else, these circumstances afforded no presumption or proof that the United States had ever received our cotton.
    5th. The commissioner erred both in his deductions from the evidence and his application of the facts proved to the several cases.
    6th. The commissioner erred in holding that, in connection with the other facts proved, the official statements,' by the .general-in-chief, the general in immediate command of the military force in charge of these plantations, and the quartermaster who seized and leased them, that the cottons from them were faithfully turned over to the United States, had no tendency to prove that our cotton was received and sold by the United States.
    And the following special exceptions in the Morgan Case:
    
    1st. In holding that the property was not traced into possession of the United States.
    2d. The commissioner erred, infact, in holding that the Keene heirs were the owners of the Morgan plantations.
    3d. In holding that the release of the proceeds to Horace B. Tebbetts, who had no right to receive it, barred our recovery, the release being after the payment of the money into the Treasury of the United States.
    il/r. O. F. Peelc, Mr. A. P. Hovey, and Mr. O. S. Lovell were heard for various claimants in favor of confirming the report.
    
      Mr. Alexander Johnston appeared for the Government; but regarding the question as simply one of distribution, affecting the claimants as between themselves, interposed no objection on behalf of the defendants.
   Pee cueiam :

After hearing counsel on the motion to confirm the report of Eben Eveleth, esq., commissioner, bearing date April 4, 1874, and upon the exceptions filed thereto by some of the parties, and after duly considering the proofs and evidence taken in the several cases referred, respectively, the court is of the opinion that the account of the proceeds of the captured property should be restated, and the findings of facts be made to conform to the following instructions:

1. In the case of Lizzie Hamilton, administratrix, &c.:

The quantity of cotton captured, belonging to the claimant’s intestate, must be limited to the quantity averred in the original petition, viz, 150 bales. This quantity will be stated to have been transferred, as now stated in the report, and to have been mingled with other cotton, and its identity lost. The mass, consisting of 1,096 bales, having been shipped on the steamers Tigress, Forest Queen, and Henry Clay, and only a portion thereof having been recovered, the claimant’s cotton must be deemed to have contributed to the loss. She will be entitled to recover for her proportion of the 150 bales (constructively saved from the three steamers) out of the general fund.

2. In the case of Oliver T. Morgan, for the Keene heirs, (No. 3556:)

The cotton must be deemed to have been in the possession of the parties in interest, viz, Narcissa Johnston and others, heirs, &c., upon the steamer Louisiana, prior to its seizure, and such possession, unchallenged, to be sufficient evidence of title. The facts will be stated accordingly, together with the intermingling of the cotton with other captures, the loss of its identity, and the loss to which the mass was subjected. The claimants will recover, for their proportional part of the quantity saved, out of the general fund.

3. In the case of Oliver T. Morgan, executor, (No. 3420 :)

The quantity of cotton reported seized upon the plantations of claimant’s testator must be limited to the two parcels averred in the petition, amounting to 398 bales. The court finds from the evidence that 393 bales were captured, that 38 bales and 95 ■ bales thereof are specifically traced and accounted for, as stated in the report, and that the remaining 260 bales formed a part of 2,400 bales turned over to the Government by Wagley & Go., contractors, or their assignees, Cutler & Go., one-half part of which, or the proceeds representing the same, was released to the contractors for their services. In addition to the recovery allowed by the special commissioner for the 38 bales and 95 bales, the claimant should recover the proceeds of the 260 bales, after deducting therefrom the one-half part allowed to the contractors. For the 38 bales and 95 bales specifically traced the report will stand,- and as to the remaining 130 bales, now allowed by the court, they will be a charge upon the general fund at the average rate.

4. In the case of Frederick W. Boyd, executor :

The court finds from the evidence in this case that there was taken by Wagley & Co., contractors, or their assignees, Cutler & Co., from the claimant’s plantations, 450 bales of unpicked cotton and 200 bales of baled cotton, making 650 in the aggregate. From this quantity should be deducted 44 bales specifically traced and already allowed in the report of the commissioner. The remaining 606 bales formed a part of the cotton received under the Wagley contracts, one-half of which was released to the contractors for tbeir services. For 303 bales tbe claimant should recover, in addition to the quantity allowed in the report of the commissioner, which 303 bales will be a charge upon the general fund.

5. The commissioner will combine in one fund the proceeds of cotton shipped from Milliken’s Bend, Goodrich Landing, Lake Providence, and Villa Yista, pursuant to the recommendation in his report of April 4, 1874, and he will compute and state the amount which the claimants, whose cotton intermingled, are entitled to recover out of this general fund accordingly, including in the average the cases of Hamilton, Morgan, Morgan’s executor, and Boyd’s executor, now referred back.

And the court, upon the facts stated in the amended report of Commissioner Eveleth, bearing date the 14th May, 1874, decides thé following

conclusions oe law.

1. Where the captured property of different owners was intermingled and the identity lost, the respective owners can recover only out of the common fund derived from the mass; and where the mass was subjected to loss by accident, theft, or appropriation for military purposes, the owners must contribute to the loss in the same proportion that they contributed to the mass.

2. The owners of captured property appear to have formed two classes. The first class received the proceeds of their property by the direct release of the Secretary of the Treasury; the second are now seeking to recover their proceeds under the Abmdoned or captured property act. The action of the Secretary was illegal and contrary to the provisions of the statute, but his illegal action did not transmute the money which he released into a constructive fund for the benefit of the other class of owners. In the absence of positive proof to the contrary, the court must infer that the Secretary released the proceeds to the true owners, and did not exceed the proper amount. In these cases now before the court, it does not appear that the Secretary released the proceeds belonging to any of these claimants to a stranger, and hence it cannot be held that they should recover damages for his action. It is possible that amounts released were in excess of tbe proceeds strictly belonging to such persons, but the damages thereby caused to the present claimants are too remote to be the subject of judicial determination upon the proofs.

3. As to the case of Helen C. Key, it was referred to the commissioner on the motion of the claimant. The order of reference expressly provided that the cases referred be heard upon the report of the commissioner and the exceptions thereto. The claimant had a reasonable time to make proof that the proceeds of her cotton reached the Treasury; and the court cannot now withh old from the fund an amoun t sufficient to meet any future recovery by her without doing injustice to other claimants, nor can it allow her to continue the prosecution of her case when the fund shall have been exhausted, without doing injustice to the defendants.

4. As to the case of Josiah Winchester, the facts do not establish a presumption that the captured cotton ever came to the possession of an agent of the Treasury, nor that any proceeds thereof are in the Treasury.

The following comprise the cases included in the report in which judgments were ordered to be entered in favor of the claimants, with the number of bales and the amount of the judgment in each case:

F. W. Boyd, executor, 347 bales. $37,350 92

B. B. Thomas, and T. W. MasoD, 134 bales. 25,184 50

Thomas Watts and wife, 27 bales. 3,076 54

Allen Jones, 43 bales. 4,899 68

Lizzie Hamilton, administratrix, 62 bales. 7,064 66

George Watt, 187 bales... *. 21,307 94

Oliver T. Morgan, tutor, 105 bales. 11,964 35

Simon Witkowski, 400 bales. 45,578 50

Oliver T. Morgan, executor, 168 bales. 21, 870 68

Catherine Carson, executrix, 6 bales. 843 00

Benj. C. Williams, 26 bales. 7,000 95

Louise Purdy, administratrix, 169 bales... 42, 513 48  