#### ELIAS C. BOUDINOT v. THE UNITED STATES.

No. 12350

June 4, 1883.

The claimant, a Cherokee Indian, in 1867 owned a tobacco factory in the Indian Territory, where he was carrying on the business incident thereto. ,

By the terms of the treaty between the Cherokees and the United States (14 Stat. L., 799), every Cherokee was accorded the right to manufacture products and ship and drive them to market without restraint, paying any tax levied by the United States on the quantity sold outside the Indian Territory.

¡By *Jot of July*20, 1868 (15 Stat. JO., 167, ch. 186), the laws imposing taxes on tobacco, &c., were extended to articles anywhere -within the exterior boundaries of -the United States.

Thereafter, in December, 1869, the claimant’s factory and its contents and all his tobacco were seized, libeled, and sold, for violation of the internal-revenue laws in selling tobacco in the Indian Territory without the internal-revenue tax having been paid thereon.

-Congress, by *Jot of June*4, 1880 (21 Stat. L., 544, ch. 128), authorized the claimant to bring an action in this court ‘-'to recover what may he due to him in justice and equity for the loss inflicted upon him by reason of said seizure, for an alleged violation of the internal-revenue laws, of his property’ and damages thereto while under seizure, the value of the tobacco, material, &c., and the expenses which he has been subjected to thereby.”

Held :

I. The principal duty of the court under the act is to assess damages as a jury would assess them.

II. The marshal’s return of the quantity of tobacco seized *is prima fame*true, and is not falsified by the evidence, hut is sustained by it.

.III. No prospective profits are allowed, because it appears that the claimant could not manufacture tobacco at a profit at the place where his factory was located if he were obliged to pay internal-revenue taxes; and the law required payment of such taxes.

IV. The claimant’s living expenses at Washington while he was seeking relief from Congress are not allowed, but for his expenses incurred in connection with the seizure he can recover.

The following- are tlie facts found by the court:

I. The claimant is a Cherokee Indian, and at the time of the occurrences hereinafter detailed was a citizen of the Cherokee Nation, but residing in the State of Arkansas.

II. On the 22d of December, 1869, he owned a tobacco factory, situated in the Indian Territory, about 100 yards west of *717tbe western boundary line of the State of Arkansas, and about three miles south of the northwest corner of that State. This-factory was established there in .1867, and enlarged in 1868. There was a post-óffice at the factory, called Boudiville; but there was nothing but the factory to require a post-office there.

III. The operations of the factory were carried on in two two-story frame buildings, each 20 feet front by 40 feet deep r. near which were several small .one-story log or frame houses? which were put to Various uses, more or less connected with the business of the factory. The value of the two-story buildings did not exceed $3,000. The average number of persons employed in connection with the factory in 1869 was twenty-five. '

IV. On the 22dmf December, 1869, the United States marshal for the western district of Arkansas, acting under orders from the supervisor of internal revenue at Little Bock, Arkansas, caused the said factory and its contents to be seized? took the same into his possession, stopped the operations of the factory, and placed the premises under the guard of two of his deputies, who held possession thereof for the period of about four months and twenty-five days. This seizure was that which was involved in “The Cherokee Tobacco” Case? which was before the Supreme-Court of the United States, and is reported in 11 Wallace, 616.

V. The property which was so seized was as follows: Two' hundred and seven half-pound papers smoking tobacco, forty-four one-fourth pounds tobacco, four thousand five hundred pounds leaf-tobacco, three thousand pounds tobacco in lump? three hundred empty boxes and caddies, six stoves and pipes? two drums for stoves, three hammers, one hatchet, one can sweet oil, two cropping brooms, four hundred and sixteen pounds liquorice, four hundred ?nd eighty-two pounds sugar? five pounds sealing wax, wrappers for smoking tobacco, brass for stencils, seventy stencil brands, two pitchforks, one ash bucket, shovel and poker, one hundred and twenty-seven packages of tobacco, one hydraulic press, one hydraulic pump, six retainers, one large platform scales, one p’r small platform scales, one pair lever scales, four small rollers, twelve sets moulds, eight screw presses, four levers, thirteen segment caddy blocks, eighteen segment-caddy bands, one large hydraulic wrench, eight small wrenches, twenty-one iron bars *718for track, one retainer for truck, lot fishing irons, lot mould tin, one weight, one liquorice kettle, stove and pipe, one hydraulic lever, one press and fixtures, for manufacturing smoking tobacco, one large inclosed tub sieve, one common tobacco sieve, twenty-one sinkers, and two factory buildings used as a tobacco factory, and out houses connected therewith.

YI. The said property was libeled in the United States district court for the western district of Arkansas, where the claimant filed his claim and answer, claiming the same, and issue was made upon the libel, claim, and answer, and submitted, May 16, 1870, to a jury, who found the following verdict: “We, the jury, find the issues for the jfiaintifi, and that the said property became forfeited tcf the United States in m anner and form as in said libel of information alleged ”; whereupon the court ordered, sentenced, and decreed the condemnation of said property as forfeited to the United States and the informer, and that the same should be sold under a *venditi-oni exponas.*Thereupon the claimant asked leave of the court to bond the following portion of said property, to wit: the machinery used at said factory,.the leaf tobacco and raw material in said factory, and the axes, hoes, hammers, and implements mentioned in the libel; and such leave was granted; and the claimant thereupon filed in said court a bond for the value of said property; and by agreement between him and the attorney of the United States it was by the court ordered that all of said property that was not bonded should be sold, and that a *venditioni exponas*should issue therefor.

VII. There were sold under *venditioni*exponas, in pursuance of said order, 207 half-pound papers of smoking tobacco, 44 quarter-pound papers of smoking tobacco, and 127 packages containing 2,540 pounds of chewing tobacco. 4-h the rest of the personal property seized was delivered back to the claimant. The buildings and outhouses were also delivered up to him, they having, on the day of the trial aforesaid, been dismissed by the attorney of the United States, with the consent oí the court.

Tt does not appear that the said buildings and outhouses, or any of them, were, while in the custody of the marshal’s deputies, subjected to any damaging treatment; but they were, when delivered up to the claimant, in as good a condition as when seized, ordinary wear and effects of weather excepted; *719and tbe machinery, tools, implements, and other personalty contained in them were, when returned to him, in as good a condition as when seized, except' rust and any other effects which would necessarily result from their non-use during the period of the seizure.

VIII. Thé 4,500 pounds of leaf tobacco seized were, when seized, of the value of $675. During the period of the seizure that tobacco underwent the process of sweating, whereby a considerable portion of it became worthless. After the release of the property from seazure, the claimant’s employés packed the best of that tobacco in hogshéads and sent it to Saint. Louis, Mo., where it was sold, and did not realize more than enough to pay the expenses on it. The whole 4,500 pounds of that tobacco were lost to the claimant.

• IX. The selling price and market value, on the 22d of December, 1869, at said factory, of the manufactured tobacco which was afterwards sold under *venditioni*exponas, as stated in finding VII, was $1,147.25 if no internal-revenue tax had to be paid thereon; but if such tax had to be paid, its value was $292.21.

X. It does uot appear what was the value of the other personal property seized, and which was bonded by and returned to the claimant, as set forth in findings VI and VII.

XI. In addition to the items of.'$675 and $1,147.25, set forth in findings VIII and IX, the loss inflicted upon the claimant by reason of the seizure of said factory, its detention, and damage to it whilst under seizure, was $300.

XII. In 1870 and 1871, the claimant was in Washington, several times probably, on business connected with “The Cherokee Tobacco” Case. What expenses he was put to in coming to and returning from W ashington, and while sojourning there, in those years, on that business, does not very definitely appear ; but the court finds that he paid on that account the sum of $1,000.

XIII. In 1870, the claimant paid $150 to attorneys in Washington, D. C., for services connected with the matter of said seizure.

The expense of employing counsel to argue “The Cherokee Tobacco” Case before the Supreme Court of the United States was paid, not by the claimant, but by the Cherokee Nation; *720and it does not appear that he was under any liability to refund to said Nation the amount so paid by it.

It does not appear that the claimant paid any expenses in the defense of that case in the United States district court in Arkansas.

XIV. The decision of!i The Cherokee Tobacco ” Case was rendered by the Supreme Court of the United States May 1,1871.

After that the claimant came to Washington for the purpose of obtaining relief through Congress.

From January 11, 1876, to June 30, 1879, he was employed, during the sessions of Congress as clerk of the Committee on Private Land Claims of the House of Representatives, and during that period he received pay as such clerk to the amount of $4,972.

It does not appear how many times the claimant came to-Washington between the date of the decision of “The Cherokee Tobacco” Case and that of his first appointment as clerk of said committee; nor how long he remained in Washington at any time between those dates; nor what expenses he was-subjected to in coming to, sojourning in, and returning from Washington in that period of time.

XV. It does not appear that any tobacco belonging to the claimant was seized, except that taken from his factory, asset forth in findings IV and V.

XVI. The profit to be made on tobacco manufactured at said factory depended on the claimant’s being able to sell it in the Indian Territory, free from the internal-revenue tax to which such tobacco was then subjected by law. If that tax had to be paid on it, the manufacture of tobacco at said factory could not have been carried on, either before or after the seizure aforesaid, without a loss to the claimant.

*Mr.*IV. IV. *Wilsliire*and *Mr. John Paul Jones*for the claimant :

The only question for the judgment of this court, under the act of Congress, is the determination of the amount of the losses sustained by the claimant by reason of the seizure of his tobacco factory, consisting, 1st. Of the amount of tobacco manufactured and unmanufactured, and other property seized and taken from him. 2d. The damage done to the machinery, and *721other property constituting his factory, while under seizure. 3d. The loss of the profits of said factory sustained by the claimant in consequence of being deprived of the use thereof, while in the possession of the marshal. 4th. The expenses to which he was subjected by reason of said seizure, including the costs of his efforts to secure redress therefor.

The *Act of June*4, 18b0, eh. 123 (21 Stat. L., 544), referring the claim to this court, says that “the said Elias"C. Boudinot be, and he is hereby, authorized to bring suit in the Court of Claims against the United States Government, to recover what may be due him in justice and equity for the loss inflicted upon him by reason, of said seizure.”

To ascertain that loss imposes upon this court the duty of the investigation and determination of the claimant’s entire loss on account of the seizure of his factory and other property, as above stated.

We contend that this act,- by its own terms, requires the broadest and most liberal consideration of the evidence in this case in favor of the claimant, in order that he shall recover the full value of *all*his property seized, at the time and place where the same was taken, together with all the damages done and expenses incurred by him in consequence of such seizure. The language is, “to recover what may be due to him in justice and equity, for the loss inflicted upon him by reason of said seizure.” We contend that the terms “loss inflicted” are the controlling words of the act, so far as the amount of property to be estimated in ascertaining the claimant’s loss is concerned. The words following those two are merely descriptive of the several items of losses sustained by him. ' So' that the clear import of the words “loss inflicted,” construed in their ordinary sense, includes all of his actual losses, &c.

That, we submit, was the intention of Congress in the passage of the act, and the intention of that legislation was apparent upon the face of the act. Every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of Congress. *(WilMnson*v. *Leland et*al., 2 Pet., 662; also, 3 Dali., 365.)

The law is the best expositor of itself. *(Pennington*v. *Goxe,*2 Cranch, 33; 1 Black, 358.)

The surrounding circumstances will be considered to give a *722construction to an act of Congress. *(Lessieur*v. *Price,*12 How., 59.)

The preamble of an act may be resorted to to aid in the construction of the enacting clause, where any ambiguity exists. *(Beard*v. Rowan, 9 Pet., 301.)

So, *too,*the debates in Congress may be considered to ascertain the intention of that bodyin making a grant, or in passing an act for relief. *{Blake*v. *National Bank, 23*Wall., 307.)

If there be any doubt as to the intention of the legislation, and that intention cannot be satisfactorily ascertained from the terms of the act, nor from the preamble, if there be any, the court will consult the journals and debates of the Legislature to ascertain the meaning of the act. (91 TJ. S. It., 72; *United States*v. *Webster,*Dis. of Me., 1840, Davies, 38.)

Acts of Congress are to be construed by interpreting the words in their plain and actual meaning, and in such a way, if possible, as to carry into effect the whole statute.

The supreme court of Ohio held that “aspecial act authorizing the complainant to file a bill, as in chancery, against the State, and requiring the cause to be decided upon principles of justice and good faith, will be construed as intending tore lieve the complainant from all technical objections that might arise in a proceeding according to known usages of law and chancery, and as conferring power upon the court to examine the claim in the spirit of liberality, which would be proper for the general assembly to exercise. *{Morriss Seely*v. *The State,*31 Ohio (Stanton), 501.)

This court held in the *Farden Case*(13 C. Cls. Tí., 347) that if the meaning of a statute can be satisfactorily gathered from the whole language of the act or section, taken in connection with the manifest object designed to be accomplished, it is not necessary to give to every word its exact signification as an independent word when it would be inconsistent with other words and other parts of the same statute.

We contend that the only construction that can be placed upon the words “lossinflicted” taken in connection with maniifest object and design to be accomplished by the act, interpreted in the light of the debates in the Senate upon its passage, is that the claimant is entitled to recover the value of all his property actually seized and disposed of by the United States marshal, as shown b3r the testimony of the witnesses in *723the ease, independent of the return of the marshal, which is shown to have been based entirely'upon reports made to him by his deputies, and not from any personal Knowledge of his own. The interpretation of the act we contend for seems to us to be the only one' that is at all' in harmony with either the terms of the act or the manifest object and design to be accomplished by it. Any other construction would amount to allowing the claimant to recover for only a part of the loss he sustained by reason of the seizure.

The direction of Congress in referring a claim to this court must be followed. *(HasJcell*v. *United*States, 9 C. Ols. R., 414.)

In that case this court held that, *u*Congress not having directed this court to adjudicate the claim upon its merits, without regard to any technical defense, and there being no facts which- justify the interposition of equitable relief to prevent fraud or injustice,” the petition should be dismissed.

We insist in the case at bar that the authority of the Act of June 4,1880, “ to recover what may be due him in justice and equity for the loss inflicted,” is a direction to this court to adjudicate the' actual loss sustained .by the claimant, without regard to any technical *defense;*that is to say, to ascertain, from all the testimony before the court, the amount of the actual loss of the claimant by reason of the seizure of his factory and other property. To do this that amount must be ascertained by an examination and consideration of all the testimony, and not confined to that only shown by the marshal’s returns, which, as we have before stated, is shown by the un-contradicted testimony of witnesses knowing the facts were false, and did not show the whole amount of property actually seized and taken from the claimant. To confine the inquiry to the marshal’s returns would be to allow the claimant to recover for only a part of the *“*loss inflicted ” upon him. That was not the intention of Congress in the passage of the act referring the claim to this court. The command of that act is to recover, the actual loss upon the principle of justice and equity. To allow the claimant to recover less than the whole loss sustained by him, as shown by the testimony of those witnesses, whose relations to the property seized were such as to enable them to know the amount of property seized and its value, would not comport with the principles 'of either justice or equity.

*724It has been held by this court that “it is the peculiar duty óf Congress to understand the wants of the country, and what is equitably due the citizen, and, within constitutional limits, to legislate accordingly.

WJien Congress refers claims like this to this court to decide the amount of the loss of the claimant, or “whether any, and if any, what amount is due,” the Supreme Court holds that Congress intends by such legislation to refer to the adjudication of the Court of Claims the amount of compensation to' which the claimants were entitled. *(Roberts et al. v. United-States,*92 *U.*S. R., 41; 6 0. Cls. R., 84.)

By the strict rules of the common law of England, the returns of an officer could not be contradicted by plea or proof,, the only remedy in case of a false return being by action against the officer for damages. But in this country that rigid rule has been relaxed, and under certain circumstances a contradiction of the officer’s returns has been permitted. The-grounds upon which this modification has been upheld is, that otherwise very serious injustice might result to party damaged,, for which an action against the officer would be, in many cases, a remedy wholly inadequate. *(Ryan*v. *Lander,*89 Ill., 554; 40 Iowa, 220; 50 Iowa, 215.)

We deem it unnecessary to discuss this latter proposition of law. We contend that, under the act authorizing this suit, we-are relieved of that duty. If that act bears the construction we contend it does, this court, we think, will not permit the claimant to be deprived of a recovery for his entire losses, as shown by the testimony of witnesses, because the returns of the marshal show a less quantity of tobacco seized than what is shown by that testimony to have actually been seized.

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*the-Assistant Attorney-General) for the defendants:

l; The claimant has not been resident within the Cherokee Nation for twenty-fire years; the factory was a partnership affair between himself and two citizens of Missouri, the latter furnishing the capital and managing the business; the tobacco-to be manufactured was the product not of the Indian Territory but of the States, and the market for the same was also in the *725•States. Clearly this factory was not within section 10 of the *Treaty of July*19, 1866 (14 Stat. L'., 799), which provides:

Every Cherokee and freed person resident within the Cherokee Nation «hall have the right to sell any products'of his farm, including his or her live stock, or any merchandise or manufactured products, and to ship and •drive the same to market without restraint, paying any t.ax thereon which is now or may he levied hy the United Staces on the quantity sold outside the Indian Territory.

2. The *Act of June*4,1880, ch. 123 (21 Stat. L., 544), referring claimant to this court, is based upon the proceedings in condemnation whichreached the Supreme Court, reported in 20 Wallace, 616. The “said seizure” for which relief is afforded in the enacting clause is the one set out in the preamble, the *rem*which was in litigation, and it is therefore incompetent for claimant to prove property in other seizures to which he made no claim at the time.

3.'The return of the marshal is conclusive upon him as to the amounts seized. Congress meant to compensate him only for losses resulting from the authorized acts of our officers, uot for alleged thefts committed by deputy marshals, nor for injuries resulting from acts of the marshal .of which official report has not been received. . Claimant should not have judgment.for more than $2,750.

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

On the 11th of August, 1866, the President of the United States proclaimed a treaty which" had been entered into between the United States and The Cherokee Nation of Indians (14 Stat. L., 799), the tenth article of which was in these words:

> Every Cherokee and freed person resident in the Cherokee Nation shall have the right to sell any products of his farm, including his or her live stock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax which is now or may he levied hy the United States on any quantity sold outside of the •Indian Territory.

In the year 1867 the claimant was the proprietor of a tobacco factory in the Indian Territory, which was enlarged in the following year, and the same was in operation in the years 1867,1868, and up to the 22d of December, 1869.

*726By section 107 of the Act of July 20, 1868, *“imposing taxes on distilled spirits and tobacco, and for other*purposes” (15 Stat. L., 125, 167, ch. 186), it was enacted—

> That the internal-revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars, shall he held and construed to extend to such articles *produced anywhere within the exterior boundaries of the United States,*whether the same shall he within a collection district or not.

It was in virtue of this provision that, on the 22d of December, 1869, the claimant’s factory, notwithstanding the above treaty stipulation, was seized for a violation of the internal-revenue laws in selling manufactured tobacco *in the Indian Territory*without the internal-revenue tax having been paid on it.

The property seized was libeled in the United States district court for the western district of Arkansas, where the claimant appeared and claimed it, insistin g that the Act of July 20,1868, did not repeal or abrogate the treaty stipulation, nor take away from the Cherokee people any of the rights or privileges secured to them by that stipulation.

At the trial of the case the district court refused to sustain this position; a verdict was rendered by a jury in favor of the United States, and the property seized was condemned by a decree of the court as forfeited, May 16, 1870.

The case was taken by writ of error to the Supreme Court of the United States, where, after argument by able and eminent counsel for claimant, and by both the Attorney-General and the Solicitor-General for the Government, in which, the court said, “ a remarkable wealth of learning and ability had been expended in the discussion,” the decree of the district court was affirmed, May 1,1871.

Mr. Justice Swayne, in delivering the opinion of the court, said:

> We are glad to know that there is no ground for .any imputation upon the integrity or good faith of the claimants who prosecuted this writ or error. In a case not free from doubt and difficulty, they acted under a misapprehension of their legal rights. * * ***If a wrong has been done, the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief.

Sustained by this indorsement of that august tribunal the claimant, on the 12th of November, 1877, petitioned Congress *727for relief, setting up in bi§ petition claims aggregating more than $96,000. Congress on the 4th of June, 1880 (21 Stat. L., 544, ch. 123), passed the following act:

> AN ACT to permit Elias C. Boudinot, of the Cherokee Nation, to sue in the Conrt of Claims.

> Whereas the United States by the enactment of the one hundred and seventh section of the act of Congress.approved the twentieth day of July, anno Domini eighteen hundred and sixty-'eight, superseded the tenth section of the treaty entered into by and between the United States and the Cherokee Nation on the nineteenth day of July, anno Domini eighteen hundred and sixty-six; and

> Whereas the property of Elias C. Boudinot, a Cherokee Indian, was seized and disposed of by the authorities of the United States in consequence of the enactment of said one hundred and seventh section, although the Supreme Court of the United States in its opinion expressed in the ease prosecuted by said Elias C. Boudinot to test the constitutionality of said one hundred and seventh section and the validity of the said seizure and disposition of his property, and reported in eleventh Wallace, United States Supreme Court Reports, page six hundred and sixteen, entitled *“*The Cherokee Tobacco',” declared * that there was no ground for any imputation upon the integrity or good faith of” him, the said Elias C. Boudinot; and, further, that it is to be presumed that if a wrong has been done to him, the said Elias C. Boudinot, the Congress of the United States will promptly give the proper relief if applied to by the said Elias C. Boudinot; and

> Whereas the Supreme Court of the United States was not called upon to decide, and did not decide, whether the exeerrtive officers of the United States had taken the necessary steps to make operative said one hundred and seventh section in said Cherokee Nation anterior to said seizure of the property of said Elias C. Boudinot; and

> Whereas there is grave doubt that such steps were taken, and it manifestly appears that a wrong has been done to said Elias C. Boudinot, in consequence of the casual infraction of the said treaty, which should be repaired by appropriate satisfaction in maintenance of said treaty, which still subsists; Now, therefore,

> *Be it enacted by the Senate and Souse of Bepresentatives of the United States of America in Congress assembled,*That in order to give Elias C. Boudinot, of the Cherokee Nation, the proper relief for the wrong done him by reason of said seizure and disposition of his property, he, the said Elias C. Boudinot, be, and he is hereby, authorized to bring suit in the Court of Claims against the United States Government, to recover what may be due to him in justice and equity for the loss inflicted upon him by reason of said seizure for an alleged violation of the internal-revenue laws, of his property, a tobacco factory, its detention, and dama'ge thereto whilst under seizure, the value of the tobacco, material, and other personal property also seized, and the expenses to which he was subjected thereby.

> Approved, June 4, 1880.

*728Under this act tlie claimant, on the 17th of June, 1880, filed his petition in this court, asking judgment for $98,050,* and on the 8th of February, 1883, he filed an amended petition praying judgment for $175,000. The claim presented to us is, therefore, one of unusual magnitude, and, in some of its aspects, of more than ordinary importance.

In no instance, probably, in the history of this court has a special act authorizing a party to sue the United States here been couched in terms so liberal to the claimant as those of this statute.

It removes any ground for questioning the right of an Indian to sue in this court, and gives jurisdiction to this tribunal, which it would not otherwise have, of a claim against the Government based on an alleged tort committed by its officers.

It goes further, and declares an act done by the internal revenue officers of the Government, which had been sustained by the verdict of a jury and the decree of a United States district court, affirmed by a solemn judgment of the Supreme Court of the United States on a grave constitutional question, to have been “ a *wrong*done” to the claimant.

And it goes still further, and authorizes the claimant “tore-cover what may be due him *injustice and equity,*for the loss inflicted upon him” by the seizure of his property, though the perfect legality of the seizure was sustained by the judiciary appointed under the Constitution and laws to decide the matter of controversy involved in that proceeding.

There seems, therefore, nothing for this court to do in the case but merely assess the amount due the claimant “in justice and equity for the loss inflicted upon him.” So far as we are enabled to see, there is no question of law to be decided, except as to the duty imposed on us; which, it seems to us, is merely that of a jury selected by both parties to perforin a single function.

When Congress, in its wisdom, sees fit to pass an act of such marked beneficence toward an individual, it would ill become this court to try his case in any other than an enlarged and liberal spirit. We have been conscious of no other in the investigation we have made and the results we have reached.

We do not deem it necessary to go into a discussion of the evidence, but will present some brief remarks in relation to the items of the claim urged by the claimant’s counsel.

*729The libel in the district court proceeded against 4,500 pounds of leaf tobacco, among othe'r things, and the marshal returned that he had seized that quantity. The claimant alleges, however, that, in fact, a very much larger quantity was seized. In his petition to Congress 'he stated the quantity at 122,000 pounds, worth $19,540; in his original petition in this court, sworn to by him, he stated it as 95,000 pounds and the value $14,250; and in his amended petition, also sworn to by him, he put it at 150,000 pounds,' and the value at $37,500. The difference between any one of these amounts and that returned is so extraordinary as to challenge the most careful scrutiny of the court 5 particularly when to find any quantity above 4,500 pounds would stamp the marshal’s return with falsehood; and that, too, in a collateral proceeding to which he is not a party, and in a forum where he does not, and could not, appear to defend his official acts. ,, x

By every rule of law, by every principle of “justice and equity,” the marshal’s return must be received as *prima facie*"true. The claimant undertook to prove that, in fact, it was not true. After exhaustive examination of the whole evidence bearing on this point, we did not hesitate to hold that not only is not the marshal’s return falsified, but that it is clearly and fully sustained; and on the grounds stated in finding YIÍI, we allow the claimant the value of the 4,500 pounds of leaf tobacco, $675.

In regard to the manufactured tobacco sold under *venditioni exponas,*as stated in finding VII,'it is found in finding IX that the selling price and market value of it, at the factory, at the time of the seizure, if no internal-revenue tax had to be paid •on it, was $1,147.25; but, if that tax had to be paid, the value was $292.21. Believing it in consonance with the spirit of the act, we allow the.former sum, rather than the latter.

These items of $675 and $1,147.25 cover all the values of personal property seized, so far as values were proved. The value of the other personalty seized, and bonded by, and returned to, the claimant, as stated in finding X, does not appear.

Th,e act authorizes the claimant to recover the loss inflicted upon him by reason of the seizure of -the tobacco factory, its detention, and damage thereto, while under seizure; and in finding XI we fix that at $300, which we consider a fair estimate.

*730The claimant demands $36,000 for prospective profits on Ms leaf tobacco, which he claims he would have made if he had been allowed to manufacture and sell the tobacco. In reference to this we have only to refer to finding XYI, where it is stated that the profit to be made on tobacco manufactured at the claimant’s factory depended on his being able to sell it in the Indian Territory free from the internal-revenue tax to which such tobacco was then subject by law; and that if that tax had to be paid on it, the manufacture of tobacco there could not have been carried on, either before or after the seizure, without a loss to the claimant. Manifestly, this leaves no basis on which to compute any prospective profits; for it cannot be at all questioned that, after the day of the seizure, the tax would, under the then existing law, certainly have been imposed and demanded by the internal-revenue officers.

The next item of the claim is *$6,823, for*so many pounds of “a fine quality of manufactured chewing tobacco,” which he avers were wrongfully and unjustly seized by the revenue officers “at Fort Sill, Tahlequah, and Fort Gibson, and in transit from the factory to those places and other points in the Indian Territory.” About the time of the seizure of claimant’s factory quite a number of other lots of tobacco were seized in that Territory, and taken to Yan Burén, Ark., and there libeled in the United States district court, at the same time as that taken from claimant’s factory. Not a pound of all those lots did the claimant set up any claim to in that court. Is it conceivable that while he was there asserting his rights to- the property seized at the factory, he would have stood by absolutely silent as to the rest, if it had been in fact his property? We think not. We had no difficulty in embodying in finding XY our conclusion, that “ it does not appear that any tobacco belonging to the claimant was seized, except that taken from his factory, as set forth in findings IY and Y.”

The next item demanded is $4,109, styled in the brief of counsel “living expenses”; which is explained tornean the greater cost of his living in the city of Washington, at periods between December, 1869, and June, 1880, than he would have incurred if he had lived at his place of residence in Arkansas. The arithmetical process by which that sum is computed is this t Between those, dates Congress was in session 283 weeks; all that time the claimant was in Washington; it cost him $9,081 *731more to live there in those 283 weeks, at some $5 a day, than it would have cost him to live at home at $3 a week; from that sum deduct $4,972 which he received as clerk of the Committee on Private Land Claims of the House of Eepresentatives, and the balance in-his favor is $4,109.

Whatever proper expenses the claimant incurred in coming to Washington on business connected with said seizure and with the defense of “ The Cherokee Tobacco” Case, we think he should recover. The evidence as to-those expenses is meager and inconclusive; but,-in the exercise of what we regard as a permissible and liberal discretion, we allow him $1,000 on that account.

' Ought he to be reimbursed his expenses of travel and subsistence, incurred *after*that case was decided, May 1,1871 ? We think not. After that, if he saw fit to go to further expense-in appealing to Congress for relief, such outlay was not a necessary or direct result of the seizure of his factory, but of his voluntary effort to obtain from that body, through mere grace and favor, some relief from the annihilation of his case by the highest judicial tribunal of the land. This is not an expense to-which he was “subjected” by the seizure; and therefore is not a thing that we are required by the terms of the act to allow. The national treasury ought not, we think, “in justice and equity,” to be charged with the subsistence in Washington of a claimant seeking special legislation to relieve him from the consequences of his own violation of law, even though the violation had been committed “ under a misapprehension of his legal rights.”

The next item in the claimant's demand is $2,200 for “traveling expenses.” In regard to this we. need only say that the allowance of $1,000 in finding XII covers liberally, as we think, all such expenses incurred by him in 1870 and 1871, in connection with the seizure and with the defense of “ The Cherokee Tobacco” Case, and that he is “in justice and equity”" entitled to no more.

The only remaining item of his claim, $150 paid to attorneys,, was a necessary expense, and is fairly allowable.

Our verdict, on the facts found, is in favor of the claimant,. as follows:

> 1. For the value, when seized, of 4,500 pounds of leaf tobacco.. $675 00'

> 2. For the value, when seized, of the tobacco sold under *ven-ditioni*exponas... 1,147 36-

> *7323. For the loss, in addition to those two items, inflicted on the claimant by reason of the seizure of his factory, its detention, and damage to it while under seizure. $300 00

> *4.*For expenses incurred. 1,000 00

> 5. For amount paid attorneys. 150.00

> Total. 3,272 25

The judgment of the court is that the claimant recover this total amount.