#### CONES’S CASE. William W. Cones et al. *v.*The United States.

*On the Proofs.*

*In a suit under the*Abandoned or captured property Act *a quartermaster’s accounts are produced to show the sale of the property and the receipt of the monea ; hut they do not shoio that he paid the money into the Treasury, nor that he expended it for the use of the Government.*

I. Where a quartermaster’s accounts show that he sold captured property and received the money for it, and show nothing more, they merely establish the fact that he received and debited himself with the money. If it does not appear that he has been credited for the money by the Treasury, it cannot be deemed to be constructively in the Treasury.

II. The Supreme Court, in *Orussell’s] Case,*(7 C. Cls., 276,) affirms the doctrine of *Alee Henry’s Case,*(6 id., p. 389,) that where captured property is traced to a responsible officer whose duty it was to transmit it, and a fund is shown to he in the Treasury, which may have been derived in whole or in part from the property, a legal presumption arises which connects the two established facts, namely, the fact of capture, and the fact of a fund derived from captures. Beyond this the rule of legal presumption cannot be carried.

III. In cases under the *Abandoned or captured property Act,*the existence of a fund in the Treasury, actually or constructively, is a jurisdictional fact forming the basis of the suit.

*Mr. C. F. Peck*for the claimant.

*Mr. Alexander Johnston*(with whom was the *Assistant Attorney-General)*for the defendants.

Nott, J.,

delivered the opinion of the court:

In this case the proof shows that the captured property was sold by a quartermaster shortly before the passage of the *Abandoned or captured property Act.*The officer’s accounts are produced so far as to show the sale, but at that point they stop. They do not show that he paid the money into the Treasury, nor that he expended it for the use of the Government. They merely establish the fact that he officially received 'and debited himself with the money. In previous cases, where the *330fund has been held to have been constructively paid into the Treasury, it has appeared that it was lawfully expended in the service of the *Government.*— Hudnal's *Case,*(3 C. Cls. R., p. 291.) We are of the opinion that the existence of the money in the Treasury actually or constructively is a jurisdictional fact forming the very basis of the suit, and that it cannot be left to inference or presumption. In cases where the captured property has been traced to a responsible officer of the Government, whose duty would have been to transmit it, and a fund has been shown to be in the Treasury which may have been derived in whole or in part from the capture, there the Supreme Court has held that a legal presumption does arise which connects two established facts, viz, the fact of capture, and the fact of a fund derived from *captures.*— Crussell's *Case,*(7 C. Cls. R., p. 276.) And this court had previously held the same.— *Ake Henry’s*Case, (6 id., p. 389.) Beyond this we do not feel warranted in carrying the rule of legal presumption.

The case will be remanded to the trial docket for further evidence as to the disposition of the fund derived from the sale of the captured property.