#### James Tait, for the use of Browning, *v.*The United States.

*On the Proofs.*

*Claimant is a, loyal, naturalized citizen, residing at Mobile. In*1862 *he purchases eottouin the country, and brings forty-six bales to Mobile-in,*1864. *>Shortly before the capture of the city in*1865, *to prerent it from being destroyed by the rebels, he causes it to be put on board a schooner and removes -it up the river. After the capture of the city of Mobile by the X'nion forces -it is relumed to the city, seized by the authorities of the X'niied States, sent to Mew York, sold, and the net proceeds paid into the Treasury. The forty-six bales of cotton are brought back in the schooner, and they remain in the possession of the claimant until seized. Mb one else prefers any claim to the cotton.*

*580"Where forty-six bales of cotton, shown to be the property of the claimant, are placed on hoard a schooner and removed by him, and afterwards the same number in the same vessel are returned and remain in the claimant’s possession until seized, and are claimed by no one else, it is *prima facia*evidence of ownership, and in the ahsenco of countervailing evidence, is sufficient to establish the fact of ownership.

*Mr. Abraham Walceman*for the claimant:

The claimant seeks by this suit, which he brings as trustee for the late firm of Hanford *&*Browning, of New York, to recover the proceeds of forty-six hales of cotton, worth about $12,000, which were seized by the United States military forces at Mobile, Alabama, in May, 1865, and from thence shipped to New York and sold by the officers of the United States Treasury Department.

Janies Tait, a citizen of the United States at the time of the breaking out of the late civil Avar, had been a resident and merchant in Mobile, Alabama, since 1838. For many years previous to the war he had been in the habit of buying goods of the firm of Hanford *&*BroAvning, of NeAv York, and of collecting moneys for them in the South. When the Avar commenced and communication betAveen Mobile and NeAV York was interrupted, ho was indebted to' the said firm of Hanford & Browning to the extent of $13,000. It became impossible for him to remit funds or to pay this debt. He, therefore, upon his oath discretion, took what money he had of this firm and what he owed them and bought cotton with it, for the purpose of securing and paying this debt. He afterwards received a letter from Han-ford *&*BroAvning requesting him to take this course.

The amount thus bought consisted'of fifty-five hales — was bought in November, 1862. The cotton Avas then stored at Pickensville, Alabama, Avhere it all remained until April 3,1864. The storehouse Avhere it was stored was likely to be flooded in spring, and, therefore, about April 1,1864, forty-six- bales of it (being the cotton in question in this suit) were brought to Mobile.. The cotton remained there until about April 1, 1865. Mobile at that time Avas about to fall into the possession of the United States military forces, and the Confederate authorities Avere taking all the cotton in that city out to Orange Grove and there were burning it. The cotton in question was about to share the same fate. Mr. Tait in order to save it obtained per*581mission from tlie Confederate commander to put it on the schooner Thistle and to run it up the river. The order was to run it up the river one hundred miles, but Mr. Tait had it taken up about twenty miles and run into a creek, where it remained until the United States forces occupied the city, when he ordered it to be returned to Mobile. On its return to Mobile the cotton was seized by the .United States military forces and turned over to the United States Treasury Department.

The fact that Mr. Tait claimed to own* this cotton was stated in the bill of lading by which the same was shipped from Mobile. The cotton was sold in New York by Cotton Agent Draper, and the proceeds paid into the United States Treasury.

The loyalty of Mr. Tait and of the claimant and of every party having any interest in this cotton or its proceeds is abundantly proved.

*Mr. R. S. Hale,*special counsel of the Treasury, for the defendants:

There is no sufficient proof of the title of claimant to the cotton in question. The evidence of claimant an'd Browning, being stricken out by statute, was sought to be supplied by additional evidence. This evidence fails to establish the owner-' ship claimed.

The proof of claimant’s loyalty is insufficient. He does not prove that he gave no aid or comfort to the rebellion or to persons engaged in the rebellion. It does not show him to have had any reputation or standing as a Union man. He was engaged in active business at Mobile during the war. His witnesses testify only to private declarations made to them at different times, and to their inferences from declarations.

The fact that Mr. Tait seeks to recover the cotton in this suit for the benefit of loyal northern creditors cannot affect the question as to his personal status. Those creditors are not parties here, nor are their rights at all in jeopardy. Nothing appears but that Mr. Tait is a solvent debtor whose creditors will be paid in any event, and if the case were otherwise it could not influence the action of this court.

*582Casey, Ch. J.,

delivered the opinion of the court:

The claimant, James Tait, is a naturalized citizen of Scotch birth. For many years prior to the rebellion he had resided and was engaged in business at the city of Mobile, in the State of Alabama. In November, 1802, he purchased at Pickensville, in that State, fifty-five bales of cotton, and in the spring of 1801 had forty-six bales of it brought to the city of Mobile and there stored. Shortly.before the capture of the ciby by the Union forces in the spring of 1805, to prevent it from being destroyed by the rebels, Tait had it put on board a schooner and taken up the river inland, where it remained until after the surrender of Mobile to the national forces. It was then returned to the city, where it was seized by the officers of the United States, shipped to New York, and sold there by Mr. Draper, the United States cotton agent, and the net proceeds were paid into the Treasury. This action is brought under the act of March 12, 1803, to recover those proceeds.

The evidence satisfies us that in opinion and sentiment the claimant remained loyal to the United States, and that he did no voluntary act tending to promote the rebellion or to give aid and comfort to it or the jiersons engaged in it. .

The deposition of the claimant in his own behalf, and that of William O. Browning, one of the firm to whom the claim is-assigned, are both suppressed as being interested in the claim and incompetent to testify.

A question Avas made as to the identity of the cotton returned on the schooner Avith that sent up the river. „ We think it can be fairly and reasonably inferred from the evidence that it was the same cotton. At all events, there Avere forty-six bales of upland brought back on the schooner. They are in the possession of the claimant. They Avere not and have not since been claimed by any one else. And this, Ave think, Avithout further proof, would *be prima facie*evidence of OAA'nership, and, in the absence of countervailing evidence, sufficient to establish the fact. ’

This suit Aviis brought on the 24th day .of August, 1865, and within the two years after the suppression of the rebellion, as avo decided more fully at the present term in the case of *Henry*Grossmeyer, (p. 1, *ante.)*The plea of the statute of limitations, therefore, is overruled.

*583Aud a judgment will be rendered in favor of the. claimant for tlie net proceeds of forty-six bales of upland cotton so soon as we shall be more certainly advised in reference to the amount of such proceeds.

And now, to wit, May 22d, 1869; The court, on due consideration of the premises, do find in favor of the claimant, and do order, adjudge, and decree that the said James Tait do have and recover of and from the United States, to the use of John H. Browning and others, executors of John E. Hanford, the sum of eight thousand seven hundred and seven dollars and thirty-four cents ($8,707 34.)