#### TERRY & CARNES’ CASE. James C. Terry, survivor, *v.*The United States.

*On the Proofs.*

*In August,*1862, *one hundred and ninety-two hales of cotton are captured in Mississippi. Part of tlie proceeds are paid into the Treasury in November,*1862, *and the remainder are accounted for by an officer of the Quartermaster Department in his settlements xvith the Treasury in January,*1863. *Twenty-six bales are lost*iii transitu *by a railroad company. Ten bales go into the possession of a forwarding-house, andaré never accounted for. The Government neglects to prsoeeute these demands against the railroad and the forwarders.*

I. The Court of Claims lias jurisdiction of an action for tlie proceeds of captured property in the Treasury, although, the capture and the payment into the Treasury were both prior to the passage of the *Abandoned or captured property Act.*

II. The Government is not liable for the proceeds of captured property, or its value, where it has neglected to pmosecute shippers and forwarders who have had such property in their possession, as its agents, and have failed to account for it; but, in such a case, the judgment of the court will be rendered without prejudice to the equitable interests of the claimants in the lost property.

*The Reporters’*statement of tlie case.:

The court found the following facts:

The claimant and one James A. Carnes were partners in the business of filan ting and raising cotton in the State of Mississippi during the years 1861 and 1862. The said Carnes has since died, and the claimant is his surviving partner.

In August, 1862, the Array of the United States, stationed at Helena, Ark., captured and seized one hundred and ninety bales of cotton in the State of Mississippi belonging to Terry & Carnes. Eleven bales thereof were burned while in the possession of the defendants’ quartermasters. One hundred and seventy-nine bales were mingled with twenty-one bales of cotton belonging to other persons, so that the identity of the claimant’s portion was lost, and the whole was shipped by the quartermaster at Helena to New York, Forty-eight bales thereof were sold for $11,295.20 net, which proceeds were paid into the Treasury in November, 1862. One hundred and sixteen bales were sold by Captain Winslow, United States quartermaster, for $24,976.95 net, for which proceeds he accounted to the Treasury in January, 1863. Twenty-six bales were lost *278*in transitu*by tbe Illinois Central Bailroad. Ten bales went into the possession of the forwarding-house of D. Able & Oo. The defendants have never prosecuted these demands against the railroad and Able & Co., and no proceeds of such thirty-six bales are in the Treasury.

The property was captured property of private citizens, noncombatants on the land, not in the immediate viciuity of any army, and not captured to prevent it from falling into the hands of the enemy or to be used in war. It must be regarded as property captured to save it for the benefit of any loyal owner. It was property of the description covered by the act of March 12, 1863, and by that of July 17, 1862. It was not paid into the Treasury in fact, because there was no law then to meet just such a case, and should have been held for the action of some tribunal, or until the passage of the captured and abandoned act, or other act of the Government passed to meet such a case. After the passage of the act of November 12, 1863, it should have been paid into the Treasury.

It was used by the Quartermaster Department to avoid drawing on the Treasury for the like amount. If the Quartermaster Department was bound to hold it for the rightful owner or for the future action of the Government, then surely the claimants are entitled to it in this suit. The law will regard that as done which ought to have been done, and treat these proceeds, for the purposes of this suit,'as in the Treasury. This isa maxim peculiarly applicable to the Government, which cannot be guilty of laches or charged with any wrong.

The property was captured or taken by the military under the *Act July*17, 1862, and it comes within the purview of the *Act March*2, 1864, relating to captured and abandoned property. It being thus taken, no quartermaster or other officer of the Govemmeut had any right to'sell it, use, or dispose of it. He must hold it subject to condemnation and sale by proceedings in court, under the seventh section of that act. It was only by such proceedings that the United States could get any title to it; and until it was so condemned as enemy’s property for giving aid and comfort to the rebellion, it was held subject to any legal principles that might follow from a pardon or amnesty, under the fourteenth section of the act. The title to it was in no way changed by the capture and sale until after such con*demnation.*— Klein, *Adm’r,*v. *The United States,*7 0. Cls. B., *279p. 240; *The Morris Cotton,*(8 Wall., 512;) *McVeigh*V; *The United States,*(11 Id., 266, 267.)

The Government having converted the cotton into money without authority, must be required to hold it subject to the rights of parties entitled to it. If, then, it was in fact now on hand, and not technically in the Treasury, a fund in court or in the hands of some quartermaster, the court would, in a proper proceeding, order it into the Treasury for the purpose of awaiting proceedings in the mode now attempted in this *suit.*— Mrs. *Alexander’s*Cotton, (7 O. Cls. R., p. 205.) But it is not a fund in court, nor in the hands of any quartermaster, hut it went into a general fund of the Government and took the place of other money in the Treasury in the payment of the legitimate expenses of the Government. This will be presumed until the contrary appears. Indeed, it is so *stated.*— Pugh v. *The United States,*(5 C. Cls. R., 119;) *King*v. *Haiolcins,*(10 East, 210;) *Williams*v. *Bast Ins. Co.,*(3 Id., 199;) *King*v. *The Inhab. of Kol-singfield,*(2 M. & S., 561.)

The case of *Barringer*(3 O. Cls. R., 361) has determined that a recovery may be had for property taken and sold by the Government and used by it prior to March 12,1863. And this also results from the general principles above stated that forbid the forfeiture of private property of non-combatants.

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

Nott, J.,

delivered the opinion of the court:

No question of law is presented by this case which has not been heretofore considered and determined; and the only question of fact goes to the quantity of cotton which the claimant contributed to a common fund.

There is some conflict of testimony as to the number of bales which were brought to Helena, but the overseer of the owners, and the secretary of the officer who ordered the seizure — the two witnesses likely to be best informed — unite in fixing one hundred and ninety bales as the probable number. Of these it is proved that eleven bales were burnt, and the remaining one hundred and seventy-nine bales were mingled with twenty-one bales of other cotton, and in the mass lost their identity.

The mass of two hundred bales was shipped by Captain F. *280S. Winslow to New York. One hundred and sixteen bales arrived there and were sold. The proceeds, $24,976.95, were transmitted to Captain Winslow, and he accounted for them to the Treasury in January, 1863. Forty-eight bales were sold by a special agent of the Treasury, bringing $11,295.20, which was paid into the Treasury in November, 1862. Twenty-six bales were lost by the Illinois Central Kailroad, and ten bales were received by the forwarding-house of Able *&*Co., at Cairo, and have never been accounted for.

The one hundred and sixty-four bales sold brought $36,272.16, which is the fund that must answer to the owners of the cotton in the proportion which each contributed to the mass. Ordinarily, in such cases, judgment is rendered for the number of bales which were contributed, and the reduction occasioned by the loss is made in the price awarded. Eut in those cases the loss has been regarded as final, while here there is a subsisting cause of action against the parties who occasioned the damage; therefore, the reduction will be made from the quantity of the cotton, and not from the price. It is to be understood that the claimant is adjudged to have been the owner of one hundred and seventy-nine bales, shipped from Helena, but the judgment of the court will be:

That the claimant recover the proceeds in the Treasury of 146.78 bales of cotton, at the rate of $221.15 per bale, amounting, in the aggregate, to $32,460.39, without prejudice to his equitable interest in twenty-six bales of cotton lost by the Illinois Central Eailroad, and ten bales of cotton retained by the house of Able *&*Co.

Drake, Oh. J.,

dissenting:

I am unable to concur in rendering a judgment for the claimant in this case, because, in my opinion, this court has no jurisdiction of any claim for property captured and sold prior to the passage of the *Act March*12, 1863.