#### Thomas G. W. Crussell *v.*The United States.

*On the Proofs.*

*Seventy-five hales of cotton are seised ly the quartermaster at Atlanta, and with other cotton shipped to Cincinnati to he sold. Before arriving there a portion is destroyed hy fire. Searsay evidence, the opinions of witnesses, and the declarations of the claimant, are offered to prove Ms ownership and loyalty. The opinion of witnesses as to claimant’s loyalty is called out on cross-examination hy the defendants.*

I. The hearsay of others and tlio opinion of the witness are not admissible in evidence as to the loyalty of the claimant.

II. The declarations of a claimant are not evidence of ownership.

III. The acts and declarations of the captors made at the time of capture may be given in evidence.

IY. The opinion of a witness as to a claimant’s loyalty when called out by the defendants on cross-examination will not be stricken out on defendants’ motion.

V. Where *captured*property is traced to the possession of the defendants they are bound to account for it; and where they show the loss of a portion, it will be allowed, and they held for the net proceeds of the balance under *the Abandoned or captured property act,*(12 Stat. L., p. 820.)

*Mr. G. F. Peclc*for the claimant:

Action is brought in this case by claimant for the proceeds of seventy-five bales of cotton, of the aggregate weight of 37,500 pounds, seized in Atlanta, Georgia, by agents of Captain B. M. Hade, assistant quartermaster of the United States Army, a short time before the evacuation of that city by the military forces of the United States, under the command of General Sherman. This cotton was stored in three different lots in the city of Atlanta. A United States officer came with wagons and took it all away, and hauled it to the Western and Atlantic railroad depot, and claimant was told by the party that it was taken by direction of Captain Hade. On account of Captain Hade’s absence no receipts were ever given for any of these lots of cotton, and therefore they do not appear in the returns of that officer.

The ownership of the cotton is proved satisfactorily, even ex-*534eluding tlie testimony of the claimant, ruled out under the provisions of a recent act of Congress.

The loyalty of the claimant is testified to by every witness whose deposition was taken. He was originally opposed to secession, and remained in opposition to it throughout the war. No witness testifies to his having relieved a Confederate soldier or his *family;*to his having contributed of his means to the Confederate cause directly or indirectly; to his being engaged in blockade-running; to his having aided in the raising or equipment of Confederate troops, or even to his having expressed sympathy for their cause. The loyalty of the claimant was not merely passive; on the contrary he showed his faith by his works on every suitable occasion. After the occupation of Atlanta, by General Sherman, the claimant was appointed, in consequence of his loyalty to the Federal government, foreman of the masonry department of the military railroad. As further proof of claimant’s loyalty it is stated by one of the witnesses that he went north, under General Sherman’s proclamation giving permission to that effect to such of the citizens of Atlanta who preferred to do so.

*Mr. JR. 8.*Sale, special counsel of the Treasury, for the defendants.

Loring, J.,

delivered the opinion pf the court:

• In this-case the claimant sués for the net proceeds of seventy-five bales of cotton, and the court finds the facts to be—

That in the month of September, 1864, the claimant was a citizen of Georgia, and owned and possessed of seventy-three bales of cotton, then stored in the city of Atlanta.

That the said seventy-three bales of cotton were taken out of the possession of the plaintiff by the United States, and by them sold at public auction, and the net proceeds thereof, amounting to the sum of $26,275 62, paid into the public Treasury.

That the claimant was a loyal citizen of the United States, and had never voluntarily aided, abetted, or given encouragement to the rebellion against the government.

In this case the petition was filed November 19,1867, the statute of limitations was pleaded, and the plea was held to be bad, for the reason stated in the opinion read by the Chief Jus*535tice in the case of *Grossmeyer*v. *The United States,*recently decided, (p. 1, *ante.)*

Objections to testimony offered by tbe plaintiff were taken on tbe part of tbe Dnited States. Tliese were sustained and tbe testimony stricken out in tbe instances following, viz:

1. Tbe words “ I also beard men say that be bad been loyal before. I understood that tbe Federáis gave positions to no one only those that bad been loyal,” in tbe deposition of E. Mercer.

*2.*Tbe words “ My impression was at tbe time Mr. Orussell was a Union man,” in tbe deposition of Asbury P. Bell.

3. Tbe words “It was a public rumor on the street here that Mr. Orussell, in company with Ed. Murphy and others, appropriated provisions collected by tbe southern relief committee to the feeding of a train load of Union prisoners captured at tbe battle of Chickamauga and sent to this place. It was charged that this was done while tbe train stopped over here one night,” in tbe deposition of Asbury P. Bell.

4. Tbe words “He told me it was captured cotton from Atlanta, Georgia,” in tbe deposition of Wan. Drake.

5. Tbe deposition of tbe claimant.

6. Tbe words “Mr. Orussell told me at divers times during tbe war that be bad cotton and was bolding it for an investment,” in deposition of F. P. Bice.

7. The words “ be said be was going to sell it and invest it in cotton;” ibid.

8. Tbe words “ At tbe time Mr. Orussell purchased this cotton be told me be was buying it for an investment to bold through tbe war,” in tbe deposition of W. H. Bice.

9. Tbe words “Which be also said be was going to invest;” ibid.

And tbe objections, taken in tbe following instances, were overruled:

1. To tbe words “When they were putting on tbe second load, Mr. Orussell, tbe claimant, came up, and they -told him that Captain Hade told them to take all tbe cotton that was in tbe city,” in tbe deposition of John Ooben.

2. To tbe words “I beard tbe officer tell Mr. Orussell that be took tbe cotton for Captain Hadeibid.

3. To tbe words “ I knew Mr. Orussell was a Union man during tbe war,” in deposition of Benjamin Kelly.

4. To tbe words “ From Mr. Crussell’s conversations during *536tbe war I think be was a Union, man,” in tbe deposition of Isaac O’Sbields.

The evidence in tbe case shows that tbe claimant purchased a larger part of this cotton (fifty bales) of William T. Qnimby, June 15, 1863, and was in possession of tbe rest of it in that year; and that thereafter he stored it, and bad it guarded, and thus exercised acts of ownership over it till it was taken from him by the forces of tbe United States shortly before their evacuation of Atlanta.

That when taken it was carted to tbe railroad to be carried to Cincinnati, where sales of captured cotton were made. As tbe cotton was thus shown to have .come to tbe possession of tbe United States, tbe burden was imposed upon them to account for it, and all that was shown was that a portion of cotton shipped to Cincinnati was burned, and as in other cases, a proportional allowance for that has been made in this case.

Tbe loyalty of tbe claimant was proved' by tbe testimony of those acquainted with bis daily life, and who attested to bis general reputation for loyalty among Union men, and others, in Atlanta. And tbe evidence shows acts of kindness on bis part in feeding Union prisoners from bis bouse, subscribing money to buy them clothes, and obtaining for them, at bis personal risk, provisions from a Confederate charitable institution for tbe relief of Confederate soldiers. He left bis work to avoid being called into service in tbe Confederate army, and joined a fire company for tbe same purpose. And though that was armed afterwards for home defense, and was called into camp to repel raids at one time, tbe evidence showed that be was not armed, and was not in camp. And it appeared that be bad procured himself to be detailed to attend to tbe water cisterns.

On tbe whole case we are of opinion that tbe claimant is entitled to judgment for tbe net proceeds of seventy-tbree bales of cotton, seized and sold as aforesaid, and wbicb were paid into tbe Treasury, and amoimted to tbe sum of twenty-six thousand two hundred and seventy-five dollars and sixty-two cents, ($26,275 62.)