Lamar, Executor v. Browne Et Al

• Decision Date: 01 October 1875
• Citation: 92 U.S. 187,23 L.Ed. 650
• Parties: LAMAR, EXECUTOR, v. BROWNE ET AL
• Court: U.S. Supreme Court

92 U.S. 187

23 L.Ed. 650

LAMAR, EXECUTOR, v. BROWNE ET AL.

October Term, 1875

ERROR to the Circuit Court of the United States for the District of Massachusetts.

Mr. George T. Curtis and Mr. E. N. Dickerson for the plaintiff in error.

Mr. Assistant Attorney-General Edwin B. Smith for the defendants in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This was an action of trover, brought by Lamar, the plaintiff, to recover of the defendants the value of eighteen hundred bales of cotton alleged to have been taken and converted by them. The defendants justified, as agents of the United States to receive and collect abandoned and captured property, under the several acts of Congress providing therefor. Upon the trial, Lamar introduced evidence tending to show, that, in the years 1861-1864, he stored certain cotton in warehouses in the town of Thomasville, Ga.; that on June 19, 1865, a part of this cotton was his individual property, and stored in his own name, and part was the property of the Importing and Exporting Company of the State of Georgia, and stored in his name as president of the company; that the defendants, in the autumn and December of the year 1865, took and carried the same away, and that the Importing and Exporting Company, though a blockade-running company, had never run any cotton through the blockade, but had, during the rebellion, bought several steamers in England, and brought them into Confederate ports for that purpose. He also gave evidence tending to show, that on Jan. 6, 1865, he, having been in rebellion against the United States, and residing in Georgia during the war, took and subscribed at Savannah the oath of amnesty under the President's proclamation of Dec. 8, 1863, and that this fact was known to the defendant Browne, Sen., shortly after it occurred.

In the course of the trial, William K. Kimball was called three times as a witness,—twice by the defendants, and once by the plaintiff. His testimony disclosed the following facts: Being in the military service of the United States, in Georgia, as colonel of the 12th Maine regiment, he was ordered by General J. M. Brannan, then in command of the first division of the department of Georgia, to Thomasville. He arrived at that place June 19, 1865, and was ordered by his immediate commander, General H. D. Washburn, to take and retain possession of the ordnance, ordnance-stores, quartermaster's stores, commissary-stores, and the cotton in the warehouses there. He was specially directed to seize what was known as 'Lamar' cotton. Immediately or within a few days after his arrival, he stationed a guard at the several warehouses in the town in which cotton was stored, so as to control them, and prevent any thing from being removed. At that time there were no armed hostilities at Thomasville, and he was the first to take possession of the town. He took no account of the contents of the several warehouses, but, soon after his arrival, called upon the keepers to report the contents to him. Some did make a report, but others did not. Some, instead of reporting in writing, brought to him their books for examination. He continued his guard and the control of the warehouses; and on Aug. 9, 1865, General Brannan, then in command of the district, issued to him the following order:——

'HEADQUARTERS, DIST. OF SAVANNAH,

'1ST DIVISION, DEPT. OF GEORGIA.

'SAVANNAH, Aug. 9, 1865.

'COLONEL,—You will turn over to U.S. treasury agent, Mr. A. J. Browne, or such person as he may direct, all cotton and other seized property in the possession of the U. S. troops at Thomasville, or any other point within the limits of your command, except such as you are satisfied belongs to loyal citizens of the United States, who have taken the oath of allegiance, and who do not come under any of the exceptions of the President's proclamation of May 29, 1865. The cotton and other property claimed by persons whose loyalty you are convinced of (on sufficient proof of ownership) you will turn over to them.

'I am, colonel, very respectfully, your obedient servant,

'J. M. BRANNAN,

'Brevet Maj.-Gen. U. S. Vols., Comd'g Dist.

'To Col. W. K. KIMBALL,

'Comd'g Sub-Dist. of the Atsamaha.'

This order was delivered to Colonel Kimball, on or about Aug. 15, by the defendant, Albert G. Browne, Sen., then supervising special agent of the Treasury Department, appointed and acting under the authority of the abandoned and captured property acts. Upon its receipt, Kimball went with Browne to the warehouses, and turned over the control of both the warehouses and their contents to him, and at the same time executed a written transfer, as follows:——

'POST THOMASVILLE, GA., Aug. 15, 1865.

'Having, in obedience to orders of Brevet Brigadier-General H. D. Washburn, taken possession of certain warehouses containing cotton at this post, some of which I had reason to believe was the property of the so-called Confederate States, or of some corporation authorized by them, in violation of the laws of the United States, or of some individual whose property, by existing laws, is subject to confiscation, I hereby, in obedience to orders of Brevet Major-General Brannan, commanding 1st District of Georgia, turn over and deliver to A. G. Browne, Esq., supervising special agent Treasury Department United States, all of said cotton in my possession, custody, and control at this post, belonging to the State of North Carolina, the State of Georgia, G. B. Lamar, President of the Exporting and Importing Company of Georgia, and to G. B. Lamar, whose property, I am informed, is subject to confiscation, amounting in all to ___ bales; to wit, ___ bales, supposed to belong to the State of North Carolina; ___ bales, supposed to belong to the State of Georgia; ___ bales, supposed to be the property of G. B. Lamar, President of the E. and I. Co. of Georgia; and ___ bales, supposed to be the property of G. B. Lamar. I also turn over and deliver to said A. G. Browne, agent as aforesaid, ___ lbs. iron, ___ lbs. lead, ___ lbs. wool, &c., seized as Confederate property at this post.

'WILLIAM K. KIMBALL,

'Col. 12th Maine, Comd'g Post.'

Contemporaneously with the surrender of the possession and the execution of the transfer by Kimball, Browne executed to him a receipt, as follows:——

'POST OF THOMASVILLE, GA., Aug. 15, 1865.

'Received of Colonel William K. Kimball, commanding post, all the cotton stored in the warehouse of Evans & Parnell, and in the cotton-sheds of J. McKinnon & Co., and in the warehouse of Louis Goldsberry, which belongs to the State of North Carolina, State of Georgia, to G. B. Lamar, President of the Exporting and Importing Company of Georgia, and to G. B. Lamar personally, amounting to ___ bales, of the several kinds and marks enumerated in the schedule herewith annexed; also ten bales, supposed to belong to the State of Georgia, in the possession of Judge Grover, at Groversville, Ga.; also fourteen (14) bales in the possession of Mr. Jones, near Groversville, supposed to belong to G. B. Lamar, president as aforesaid. All of said cotton having been seized by said Kimball as Confederate, captured or abandoned, property subject to confiscation.

'ALBERT G. BROWNE,

'Supervis'g Spec. Agt., Treas. Dept. 5th Spec. Agency.'

Kimball then detailed Lieutenant Johnson, of his command, to act in connection with Browne and his agents in making a list of the contents of the warehouses as they were removed. Soon after, Kimball was relieved at Thomasville, and transferred to Savannah, where he took command of the military district. The cotton was afterwards removed to Savannah, and a full and complete detailed invoice made by Browne and Johnson. Subsequently, on Jan. 24, 1866, Kimball executed to Browne another transfer, as follows: —

'SAVANNAH, GA., Jan. 24, 1866.

'Invoice of 1,864 bales of cotton, weighing 928,106 lbs., turned over by the undersigned Aug. 15, 1865, to A. G. Browne, supervising special agent, fifth treasury agency, under orders from Brevet Major-General Brannan, commanding district Savannah; viz.:——

1,018 bales, Importing & Exporting Co., State of Ga. 513,799 lbs.

484 bales, G. B. Lamar, or said Impt. & Exp't'g Co. of Ga. 246, 328 lbs.

331 bales, State of North Carolina 154,403 lbs.

31 bales State of Georgia 13,576 lbs.

1,864 928,106 lbs.

'A written transfer of this cotton in bulk was executed by me to said Browne, Aug. 15, 1865; it being then impossible to invoice it except in bulk, the marks and weights not having then been ascertained. Said property was situated at and near Thomasville, Ga.

'WILLIAM K. KIMBALL, Col. 12th Me. Vols.'

Upon the delivery of this paper, Browne executed to Kimball another receipt, as follows:——

'TREASURY DEPARTMENT, FIFTH SPECIAL AGENCY,

'CENTRAL OFFICE,

'SAVANNAH, GA., Jan. 24, 1866.

'Received on Aug. 15, 1865, from Colonel William K. Kimball, 12th Regiment Maine Volunteer Infantry, one thousand and eighteen bales of cotton, claimed to be property of the Importing and Exporting Company of the State of Georgia; four hundred and eighty-four bales of cotton, claimed to be property either of G. B. Lamar, or of the Importing and Exporting Company of the State of Georgia; three hundred and thirty-one bales of cotton, claimed to be property of the State of North Carolina; thirty-one bales of cotton, claimed to be property of the State of Georgia; being a total of 1,864 bales of cotton, marked and weighing as per schedule hereto annexed. The same having been seized under military orders on June 19, 1865, by the military forces of the United States at and near Thomasville, in the State of Georgia, upon the occupation of that region by said troops, and being now turned over by said Kimball, in obedience to orders of Major-General Brannan, U. S. Vols., commanding district of Savannah.

'This property I have received as special agent of the Treasury Department, appointed in pursuance of certain acts of Congress, approved July 13, 1861...