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EBENEZER J. CONARD ET AL. v. THE UNITED STATES.

No.

Letter from the Assistant Clerk of the Court of Claims, transmitting a copy of the finding of the court dismissing the case in the cause of Ebenezer J. Conard et al. against the United States.

DECEMBER 9, 1890.-Referred to the Committee on War Claims.

Hon. THOS. B. REED,

COURT OF CLAIMS, CLERK'S OFFICE,
Washington, December 8, 1890.

SIR: Pursuant to the order of the court I transmit herewith a certified copy of the opinion of the court dismissing case in the aforesaid cause, which case was referred to this court by the Committee on War Claims, House of Representatives, under the act of March 3, 1883. I am, very respectfully, yours, etc.,

Speaker of the House of Representatives.

JOHN RANDOLPH, Assistant Clerk Court of Claims.

[Court of Claims. Congressional No. 17. Ebenezer J. Conard et al. v. the United States.]
AMENDED PETITION. FILED MAY 15, 1888. J. R.

The petition of Joseph Baldwin; A. M. Buffington; Henry E. Butts; C. C. Gaver, administrator of Joseph Conard; Mahlon Demory; C. C. Gaver, administrator of Lewis W. Derry; Philip Derry of Hillsborough, Mary E. Derry, Eliza V Lancaster, Laura B. Oden, Lucy D. Cogle, James W. Derry, Arthur Derry, Wilbur Derry, and Emma D. Derry, distributees of Philip Derry of Peter; Philip Fry; Harrison Hawes ;: Samuel Hough; Emma R. Moore, William B. Moore, Eli A. Moore, Mary B. Fritts, and Martha E. Burley, distributees of George W. Moore; George Neer; E. C. Potts and W. C. Potts, administrators of Edwin H. Potts; Frederick M. Potts; Thomas W Potts, distributee of Jonas Potts; C. C. Gaver, administrator of Henry Reed; Joseph L. Russell; C. C. Gaver, administrator of David Shriver; Richard Tavenner; John F. Waters, administrator of Levi Waters, and John F. Waters, in his own right respectfully shows:

(1) That they are beneficiaries under the bill (H. R. 2856, Forty-eighth Congress, first session) referred to this court by the Committee on War Claims of the House of Representatives on the 16th day of February, 1884, in whose cases a finding of loyalty was filed by the court on the 1st day of February, 1886.

(2) That in the cases of Joseph Conard, Lewis W. Derry, Edwin H. Potts, Henry Reed, David Shriver, and Levi Waters, all deceased, administration has been duly granted to the petitioners herein before respectively named, all of which fully appears by certificate of the proper probate court, hereunto appended and marked Exhibit A.

(3) That in the cases of Philip Derry of Peter, George W. Moore, and Jonas Potts, all deceased, there has been no administration, as appears by the accompanying affidavits, marked Exhibit B.

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[Court of Claims. Congressional No. 17. (Decided June 9, 1890.) E. J. Conard and twenty others v. The United States.]

OPINION.

Davis J., delivered the opinion of the court:

These claims, called the "Loudoun County claims," are referred to this court in accordance with the provisions of the act of March 3, 1883, called the "Bowman act," and it is objected that the court is without jurisdiction to find and report the facts therein.

November 27, 1864, Major-General Sheridan issued the following order:

HEADQUARTERS MIDDLE MILITARY DIVISION,
November 27, 1864.

GENERAL: You are hereby directed to proceed to-morrow morning at 7 o'clock, with two brigades of your division now in camp, to the east side of the Blue Ridge, via Ashby's Gap, and operate against the guerrillas in the district of country bounded on the south by the line of the Manassas Gap Railroad as far east as White Plains, on the east by the Bull Run range, on the west by the Shenandoah River, and on the north by the Potomac.

This section has been the hotbed of lawless bands, who have from time to time depredated upon small parties on the line of the army communications, on safeguards left at houses, and on small parties of our troops. Their real object is plunder and highway robbery.

To clear the country of these parties that are bringing destructiou upon the innocent as well as their guilty supporters by their cowardly acts, you will consume and destroy all forage and subsistence, burn all barns and mills and their contents, and drive off all stock in the region the boundaries of which are above described. This order must be literally executed, bearing in mind, however, that no dwellings are to be burned and that no personal violence be offered the citizens.

The ultimate results of the guerrilla system of warfare is the total destruction of all private rights in the country occupied by such parties. The destruction may as well commence at once, and the responsibility of it must rest upon the authorities at Richmond, who have acknowledged the legitimacy of the guerrilla bands.

The injury done to this Army by them is very slight; the injury they have indirectly inflicted upon the people and upon the rebel army may be counted by millions.

The reserve brigade of your division will move to Snickersville on the 29th. Snickersville should be your point of concentration, and the point from which you should operate in destroying toward the Potomac.

Four days' subsistence will be taken by your command. Forage can be gathered from the country through which you pass.

You will return to your present camp, via Snickersville, on the fifth day.
By command of Major-General Sheridan.

Brevet Major-General MERRITT,
Commanding First Cavalry Division.

JAMES W. FORSYTH, Lieutenant-Colonel and Chief of Staff.

It will be noticed that the primary purpose of this order was not the supply of the Army, but injury to the enemy; General Sheridan said: "The ultimate results of the guerrilla system of warfare is the total destruction of all private rights in the country occupied by such parties. This destruction may as well commence at once, and the responsibility of it must rest upon the authorities at Richmond." The raiding troops were not to live upon the country; they were allowed to consume" as well as to destroy "all forage and subsistence," but, as the troops were to take with them rations for the full period of their contemplated absence upon this duty, and as "forage" (and "forage" only) was specifically allowed to be gathered from the country, it is clear that it was intended that the troops should live, not upon what they found, but upon what they carried.

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Forage and subsistence which the troops could not transport were to be destroyed, as were barns and mills, with their contents, while live stock was to be driven off. This order was executed and the live stock taken from individuals in the designated district were intermingled and driven within the lines, where some were afterwards slaughtered and used for food, while others were sold and the proceeds were turned into the Treasury. This course made it impracticable for any claimant to ascertain whether his stock or any part of it had been either consumed by the Army or sold for the benefit of the Government.

After the organization of the commission called the Southern Claims Commission many of the residents of Loudoun County presented their claims for losses of this nature to that tribunal, which dismissed them under the following ruling:

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"We have not considered the 'Loudoun County claims,' so called. They are numerus; are chiefly for property taken by military necessity under the order of General Sheridan of November 27, 1964. The claims for property taken for the use of the Army are so intermingled with those in which the property was sold and the proceeds put into the Treasury that it is almost impossible to separate them. As large herds of horses, cattle, and sheep were driven off together, the claimants can not trace their property to army use. We have therefore declined examining them, thinking Congress may make some special provision in regard to their examination and settlement." (First general report of the Commissioners of Claims, H. R. Mis. Doc. No. 16, Fortysecond Congress, second session, p. 8.)

The cases of some of the claimants herein were not presented to said Commissioners of Claims, perhaps because of said ruling.

In March, 1872, the Committee on Claims reported to the Senate, recommending the passage of an act for the relief of sufferers of this class (Forty-second Congress, second session, Senate Report No. 80), and January 23, 1873, an act was approved providing for the compensation of many of the sufferers, but in the long list in the act the names of the claimants in the case at bar do not appear, and eleven years afterward their claims were referred here for proceedings in accordance with the "Bowman act." These claims are all exclusively for live stock driven off, and it is impossible to discover in any one instance whether the stock was later consumed by the Army or sold for the Government's benefit.

If all the stock were sold and the proceeds turned into the Treasury, then claimants were given a remedy by the "captured and abandoned property act," and having neglected to pursue it, they are now barred by the limitation of that act, therefore barred by the provisions of a law of the United States, and the claims are excluded from our jurisdiction by the second paragraph in section 3 of the Bowman act. (Vance vs. The U. S., 21 C. Cls. R., 448; Payne vs. The U. S., 22 C. Cls. R., 144; Nelson vs. The U. S., 22 C. Cls. R, 159.)

If all the stock were taken under such circumstances that the seizure might be; construed as a proper taking and appropriation of supplies for the use of the Army, then the remedy was to be found in the Southern Claims Commission, and as some of the claimants have not availed themselves of this remedy, their claims are also, by virtue of the same provisions, excluded from our jurisdiction. (Dodd vs. The U. S., 21 C. Cls. R., 117; Dyer vs. The U. S., 23 C. Cls. R., 418, Burwell vs. The U. S., 22 C. Cls. R., 92.) The fact that it is impossible to separate the stock sold from the stock eaten can not aid claimants, for jurisdiction of claims for loss in either event is excluded by the Bowman act.

Some of the claimants did present their claims to the Southern Claims Commission, and as to them the Commission said:

"The claims for property taken for the use of the Army are so intermingled with those in which the property was sold and the proceeds put into the Treasury that it is almost impossible to separate them."

The proof in the cases here stops at the taking That taking was not primarily intended for army supply, but for the injury and weakening of the enemy; the raid was not made to obtain food, but for destruction; and the presumption, therefore, is not the same as in cases where under orders the Army subsisted upon the country. The object was not to feed the soldiers, but to starve the guerrillas, and was similar in nature and spirit to the destruction of barns, mills, and their contents which was directed in the same order.

Claims for destruction or damage to property during the late war are excluded from our jurisdiction (Heflebower vs. The U. S., 21 C. Cls. R., 231; Myers' Admr. vs. The U. S., 22 C. Cls. R., 80; Madison Female Institute vs. The U. S., 23 C. Cls. R., 188), and it becomes incumbent upon claimants to show whether their stock was killed and wasted on the march when driven before troops supplied with rations, or whether they died by the way, or were afterwards by proper direction applied to army use, or whether they were sold and the proceeds of the sale turned into the Treasury. This has not been done; from the nature of the occurrence it can not be done.

The petition is dismissed for want of jurisdiction.

BY THE COURT.

Filed June 9, 1890.

A true copy. Test, this 8th day of December, A. D. 1890.

JOHN RANDOLPH, Assistant Clerk Court of Claims.

2d Session.

No. 18.

PHILIP RAIFORD, ADMINISTRATOR OF THE ESTATE OF MRS. MARGARET B. RAIFORD, DECEASED, VS. THE UNITED STATES.

Letter from the assistant clerk of the Court of Claims, transmitting a copy of the finding of the court in the case of Philip Raiford, adminis trator of the estate of Mrs. Margaret B. Kaiford, deceased, against the United States.

DECEMBER 9, 1890.-Referred to the Committee on War Claims.

COURT OF CLAIMS, CLERK'S OFFICE,
Washington, December 8, 1890.

SIR: Pursuant to the order of the court I transmit herewith a certified copy of the opinion of the court in the aforesaid cause, which case was referred to this court by the Committee on War Claims, House of Representatives, under the act of March 3, 1883.

I am, very respectfully, yours, etc.,

JOHN RANDOLPH, Assistant Clerk Court of Claims.

Hon. THOMAS B. REED,
Speaker of the House of Representatives.

[Court of Claims, Congressional, No. 1632. Philip Raiford, administrator of estate of Mrs. Margaret B. Raiford, deceased, v. The United States.]

MOTION BY DEFENDANTS TO DISMISS FOR WANT OF JURISDICTION.

Richardson, Ch. J., delivered the opinion of the court:

This is a claim for stores and supplies alleged to have been taken for the use of the Army during the rebellion, transmitted to the court by the Committee on War Claims of the House of Representatives under the Bowman act, February 20, 1887.

It appears by the order of transmission that the claim is that of the "heirs of Robert Raiford, deceased."

With the order the committee transmitted the original petition to Congress of "Maggie R. Lofton et al., heirs of Robert Raiford and Margaret B. Raiford," alleging that they were citizens and residents of Marshall County, Miss., and when the claim accrued were residing in that county, and asking compensation for stores and supplies taken by and for the use of the Army of the United States, for which a claim had been filed, in the name of "Margaret B. Raiford," before the QuartermasterGeneral, under the act of July 4, 1864, and rejected for want of jurisdiction.

The petition to this court is by the admistrator of Margaret B. Raiford, deceased, filed May 2, 1887, and sets out a claim for stores and supplies taken from her in Marshall County, Miss., where she resided during the late war.

Two petitions are returned upon the claimants' call by the War Department from the Quartermaster-General's Office, where they appear to have been filed in May, 1868, and rejected for want of jurisdiction, for the reason that the claims originated in Mississippi, a State declared to be in insurrection during the rebellion.

Those petitions were in the name of Margaret B. Raiford, who therein set out that she was a citizen of Shelby County, Tenn., and that the stores and supplies were taken from her in that county.

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