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.