delivered the opinion of the court:
The question in this case relates to the extent of the Government’s liability where private property has been taken by. its agents without there being a valid express contract to fix the rights and liabilities of the parties. The court is not agreed ujion the points at which this liability begins and ends. And it is to be understood that the report of the cases of Adams and Salomon (7 C. Cls. R., pp. 437, 482) states a point as determined which is yet unsettled by this court, and cannot be until a case can be heard before a full bench. In the present case it is different^' thought that the claimant should recover for the entire quantity of the hay, for three-fourths, and for none of it. But as a majority concur that he is entitled to three-fourths, if no more, judgment will be rendered accordingly.
*395The judgment of the court is that the claimant recover of the defendants for 402 tons of hay, at $45 a ton, the sum of $18,090.