| Claim Memphis & Ohio Rl. Rd. Co. |
| It seems now in the fall of
'62 my Co. hired to the Southern Rl Rd Co two Locomotives. (The
Quarter Master Genl. ??? of ??? as unp?? by Gen Pemberton -- but it
appears from evidence of Mr Williams Supt South. RR Co {Southern
of Mississippi RR} that they were
hired to that Co.) In March '63 the M. & O. Co instructed the S.
R. Co. that after the 1st April the hire for each engine would be $30
pr day & in event of capture by the enemy the S. R. Co would be
held responsible for the full value of each engine. About May 1st, the
Supt. of S. R. Co was notified by M&O Co not to allow the engines
to go west of Jackson, as there was great danger of their capture. On
the 8th May Gen Forney with approval Gen Pemberton desired or
instructed (the effect of his letter to be considered hereafter) the
S. R. Co. to return locomotives & cars on the west end of Big
Black. ????? the locomotives of the M. & O. Co were retained at
Vicksburg, for service of the Army & captured by the enemy on its
surrender July 4, '63. |
| From these facts it seems
clear ????? that the M. & O. Co. has a
complete remedy against the S. R. Co. Their retention of the
locomotives after the letter of Mar '63 constituted a contract to pay
$30 pr day ??? & the value of loss by capture & the liability
is compressed by failure to obey ????? May 1st has to carry west of
Jackson. The impressment by the Govt. does not relieve them, for this
was one of the dangers against which the M. & O. Co designed to
avoid. The Govt. did not require these locomotives especially. Any
other two could have answered. The S. R. Co in explaining why ???
& ??? of ????? were caught west of Big Black -- show that it was
consequent upon their use of the hired engines in what the owners had
notified them ????? hazardous ??? -- ??? the necessity to leave them
at Vicksburg -- was credited ????? has the Southern Rl Rd Co is
clearly bound to the M. & O. Rl Rd Co for $30 pr diem hire pr each
engine up to July 4, 63 & for their value as of that day. |
| But the question presented is
as to the liability of the Confed. States to the M. & O. Co. |
| The liability if any is
primarily to the S. R. Co. for that Co. under its contract with the M.
& O. Co. had the right to control & did in fact control the
engines & if employed as all they were employed as the property
????? of the M. & O. Co. I was on first consideration inclined to
rule the M. & O. Co could not propose any claim against the
Government & I do ????? nor has any settlement can be made with
such Co without the assent of the S. R. Co. It seems ??? the one claim
is proceeding with the concurrence of the latter Co. & if the
formal assent of that Co is filed with the papers & the
circumstances constitute a valid claim on the Govt. for the value of
the locomotives, the matter may as well be determined now. |
| Then as to the liability of
the Government Gen Forney's letter of date "Head Qrs ?????, Dept
Ala & ELa May 8, 63 to Pres S. R. Co. reads as follows: |
| Sir, |
| In view of the probability of
the enemy's cutting off our communications between Big Black ??? &
Jackson I desire that you will keep on????? Big Black sufficient
rolling stock to supply the demands of the Army. It should be so
arranged that five or six Engines with cars should always be on this
side of the River. Of course you will please keep two Engines & 40
cars here & ??? to the orders of the Q. M. & always in
readiness to answer. |
| I am very Resp. |
| John J. Forney |
| Maj Gen Com |
| Approved |
| J C Pemberton |
| Lt Gen Com of Dept. |
| |
| Consequent upon this letter
the engines the quartermaster would control of the Govt. & ?????
& controlled by its officers exclusively. Maj ??? Ch. Q. M. says
that two locomotives were kept & used exclusively by him at
Vicksburg & he has no doubt they were the two belonging to the M.
& O. |
| The Supt. of S. R. Co says
there was no special contract with the Govt. & that the Govt. did
not pay increased rates of transportation or for the risk of capture. |
| The S. R. Co. extended from
Vicksburg to Grenada. |
| If the ??? to impressment of
the engines, the claim is provided for in the 8th section of the
Impressment Law & must be paid. |
| The forms of the Impressment
Law were not complied with, but I do not understand the law as
designed to make private rights dependant on the regularity of public
officers in following proscribed forms. Observance to these forms
makes conclusive ??? of impressment, but I apprehend claimants
are at liberty to produce other satisfactory evidence of the fact. I
understand any appropriation of private property to the use of the
Government by an authorized agent with or without force, except on
contract express or implied is an impressment. If Gen Forney's letter
??? was an order, it excluded on the part of the S. R. Co any election
& consequently any power to contract & the case is one of
impressment. This is the view I take of it. I know of no case in which
preemptory words can more justly be held as mandatory
than in the Official Acts of a Military Commander -- looking to the
defence of an important post or territory entrusted to the protection
of his army. |
| But if not an impressment, it
was a contract & as the Supt. of the Road states that no
compensation for the ??? was made nor increased rates of freight the implication
must be that the contract should conform as to the liabilities of the
Government -- to those the law required as to ??? in the exercise of
the ultimate resort of impressment. |
| I do not think that it matters
that the Co had larger interests of its own at stake in the protection
of Vicksburg. Those interests might have influenced the Co. to imperel
its property, but the military authorities wisely thought it unsafe to
expose public interests upon such an anticipation. The Company
certainly did not manifest its election to expose ??? engines &
there is no just reason to assume that it would have done so without
the interjection of the Government. |
| In my judgment then whether
regarded as an impressment or contract I think the Govt is bound by
the provisions of Section 8 of Impressment Law. |
| If this be a correct idea, it
is useless to concede the question of value as the Law prescribes the
worth of its ????? |
| B R Muford Jr |
| Dec. 19, '64 |