Nott, J,,
delivered the opinion of the court:
The claimants in these cases were non-commissioned officers or privates in Company A, Third- New Mexico Volunteers. It appears that the company was formed during the months of September and October, 1861, at Fort Marey, N. Mex. When mustered in the men furnished their own horses and horse equipments, which were duly appraised by a board and. the value thereof noted on the muster-in roll. The company was stationed successively in Santa Fé, Albuquerque, and Polvi-dera. On the 13th of February, 1862, it was ordered from the last-named place to Fort Craig, and arrived there about the 18th. On the l'dli the following order was issued :
" Hdqrs. Dept, op N. M.,
"Fort Graig, N. M., Feb. 10, '62.
"Mortimore, Oapt. Wm., ,
"3d W. 21. Yols.
"Captain: The dept, commander desires you to send your unserviceable animals to the camp of Lieut. Gallegos, near San Antonio, in charge of your non-effective men,, who will remain with them to take care of them. Your extra saddles and bridles will be done up in bundles, marked with the owners' names, and left with the quartermaster, Fort Craig, for transportation.
"'Very respectfully, sir, your ob't s'v't,
"WM. J. L. Nicodemus,
" Cavt., 12th Infty., A. A. A. Geni."
In the cases of Company K of the same regiment it appeared that under a somewhat similar order the horses were inspected and divided into classes. Those of the first class were taken into the fort and purchased for the use of the government. All that remained were- turned into a herd, which was sent to a grazing camp and ultimately captured by the enemy. It also appeared that the defendants had the means of showing which members of the company were paid for their horses, and that by the vouchers on file in the Treasury Department they could defeat the demand of any claimant in court who had been paid for his horse.. It also appeared that the men were dismounted and separated from their horses about a fortnight before the battle of Valverde, and that none of the privates of the company deserted, then or subsequently, but that all remained, doing duty on foot, until their muster-out.
In these cases of Company A it appears, on the contrary, that the company did not reach Fort Craig until within a day or two of the battle of Yalverde, and that no less than twenty-six men of the company deserted during or on the evening of the battle., It is impossible, therefore, to separate the men of this company into two distinct groups, and to throw the burden of showing what men were paid for their horses upon the defendants. Taking into consideration all the facts and circumstances of these cases, the late day at which the company arrived at Fort Craig, the imminence of the impending battle of Yalverde, the demoralization and bad discipline of the command, the want of corroboration of the claimants' witnesses, their positive contradiction in several instances by the records of the War Department, it is our opinion' that the evidence is insufficient to support a verdict.
The judgment of the court is that the claimants' petitions, respectively, be dismissed.