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State of Louisiana v. Louisiana State Bank-Bailey, Intervenor.

We have examined the whole of it, whether adduced by the bank or the intervenor, and on drawing our conclusion in weighing it, we are unable from the record to perceive why the witnesses on both sides are not entitled to an equal degree of credit.

Bailey claims three thousand bales of the cotton in controversy, but he has only identified as his property six hundred bales thereof, on the four boats named.

It is not shown where this cotton was put on board these boats, nor how it was up the river from Alexandria, but this is immaterial, if it is proved, as we hold it to be, that the cotton was identified as Bailey's at Shreveport and New Orleans.

The Judge of the lower court displayed great learning and research in his attempt to show that the Confederate Government was one de facto; and that if any cotton of Bailey's was captured by it at Alexandria, upon the surrender of the Confederate army in Shreveport, the cotton by capture became the property of the United States.

There is nothing to show that any of Bailey's cotton was ever confiscated by the Confederates or by the United States; and in such a case, the rule laid down by Wheaton, in his Elements of International Law, page 42, ed. 1855, applies:

He says: "If, on the other hand, the revolution in the government of the State is followed by a restoration of the ancient order of things, both public and private property, not actually confiscated, revert to the original proprietor on the restoration of the original government, as in the case of conquest, they revert to the former owner on the evacuation of the territory occupied by the public enemy.'

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Private property, temporarily sequestered, returns to the former owner, as in the case of such property recaptured from an enemy in war, on the principle of jus postliminii."

From the six hundred bales of cotton, which are awarded to Bailey, must be deducted the government quota, say one-fifth or one hundred and forty bales, leaving to him four hundred and sixty bales; the weight of each bale proved to be five hundred pounds.

Taking the average of the qualities of the cotton from the tables of classification, and the average of prices for the different grades of quality from the current prices in proof, we find the mean price of the intervenor's cotton to be thirty cents and eight mills per pound, equal to one hundred and fifty-four dollars per bale, equal to seventy thousand eight hundred and forty dollars, and for this sum judgment will be rendered for the intervenor.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed.

It is further ordered, that the demand of the State of Louisiana, against the Louisiana State Bank and the demand in reconvention of the Louisiana State Bank against the State of Louisiana, be dismissed.

It is further ordered, adjudged and decreed that judgment be and the same is hereby rendered in favor of William Bailey, the intervenor, and against the Louisiana State Bank for the sum of seventy thousand eight hundred and forty dollars; and it is further ordered, that the bank pay the costs of intervention in both courts.

State of Louisiana v. Louisiana State Bauk-Bailey, Intervenor.

HYMAN, C. J. For the same reason that caused us to decide in the case of White v. McKee, 19 A. p. 111, that there was no Legislature in Louisiana in 1863, I conclude that there was no Legislature of the State in 1862, without a Legislature in 1862, there could not have been an act passed by the Legislature in that year.

A supposed act of the Legislature of that year is referred to in the decision now rendered, and the decision is against the claim of the State, because the so-called act has provisions for supporting the rebellion,

The decision against the State is correct, not for the reason given by the majority of the Court, but because no such act was passed by a Legislature, and because no contract or arrangement could have been made by authority of a spurious act of 1862, between the State and the bank to bind either.

I do not differ from the majority of the Court, in their reasons for deciding on the claim of the intervenor.

I concur in the decree of the Court.

ON REHEARING.

ILSLEY, J. This case, on the claim in intervention, is again before us upon a very elaborate and able oral reargument, for which ample time was allowed to the counsel of the intervenor and the bank, respectively, to educe and cull from the mass of discrepant testimony, the particular facts upon which each party relied; and from the scrutinizing exposition of the whole case so evolved, we are now enabled to form an opinion more satisfactory and reliable than our first one, in which the testimony was not so thoroughly sifted on both sides as it is now.

The case is fully open for re-examination, regardless of any predication or particular form of expression, used in our first opinion.

It devolves on the intervenor to make his claim certain, and it would, perhaps, have been more regular to examine first his case as he presents it; but as the bank does not rely solely upon its possession of the cotton claimed, we will proceed to ascertain upon what kind of title its possession thereto rests.

The bank shows that, sometime in the year 1863, it had purchased beyond the lines of the United States military occupation, some eleven thousand bales of cotton, in which it had invested a large amount, available as current funds, at the time when, and at the place where, its purchases were made.

That portion of the cotton purchased by the bank in Black, Tensas and Red rivers, had been carred above Shreveport and deposited among the lakes.

Purchases were also made by the bank in the parishes of Bossier, Claiborne, DeSoto, Caddo and Natchitoches, which were not moved.

With this cotton, the agent of the bank, with a number of men employed by him, had remained as much as possible; and at the end of the war, as the witness, Stevenson, proves, he had in his charge, out of the original purchases, between 8,000 and 8,500 bales. He collected together from all the points, and shipped, as he says, to New Orleans, consigned

State of Louisiana v. Louisiana State Bank-Bailey, Intervenor.

to the Louisiana State Bank 7,250 bales, the remainder being lost in rebaling, in short deliveries, and by stealing.

From the testimony of this, and other witnesses for the bank, and by admissions frankly made by the intervenor's counsel, at page 2 of their brief, we are satisfied as to the quantity of cotton purchased and saved by Stevenson, as the agent of the bank, and his assistants, at the time when, and the localities where these purchases were made, and the points at which the cotton was kept.

Was the cotton thus purchased, laden on the steamboats Texas, Doubloon, Louis D'Or and Beauregard?

As to the cargoes of the Texas and Doubloon, the intervenor, at p. 21 of his brief, says: "The witnesses, on the part of the bank, proved the purchases by Stevenson as above," in his brief, "admitted, and showed that the Texas and Doubloon received their cargoes at different points on Lake Caddo, brought them thence to Shreveport, and afterwards to New Orleans; but, as before asserted, no part of the cargoes is shown, except by Stevenson, to have been made up of the cotton purchased by the bank in 1863."

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The different points" on Lake Caddo, were those" at which the intervenor says, (page 21 of his brief) "that previous to the month of July, 1863, Stevenson, as the agent of the bank, had purchased cotton on the Black and Tensas rivers, and had shipped about 2,000 bales by the steamer Osceola, to different points on Lake Caddo."

In this connection, Stevenson says: "I went myself with the steamboats Doubloon and Texas into Lake Caddo, above Shreveport, where I loaded said two boats with cotton that I had previously carried there, with the steamboat Osceola, and with cotton that I had purchased at Monterey landing, situated on a small bayou, emptying into Lake Caddo, in Texas, but a few hundred yards beyond the line that separates it from Louisiana. This is corroborated by other witnesses, and the currrent of testimony shows that the largest portion of the cargoes of these boats was in wretched condition, the bagging and ropes rotten, many of the bales burst open, which was the state of it, as proved by the bank, when it reached New Orleans.

With reference to the cargoes of the Louis D'Or and Beauregard, the intervenor says, page 21 of his brief: "We are not disposed to deny that in the early part of 1863, and during the same period in which the Osceola was engaged in carrying cotton to Lake Caddo, Stevenson purchased a considerable amount of cotton in Louisiana, Texas and Arkansas, and left it at that time on the several plantations where it was bought; but we have to say, relative to the cotton on the Louis D'Or and Beauregard, as we have already urged regarding the cargoes of the Texas and Doubloon, that "there is no evidence except that of Stevenson, to identify the cotton in these two steamers, with that purchased for the bank in 1863, and left upon the plantations.

Stevenson thus particularizes, as to the cargoes of the Louis D'Or and Beauregard. These boats were loaded "partly with cotton, brought by the steamer Dixie from Frank Armor's plantation, above the Raft, and partly with cotton brought from Monterey on the steamboat Blantas. The Beauregard was loaded with some 300 odd bales of cotton at John

State of Louisiana v. Louisiana State Bank-Bailey, Intervenor.

Pickett's plantation, above Shreveport, and the remainder of her cargo was put on at Shreveport, with cotton, partly brought on wagons, and partly with cotton brought in on the small steamboat Blantas, from Monterey and Wilson's point.

The condition of this cotton was similar to that of the cotton on the Doubloon and Texas, generally covered with rotten baling and rope.

The bank's case as thus presented, is this: That with ample pecuniary means in 1863, it then purchased large quantities of cotton, which were deposited at different points; that at the expiration of the war, there remained out of the whole lot so purchased, some 7,250 bales at those points, and that the cargoes of the Texas, Doubloon, Beauregard and Louis D'Or were shipped at, or consisted of cotton brought from, those designated points.

From these facts, in the absence of any evidence to prove the previous removal of this cotton from these depositories, respectively, or its destruction there, it may be reasonably inferred that that cotton formed the cargoes of the four boats.

To destroy the presumption which the law raises in favor of the bank, and to confute the positive testimony of Stevenson and other witnesses, the intervenor offers countervailing testimony, by which he undertakes to establish the following state of facts:

That at the time of the evacuation of Alexandria by the United States army, he owned in that place some 4,000 or 5,000 bales of cotton, all baled in new india bagging, and on which, or a large portion of it, figuréd the mark "A. Q. M.," "D. N. W.," "W. B."

That the bulk of this cotton had been shipped in government transports for transportation to New Orleans, but were afterwards thrown ashore under the river bank, along and opposite the town of Alexandria; that owing to the peculiar position of this cotton under the bank of the river, it escaped destruction by fire when the town was burnt; that this cotton, after the capture of the town by the Confederate army, found its way up Red River to some points at, or in the vicinity of Shreveport, or above or circumjacent thereto; and that the cargoes of the Doubloon, Texas, Louis D'Or and Beauregard, consist of the identical cotton so owned by him in Alexandria.

To identify the cotton, the intervenor produces, and relies upon, the testimony of four witnesses, to-wit: John L. Coates, John W. Martin, J. F. Mollère and T. H. Brudley, aud this is the only testimony we deem it necessary to examine, as we will consider established the fact, that the intervenor had in Alexandria a large quantity of cotton, with descriptivo marks, which escaped destruction by fire.

J. I. Coates was United States treasury agent for northern Texas. He arrived in Shreveport from New Orleans for the first time on the 7th June, 1865, and remained there till he left for Marshall, Texas, arriving there forty-eight hours after leaving Shreveport, about the 11th or 12th of the same month.

Previous to leaving Shreveport for Marshall, he acted as assistant of Breckinridge, the local treasury agent at Shreveport.

He went on board the Doubloon and Texas, lying at Shreveport, to inspect their cargoes, to know if they had any contraband cotton on

State of Louisiana v. Louisiana State Bank-Bailey. Intervenor.

board. These boats were deeply laden. He found all the cotton marked "J. A. S.," which Breckinridge had told him meant John A. Stevenson, and "with that he had nothing to do, as it had been arranged.”

But still he proceeded to examine this J. A. S. cotton, and he found on the bales so marked other partial marks, W. and B., WB., and some on the edge "A. Q. M.”

The J. A. S. was over some other mark that had evidently been changed, He remembered no mark of two letters.

The bales were uniformly, not remarkably large, and were covered with india bagging apparently new.

He does not know how many bules there were of this mark or peculiarity; but he saw enough to lead him to suppose the whole cargo was the same.

These two boats would reach New Orleans about the 15th June. This is all Coates says about the cargoes of the Doubloon and Texas. The letters W. and B. and WB., on the bales inspected by Coates, do not correspond with the mark on the Bailey, Alexandria cotton, which was WB. connected. If in cargoes of cotton, densely packed, Coates could see enough to lead him to suppose the whole cargo was the same as the bales he did examine, still no identity is shown between these cargoes and the Alexander cotton, unless the A. Q. M. and the new india bagging on bales, marked W. and B. and WB., sufficed to metamorphose this particular mark into another one, as distinctive as it.

As no cotton on either of these boats was found marked WB. it might be inferred that other cotton, besides the Alexander cotton, had the le t ters A. Q. M., and was baled in new india bagging.

As to the inspection of the cargo of the Doubloon, it is somewhat strange that the mate of that boat had no knowledge of it, and that not a bale was moved to make the inspection.

Coates afterwards, in his said capacity of revenue officer, made an inspection on the Louis D'Or, and found on her the same character of cotton, the same bagging and erasures, as he had found on the Doubloon and Texas.

His reason for making this last inspection, was his having heard in Marshall, that the agent of Stevenson had caused the marks to be changed on 67 bales of other cotton, by substituting J. A. S. therefor, and for this Stevenson was arrested.

He found on the Louis D'Or, the WB. chiefly on the ends of the bales, and the marks A. Q. M. on the edges. He found difficulty in deciphering the marks, because some of the marks were cut out at the edge, but by placing the pieces together he made out the A. Q. M. It was by the 'application of turpentine, he discovered the J. A. S. was marked over the WB.

How many bales so marked were on the Louis D'Or, Coates did not say, nor does he say that from what he did see on that boat, he was led to suppose the whole of the cargo was the same.

This indefinite statement, in regard to the cargo of the Louis D'Or, was occasioned probably by the fact that any inspection he made on that boat was during the night of the 17th or 18th June, as from the account Coates gives of his movements from his first arrival in Shreveport, it could only have been made then.