
    LAPENE & FERRÉ’S CASE. Jules Lapene et al. v. The United States.
    
      On the Proofs.
    
    
      In February, 1862, merchants in New Orleans send their cleric into the interior of Louisiana to colled debts and purchase cotton. On the 27/7t April, 1862, New Orleans is captured and occupied by the United States forces. In May the cleric purchases cotton within the rebel lines. ■ Subsequently it is captured.
    
    Where merchants within, the insurrectionary districts, early in the rebellion, send their clerk, in the ordinary course of their business, into the country to make collections and buy cotton, and the clerk does so, the merchants acquire a valid title to the cotton bought; notwithstanding that between the departure of the clerk and the purchase of the cotton the merchants pass within the United States lines by the capture of their city, while the clerk remains within the rebel lines. Such a purchase, through an agent, pursuant to his previous instructions, is not commercial intercourse across the military lines, nor between the residents of loyal and disloyal States, and is valid.
    
      Mr. W. Penn. Glarhe for the claimants.
    This action is brought under the Act of March 12,186.3, known .as the Captured and abandoned property act, to recover the net proceeds of one hundred and seventy-nine bales of upland cotton, of which the claimants were the owners, seized in the State of Louisiana by the Federal authorities in 1863, and which were sold by the government, and the proceeds paid into the national Treasury. The claimants resided in the city of New Orleans during the late rebellion, one of them being a naturalized citizen, and the other a subject of France, and carried on a large mercantile business in that city.
    We shall proceed to demonstrate, by citations from the testimony.:
    I. That the claimants were the owners of the cotton claimed by them.
    II. That the said cotton was seized by the Federal authorities, and that the same has been sold, and the net proceeds paid into the Treasury of the United States.
    III. That the said claimants never rendered any voluntary aid or comfort to the late rebellion, but consistently adhered to the United States.
    
      These propositions will be considered in the order stated-above.
    
      That the claimants were the oivners of the cotton.
    
    The cotton claimed in this case was purchased by Oscar Bois and J. Nnma Aregno, (or Aveguo,) as the agents of the claimants, in the parish of St. Landry, State of Louisiana.
    That the agents of the claimants went from New Orleans into-the country to make the purchases of the cotton claimed in this suit-, while that city, as well as the remainder of the State of Louisiana, was still in the hands of the rebel military authorities, is apparent from the testimony.
    There was no violation of the non-intercourse act on the part-of these claimants in the purchase of the cotton in controversy. When their agents went into the parishes of St. Landry and St. Martin, on this business, the whole State of Louisiana was under confederate rule; when those purchases were made,, these parishes were still in the hands of the rebels; and the return of-the agents subsequently within the Union'lines,, where they remained, is in no sense a violation of the act.
    This is the general testimony as to the purchase of the cotton by the agents of the purchasers.
    
      That the cotton toas seised, by the Federal authorities, and that the same has been sold, and the net proceeds paid into the Treasury of the United States.
    
    The proof upon this head will be found to be full and satisfactory. Oscar Bois in his deposition says: “ I also purchased, cotton from some other parties, which I placed in the sheds of Coulon Devilliers; the cotton which I purchased from Wable I also had placed in this shed f and Jean Wable (or John Wyble) testifies that the thirty-six bales he sold to claimants, were stored at his father-in-law’s, L. 0. Devilliers, and that it was to remain where stored.
    From the evidence, the court cannot fail to be satisfied that the cotton of the claimant was seized by the Federal authorities, and came into the possession of the government.
    It remains now- to show that the cotton seized by the Federal military authorities in the Teche country, and shipped to New Orleans, was sold, and that the proceeds thereof have been paid into the national Treasury. The shipment of a portion of this cotton to New York and Boston, and the sale of the balance in' New7 Orleans, by authority of Colonel Holabird, is established, not only by the testimony of Louis Heiclielheim, S. H. Brown, and George Smith, all of whom were employed under Holabird and engaged in handling the cotton, and the bills of lading of its shipment to New York and Boston; but the official report of Colonel Holabird, above referred to, shows that of the cotton thus received by him at New Orleans, he shipped 1,372 bales to Boston and 1,310 bales to New York, and that the balance was sold and otherwise disposed of by the Federal authorities in New Orleans. That the net proceeds of the cotton sold at New Orleans, amounting to $802,392 48, have been accounted for by Colonel Holabird; and that the cotton shipped by that officer to Hiram Barney, the United States cotton agent at New York, amounting to 2,644 bales, was sold, the net proceeds of which, amounting to $622,14S 81, have been paid into the Treasury, is established by the returns of the Secretary of the Treasury ; while the net proceeds of a part of the cotton shipped to Boston is shown by Major McKim, by whom it was sold, to have been $195,089 12. From this evidence, the court cannot doubt, we think, that the net proceeds of the cotton we have been tracing has reached, and is now. in, the Treasury of the United States.
    
      That the claimants never rendered any voluntary aid or encouragement to the late rebellion, Mot consistently adhered to the United i'States.
    Mr. Lapene is a native of France, who came to this country when he was under eighteen years of age, and became a naturalized citizen of the United States.
    This court having decided, in the case of A. Dauphine, that by the laws of France citizens of the United States were authorized to bring suits against that government in its own courts, we regard it as of little importance whether the court regards Mr. Lapene as an American citizen, or as a subject of France domiciled in this country.
    In relation to Mr. Lapene, ex-Governor Michael Hahn, ■whose devotion to the Union during the late rebellion is well established, testifies:
    “ I have known the firm of Lapene & Ferré for about seven years; I have known Jules Lapene for about twenty years last past; I know the reputation of the firm of Lapene & Ferré for loyalty to the Union; that reputation has been good for loyalty, ■and for reputation in business; I can speak of Mr. Lapene, person ally, as to bis loyalty; since tbe breaking out of tlie rebellion I have had frequent conversations with Mr. Lapene in regard to the rebellion and the Union, and his acts and language always satisfied ine that he was an eminently loyal man.”
    As to Auguste Ferré: Mr. Ferré remained in New Orleans till after the capture of that city by the Union military authorities. In August, 1862, he obtained a passport from the French consul in that city, and a pass from the military authorities $ from New Orleans he went to New York, and from the latter city to Europe. These facts are established by documents filed in the case.
    Upon this record, established by the testimony of some of the best known Union men in New Orleans, in our judgment, there is no room to doubt that the claimants, whether considered as citizens of the United States or as subjects of France, consistently adhered to the constitutional government of the Union, and gave no voluntary aid or encouragement to the late most wicked rebellion.
    One of these claimants being a subject of France, the law of July 27,1868, requires that we should show, in order to maintain our action, that by the laws of France citizens of the United States are accorded the right of prosecuting suits against that government in its own courts. This fact having recently been found and determined by this court, in the case of Rothschild etal.Y. The United, States, (ante,p. 204,) we presume the court will adhere to that decision, or rather that that decision, pursuant to the understanding heretofore had, will govern all future cases where the French law is involved, and we need not, therefore, renew the discussion of that question in this case.
    Assuming that the claimants have made out a case which entitles them to a judgment under the statute, it onty remains to determine the amount of their recovery. Under the law they can only recover the net proceeds of their cotton which have been paid into the national Treasury, and to ascertain what these proceeds were is a question the solution of which is attended, we confess, with some difficulty, by reason of the fact that portions of the cotton seized and shipped to New Orleans were sold at three different points, viz, New York, Boston, and New Orleans. In order, therefore, to reach an approximation as to the net proceeds, we shall be compelled to determine what the cotton sold for at these several points, and then average the net proceeds. This is the rule adopted by this court in'the case of John N. Mott v. The United States, (2 O. Ols., 363.)
    This rule applied to this case makes the average net proceeds $218 74 per bale.
    In conclusion, we have only to say that we insist that we have fairly established the ownership, seizure, and sale of the one hundred and seventy-nine bales of cotton claimed in the petition, and that we respectfully ask for judgment for the net proceeds thereof, which have been paid into the Treasury, and which amount 'to the sum of $30,154 46.
    
      ■Mr. Alexander Johnston for the defendants.
   Drake, Oh. J.,

delivered the opinion of the court:

The principal question of law involved in this case rests upon the following facts: .

The claimants, prior to and during the war of the rebellion, were residents of and merchants in the city of New Orleans.

On the 20th of February, 1862, they sent their travelling clerk into the interior of the State of Louisiana, to collect debts due them, and gave him authority to purchase cotton and sugar for them. At that time New Orleans and the parts of Louisiana into which the clerk was sent were in the possession and under the control of the rebel confederacy.

On the 27th day of April following, New Orleans was occupied by the military forces of the United States, and was held by them during the remainder of the period of the war.

On the 14th of July following, the clerk of the claimants returned from the interior of Louisiana to New Orleans, having, while absent, purchased for the claimants, in districts held -by the rebels, one hundred and seventy-nine bales of cotton. The purchases were in nine or ten small lots, at different places, and the cotton was left at the several points of purchase in the parish of St. Landry, where, in April and May, 1863, it was seized by the military forces of the United States, and sold, and the proceeds paid into the Treasury.

Some time about March or April, 1862,” one Avegno, being about to go from New Orleans to the parishes of St. Martin and St. Landry, was requested by the claimant, Lapene, to remit to tlie clerk aforesaid, then travelling in those parishes, the sum of $4,000 or $5,000, and to assist said clerk in his business of buying- cotton, sugar, &c., both of which Avegno agreed to do, and in May following, at New Iberia, in the parish of Iberia, then under rebel control, he delivered to the clerk $5,000, consisting of “bank notes,'Confederate money, and shinplasters.” With this money, and other moneys collected by the clerk on debts due the claimants, the cotton in question was purchased, and the question is, whether the purchase, under the circumstances stated, was a violation of the non-intercourse laws of the United States, or of the principles and rules of public law prescribing commercial non-intercourse between belligerents.

The case is in one respect different in its facts from any previously decided in this court. The point of difference is in this, that at the time the clerk was sent from New Orleans into the interior, and at the time Avegno was requested and agreed to remit to the clerk the sum of money, named, the whole of Louisiana was in possession of the rebels; but before the money was delivered to the clerk, and before he purchased any of the cotton, the army of the United States captured New Orleans, and thereby placed the claimants within the lines of the Union army, while both the clerk and Avegno were, by the fact of the capture of that city, left outside of those lines ( and within the rebel lines.

Had the sending of the clerk into the interior, and the sending of money to him, taken place after the capture, the case would be almost identical with that of Ensley, decided at the present term of this court; but as both those facts occurred before the capture, this case does not 'come within the rule laid down in that.

The ground upon which it is held that a person buying property in the enemy’s country, in violation of the law forbidding-commercial intercourse with that country, cannot maintain an action here for the proceeds thereof, is that his purchase of the property, in violation of that law, vested no title thereto in him.

The question, then, in this case is, whether the claimants had title to the cotton in question. If it was bought in viola- ' tion of that law, they have none; if not so bought, their title is good.

In United States v. Anderson, (9 Wallace, 56,) it was held that commercial intercourse, during' tlie war, among the people inhabiting tbe rebel territory, was not illegal as to the United States, and therefore not invalid, and that a loyal man there might lawfully buy commodities of rebels. This seems to us to settle the rights of the parties in this case.

Had the claimants, at the time of the capture of New Orleans, been in the interior of Louisiana, where their clerk then was, and had they bought cotton as he did, we should, under the ruling in that case, hold that they had not violated the law of non-intercourse, and, therefore, had acquired a valid title to the property; for in making the purchase they would not have passed through the military lines of the government, or in any way carried on commercial intercourse over those lines.

The case is in no proper sense different when their agent, who had been sent there before the capture of New Orleans, found himself, by that capture, separated from his principals. If he then proceeded, without further intercourse with them, to execute the agency created before the capture, and which, when created, was, so far as the laws of the United States wore concerned, lawful, he was doing no more than the principals might have done if they had been there; and we know of no principle of law or statutory provision which would make his acts void. Had the purchases made by him been the result of intercourse between the claimants and him after the capture, and consequently across the lines of the army of the United States, the case would be within the ruling of this court in Ensley’s case, and no recovery could be had of the proceeds of any cotton bought under authority conveyed by such intercourse; but there is no evidence of any such fact, and the case, therefore, is simply one of the performance of an agency within the rebel lines, created by parties living within those lines when the agency was created, but who, by the movements of our army, were afterward brought within the Union lines, and between whom and their agent no intercourse was had across those lines while he was executing his agency.

In our opinion, the fact of the capture of New Orleans did not terminate the agency of the claimants’ clerk; the purchases made by-him vested the title to the cotton in the claimants;- and their loyalty having been established, they are entitled to the net proceeds of the cotton.

The cotton captured in Louisiana in the spring of 18G3 having been partly sold in New Orleans, partly in Boston, and partly in New York, bringing a different price in each of those places, and it being quite impossible, from the evidence, to ascertain at whieh point the cotton of the claimants was sold, their counsel insists upon their being allowed the average net proceeds per bale at those three points, viz, $218 74; but we see no difference in this matter between this case and that of Haler, (4 O. Gis. B., 372,) where it was held that the cotton having beeu traced only into the hands of the quartermaster at New Orleans, the average of the net proceeds of all the cotton sold there should be the measure of the claimants’ recovery. That average Avas then ascertained to be $192 per bale, and that amount is allowed in this case.

The judgment of the court is, that the claimants recover of the defendants the net proceeds of one hundred and seventy-nine bales of upland cotton, being $34,308.  