
    BLAKELEY’S CASE. Thomas M. Blakeley v. The United States.
    
      On Demurrer.
    
    
      A permit is given during the war of the rebellion by Major General Grant to a loyal citizen to pi'e-pare for market certain cotton in Louisiana, on such terms as he and the owner may agree upon. They agree that the claimant shall receive one-half of the cotton. Louisiana at the time is in a state of insurrection, and all commercial intercourse is suspended by the President's proclamation under the act of Y&th July, 1861, 12 Stat. L., p. 257. After the cotton is prepared, but before it is divided, it is seized by the agents of the Treasury Department as captured and abandoned property.
    
    Preparing cotton for market within one of the insurrectionary States during the war of the rebellion, under an agreement with the owner that the claimant should have one-half of the cotton, is “ commercial intercourse” within the meaning of the act 13th July, 1861,12Stat.L., p. 257, and is not legalized by the permit of the commanding general.
    The Assistant Solicitor for the defendants :
    The petition in this case avers :
    1st. That the claimant is a citizen of the United States, resident in the State of Missouri, and that he has at all times borne true faith and allegiance to the government of the United States, and that he has never voluntarily given encouragement to rebellion against said government.
    2d. That on the 25th day of March, 1863, he received a permit from Major General.U. S. Grant to prepare for market cotton grown on the plantation of William H. Harris, of Madison parish, State of Louisiana, upon such terms as could be agreed upon between said claimant and the said Harris, and that, under said permit, he entered into an agreement with said Harris to pick, gin, bale, and prepare for market the cotton then growing upon the plantation of said Harris; that claimant was to perform all the labor and incur all the expense necessary to prepare said cotton for market, and to receive therefor one-half of all the cotton ho should pick, gin, bale, and prepare for market, and that, under said agreement, he prepared for market seventy-one bales of cotton.
    3d. That on the 2d day of July thereafter said seventy-one bales of cotton were seized by certain persons, who were known as treasury agents for the United States, as abandoned property, and that the same were subsequently sold by William P. Mellen, treasury agent for the United States, and that said Mellen retains the proceeds of said sale for the use and benefit of the United States.
    4th. That at the time of the seizure of said cotton no division thereof had been made between the claimant and said Harris, and that the same was in the joint possession of the claimant and said Harris.
    5th. That the claimant made application to the Treasury Department for one-half the proceeds of said cotton, and that his application therefor was rejected.
    It will be sufficient to invite the attention of the court only to the most important objections to this petition :
    1st. Major G-eneral Grant had no authority to issue the permit under which the claimant acted in making his agreement with Harris.
    It was the clear intention of Congress to take from the army all control of captured or abandoned property in the insurrectionary districts, and commit it exclusively to the treasury agents.
    By the 5th section of the act of July 13, 1861, (12 Stat. at Large, 257,) the President was authorized to proclaim certain States to be in insurrection against the government of the United States, and upon such proclamation being issued all commercial intercourse between the citizens of such insurrectionary States and the rest of the United States shall cease and be unlawful. The President, on the 16th day of August, did. issue the proclamation authorized by the above statute, and declared the State of Louisiana in a state of insurrection.
    2d. Even if the contract which the petition sets forth as having been made between the claimant and said Harris were valid, it was merely an executory contract, and no title to any portion of said cotton vested in the claimant until the delivery thereof to him.
    This cotton was grown upon the land of Harris, and, so far as the petition shows, continued in his possession until it was seized by the treasury agents. The title to the claimant in it could not become complete until it was separated from the whole mass by a division between the claimant and Harris, and the delivery of the claimant’s portion to him. There was nothing between these parties but a contract for the sale of this cotton upon the performance by the claimant of certain acts,, which were conditions -precedent to the existence of any right or interest therein on the part of the claimant. Delivery was essential to the perfection of the claimant’s title to this property.
    Hilliard on Sales, pp. 32 and 33 ; Gleason v. Drew, 9 GreenL, 79 ; Austin v. Craven, 4 Taunt., 644; Young v. Austin, 6 Pick., 280.
    Mr. John Jollifff for the claimant:
    If General Grant had no authority to grant the permit, still it does not follow that the contract is void.
    The claimant derived his title under his agreement with Harris. No act of Congress prohibited Harris from giuning, baling, and preparing his cotton for market upon such terms as he could best make. He could hire negroes to cultivate his cotton, and the contract would have been good. He could make the agreement stated in the petition upon the same principle.
    The petitioner avers that this cotton was in his possession and under his control, and this is admitted by the demurrer.
    It was, therefore, not abandoned property, and the agents had no right to seize it as such. Nor was it captured property, which applies only to property seized or taken from hostile possession.
    As the claimant has at all times been a loyal citizen, the property was not “ captured.”
    The fifth section of the act of July 13, 1861, prohibited “commercial intercourse” between States, and has no application to interstate agreements.
    Congress had the power to declare just what acts of intercourse should be forbidden'. It went as far as it thought it best to go. The laws of war cannot be invoked to supplement the act of July 13,1861. If all contracts whatever were void, then why should Congress limit the matter only to “commercial intercourse ?”
    The claimant avers that “ he had the possession and control of the cotton.” No delivery was needed, or rather a delivery had been made.
    He had labored upon the cotton, and was entitled to the possession of it until he should be paid for his labor.- Townsend v. Newell, 14 Pick, 332; Spring v. The S. C. Ins. Go., 8 Wheat., 268 ;• Bouvier’s Law-Die., word “Lien,” vol. 2, p. 47.
   LoRING, J.,

delivered the opinion of the court:

This case comes before the court on a general demurrer. The petition sets forth that the claimant is a loyal citizen, residing in Davis county, in the State of Missouri; that on the 25th day of- March, 1863, a permit was granted to him by Major Geperal U. S. Grant to prepare for market cotton grown on the plantation of William H. Harris, of Madison parish, in the State of Louisiana, on such terms as the petitioner and said Harris could agree upon, and that on or about the 28th of March it was agreed upon by them that the petitioner should have one-half of the cotton he should pick, gin, bale, and prepare for market; that afterward and under said agreement the petitioner prepared for market seventy-one bales of cotton, which on the 2d day of July, 1863, in Madison parish, in the State of Louisiana were seized by agents of the treasury, and sold at Memphis, in the State of Tennessee, and the proceeds are held for the use of the United States.

To the petitioner’s claim it is objected on the part of the United States that the State of Louisiana had been declared by the President’s proclamation in a state of insurrection, under the act of July 13, 1861, 12 Stat., 257, and that the proclamation was in full force at the time of the transactions stated, and that by the act cited, all commercial intercourse between the citizens of Louisiana and the citizens of the loyal States was forbidden and unlawful.

And we think the objection must prevail. The transaction between Mr. Harris and the petitioner was certainly a commercial transaction, as it acquired to and vested in the petitioner one-half of the seventy-one bales of cotton; and for such intercourse no license is shown other than the permit of General Grant, and no facts are stated which would give to that, legal effect, and we cannot infer or presume them.

The judgment of the court is that the demurrer be sustained, and the defendants go without day.

Chief Justice Casey dissented.

Judge Peck did not sit in thi3 case.  