
    No. 1364.
    The State of Louisiana v. The Louisiana State Bank—W. Bailey, Intervenor.
    A proclamation by the President of the United States, deriving its authority from an act of Congress, has, irom its date, all the authority of positive law.
    Purchases of cotton within the Confederate lines, during the late war, under military sanction, were in direct contravention with the statutes of the United States and the proclamation of the Pro- , . sident, and were therefore-void.
    Where transactions that were illegal, have beoome áccomplished facts, they cannot be affected by any action oi tne courts.
    Where the State invokes tho aid of its courts to enforce its claims against its citizens, they may avail themselves of every legal defence against the State that they can against auy other suitor.
    The bonds and treasury notes of the State of Louisiana, issued under the authority of the act of the Legislature of 23d of January,’1862 ontitled an aot to raise money for the¡State treasury, being emphatically a'ttind for military purposes, designed to aid the cause ot the .rebellion against the United States, are absolutely null and void; and no action lies either by the State or any other holder to entorce their payment*
    A resolution of the directors of a bank, authorizing the president to release an agent from al: liability on account of transactions with the bank, tog- ther with the release, are admissible testimony, where his competency as a witness is attacked ou the score of interest.
    In a case wnere tho revolution of 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.
    Private property temporarily sequestered in time of war, reverts to the former owner on the restoration of peuce.
    The burden of proof is on the party claiming cotton or other property, that he alleges is in the possession of another, and he will be entitled to recover only the quantity that he succeeds in identifying by proof.
    L from tbe Fourth District Court of New Orleans, Théard, J.
    
      té, Herron and Lynch, for plaintiff and appellant.
    
      Lacey, SuUiip.S'and Hughes, for intervenor and appellant.
    
      Roselius <& Philips Toney, for defendant and appellee.
   IiiSiiET, J.

In the year 1862, there was standing on the books ‘bf the Louisiana State Bank, to the credit of the State of Louisiana, the sum of four hundred and sixty-two thousand seven hundred and fifty-two dollars and thirteen cents, and. the bank, having then in its vaults, in “Confederate bills,” about a million of dollars, including the State’s balance, applied to Gen. Shepley, Military Governor of Louisiana, for permission thinvest this Confederate fund in cotton, within the Confederate lines of military occupation, in order from the proceeds thereof that the bank might be’ enabled to pay its debts to the State and to its other creditors.

The permission, under the sanction of the Commanding General of the Department of the Gulf, was granted; and under it the bank-succeeded in purchasing, within the Confederate lines, a large quantity of cotton, of which it saved, and brought to New Orleans, seven thousand and fifty-two bales, which after the United States government liad-withdrawn its quota, say fourteen hundred and two hales, and all commissions for purchasing, etc., and all costs and charges had been paid, yielded net, the sum of five hundred and seventy-two thousand three hundred arid sixty one dollars and eighty-three cents, out of which sum held by the bank; the State now seeks to be paid its balance.

William Bailey intervened in the suit, claiming the cotton received by the bank at New Orleans, to be his exclusive property. !

The bank’s defence, which will be specially noticed hereafter, travéfses' the claim set up both by the State and the intervenor, and there is also,’ on the part of the bank, a plea in reconvention against the State.

The State and the intervenor have appealed from a judgm jBL.r(&dered wholly against them by the District Court.

It is indubitable that the traffic in cotton, which the bank the military to engage in, was illicit, being in conflict with of the act of Congress of 13th July, 1861, and the proel President of the United States of the 16th August next f proclamation, deriving its authority from the said act, ha> all the authority of positive law.

The District Court of the United States for the South of Illinois, had occasion in the matter of the, United States cotton, G. A. Lemore & Co., and others, claimants, to in chases of cotton made within the Confederate lines u tion by the bank, and pronounced them illicit and i direct contravention with the United States statute i above referred to.

This ruling of the United States Court meets ou presumption of power in the Commanding Gener mercial intercourse between the inhabitants of districts can arise, when its exercise conflicts, law.

But does this illegality of the bank’s contracts f ton within the Confederate lines, preclude, the co the State’s claim, to be paid its balance, unde agreement entered into between the bank and <

We think not, for,' as was well said by the Supr States in Brook v. Martin, 2d Wallace, page which were illegal, have become accomplished facts, and they cannot be affected by any action of the Court in this case.”

“There is,” said the Court, “a great difference between enforcing illegal contracts and asserting title to money which has arisen from them,” a difference distinctly made in Tenant v. Elliot, 1 B. and P., 3; Farmer v. Russell, id. 69, recognized and approved by Sir William Grant, in Thomson v. Thomson, 7 Vesey, 473, all of which cases were reviewed in McBlair v. Gibbes, 17 How. 232.

It may be asserted as a point conceded, which the bank does not gainsay, that if anything is due by the bank to- the State, it is recoverable in lawful money; but the bank set up a defence against the State, which would seem, upon its bare statement, to involve the State in a dilemma; which is, that the State’s claim really represents the unpaid balance of the price of certain State bonds which the bank was compelled to take, amounting-to one million of dollars, and which the bank still holds, a fact admitted by the State, for in the brief filed in this court in its behalf, it says: “On the 23d October, 1862, the State of Louisiana stood with a credit-of $482,752 13, on the books of the Louisiana State Bank, proceeding from 1 the undrawn balance of the sale of the bonds, issued by the State and purchased by the bank.”

Now, the bank’s position is this: These bonds are either legal and valid; or they are illegal and void ab initio; and the relation between the State and the bank is either that of creditor and debtor, or of buyer and-seller.

If th$ bonds are valid, the bank holds enough of them past due to compej¡^|[^he State’s balance, and to justify a judgment in reconvenyor against the State; if the contrary, the State cannot by court an action to recover any portion of their price, wever, strenuously objects to the connecting, in any man-' for which it claims entire immunity, with the bonds k, which it repudiates, and in this connection it argues: ither by the act of the State in convention or otherwise,: lovernment in the exercise of the war-power which it over the States whilst engaged in the rebellion, have ,nd an object of abhorrence; if they are to be looked pnihilated, they can be invoked as a title by the bank ;ossible connection with the contract under which tho li transformed and actually novated the character of the bank. This contract, says the State, is made in ansaction, which does away with anything that does ‘^visions bodily and substantially; and if the bonds ihe nonentity, and the repudiation denounced against ey can be pressed upon the State by the only means ptional custom, by proper application to its constinot in the indirect way in which their redemption

proposition, it may be observed, that when the f its courts to enforce its claims against its citiemselves of every legal defence against the State [other suitor.

The State seems impressed with the idea, that Gov. Shepley was actu-/ ated by one sole motive, in permitting the bank to invest its Confederate, bills beyond the United States military line; and that was, that the State in any event, should be paid its balance in good money, It loses/ight of the fact that considerations of public policy entered deeply into the reasons for the acquiescence of the military with the bank’s request.

“It was,” as Gen. Shepley says in his depositions, “to throw thereby into the circulation of the rebel States a million of dollars of Confederate notes, then locked up within our lines, and thus tend to that extent- to depreciate their currency; besides, if the cotton bought with Confederate., money should be brought within our lines, many millions would ,be drawn from their revenues and added to those of the loyal States, without returning anything of value, and only that which would weaken them.”

The Military Governor was no doubt solicitous, that the large balance-apparently due by the bank to the State, should be paid in lawful, money; it could hardly have been supposed or intended, even by him, and much less by the bank, that when the claim of the State was asserted, it-was to be paid absolutely, and in any contingency, regardless of what ,- might be at the time the actual state of account between the State and, the bank.

That the bank should be precluded from showing that it really then owed nothing to the State; that the claim set up by the State was never due, or that if once due, it had been extinguished, and that the State,. once its creditor, had become its debtor.

We can find nothing in the understanding, which the State clings to, so, tenaciously, to sustain a position so unreasonable, so inequitable as that.

All that was expected from the bank was that, out óf the proceeds of the cotton, it should pay the debts it lawfully owed, which debts underwent no transmutation or novation by the agreement, but retained their original character; whatever that was, as regarded the obligations, the investment of the Confederate money being merely a means afforded the bank to discharge them. ,

The bank’s defence against the State involves, as between them, the whole matter in controversy, “the balance” and “thebonds,” and as' that defence is twofold, and in the alternative, it becomes, therefore,, necessary that the true character of the bonds should be ascertained and . determined.

The Judge of the lower court made a discrimination between, the treasury notes and the bonds, both issued by the State under the provi- - sions of an act of the Legislature of the State of Louisiana, approved,. 23d January, 1862, entitled “an act to raise money for the State treas-. ury,” deeming the former emphatically a military fund, expressly designed for military purposes, and the latter a fund to defray the lawful expenses of the government.

The Judge attached some importance to the fact, that the Commanding General, exercising complete control over the whole assets of the bank, only seized and confiscated out of the State obligations, consisting of the two classes above named, the treasury notes, leaving thebonds in possession of the bank; and from that circumstanoe, and his reading of the act of the 23d January, 1862, he came to the conclusion that the treasury notes were'null, but that the bonds were valid.

The treasonable character of the treasury notes, impressed upon their facé> not discernable upon that of the bonds, was the cause of thedistinctionNnade by the military between them, and caused the seizure and confiscation of the former only.

A careful perusal, however, of the statutte which authorizes the issue of both notes and bonds, has satisfied us that there is no material difference between1 the one and the other.

The great end and object of both notes and bonds, was to furnish aid in carrying on the rebellion against the United States.

The act of 1862, if interpreted solely by its enacting clauses, would sufficiently indicate what was the design and object of the Legislature in passing it, but calling in aid the preamble of the act, which, for the purpose of interpretation, but not to control the enacting clauses, is deemed a part thereof, (see Montesquien v. Hale, 4 La., page ) it becomes evident that the proceeds of both treasury notes and bonds were to be used indifferently in the prosecution of the rebellion.

' That this object was uppermost in the Legislative mind, is palpably clear from the tenor of the preamble, which is as follows:

“Whereas, the State of Louisiana has expended large sums of money, drawn from the treasury for military purposes, and contemplate further expenses thereof; and whereas, the State has assumed towards the Confederate Government the payment of the Confederate war-tax, the levy of which has been authorized by an act of the Provisional Congress, approved the nineteenth day of August, eighteen hundred and sixty-one; and whereas, during the existing state of affairs, the collection of taxes cannot, with sufficient certainty, be relied upon to meet the accumulated wants of the treasury; therefore, it is resolved, that “the Governor of the State shall borrow in behalf of the State, from time to time, as the 'wants of the treasury may require, a sum not exceeding seven millions of dollars, either by the issue of bonds or treasury notes of the State, or of both, provided that the treasury notes shall not exceed in amount two millions of dollars. ”

: The proceeds of the bonds are to be deposited in the treasury of the State to the credit of the general funds, and the treasury note shall be deposited with the State treasurer, who shall receipt therefor to the auditor, and the amount so deposited shall be credited to the military fund, whieh is hereby created, and which shall be used exclusively for military purposes, and to pay the debts contracted by the Governor for military purposes.”

There is nothing in the act to designate the particular use to which the bonds or their proceeds were to be put; but in order to ascertain whether at least a portion of them was not intended to advance the cause of the rebellion, it is well to refer to the 8th section of the act, which is significant.

" It provides, “that for the payment of the current interest that may accrue upon the bonds to be issued under this act, and of the principal of the bonds, as the same mature, it shall be the duty of the auditor of pub-lie accounts, within thirty days after he. shall have, received -the assessment rolls from the several parishes and municipal corporations:

1. To determine the rate of taxation, etc.

2. To notify the -several sheriffs and tax collectors of the rate of taxation, as ascertained and fixed by the said auditor for the payment of.said •current interest and principal (of the bonds) said rale of tqxjition.shall he designated and known as the war-tax, and said war-tax -as. annually .ascertained and fixed, is hereby levied, etc., and it shall be the duty .of the said sheriffs and tax collectors to collect the said war-tax, and the collection of the same shall be enforced as the law provides for the.collection of other taxes.”

If the bonds or their proceeds were intended solely .to defray the ordinary expenses of the government, why should the taxes to be-leviedrto meet them be designated and known as a war-tax in contradistinction to other taxes? ,.

“ Grim-visaged-war ”-pervades. the statute from one end. .of it.tq.the other: and the only difference between the-treasury notes and the bonds is, that the first were to be used exclusively for war purposes, and'the last-to aid the rebellion, and for other purposes besides. But in .the eye of the law, the notes and the bonds are equally tainted with the dye of treason; and no court of justice would undertake the task of deciding which particular bond, or what portion of the proceeds thereof, were ,to !be used for lawful, and what-for illegal purposes. It suffices to stamp the whole issue of State bonds, under the act of 23d January, 1862, with -the-seal of reprobation, that they were to be used, if at all, in attempting to overturn and disrupt the general government.

These bonds, being the basis of the State’s claim against.tbe hank, no action lies for the recovery thereof,-and the plaintiff’s action, as well as the defendants’ plea in reconvention, must be therefore dismissed.,-

We liave now come to the second branch of the case, which is the intervention of William Bailey, who sets up exclusive:title as owner to all the cotton in the bank’s possession.

In order to establish his ownership of the cotton, beyond-the presumption of the law, resulting from its possession of it, the bank produced in court several witnesses, the principal one being its agent, employed to invest its Confederate money in cotton purchases, as before stated.

This witness was objected to by the intervenor, on the score of interest and the resolution and -release granted him by the bank to render him competent to testify in the suit, -were also objected to.

As we deem the release sufficient to discharge Stevenson from all liability to tbe bank, it is -unnecessary to examine into the question of interest.

Two objections are urged against tbe release; first, that the resolution upon which it was based-was void, because the meeting of the board-of directors which authorized the president of the bank to grant the release, was only composed of five instead of nine directors, .as required by,the charter, it being, however, conceded in argument, that -by-subsequent legislation a less number-than nine might act in the premises, .provided the amendment to the charter bad-been duly accepted, which it.devolved on the bank to prove. This preliminary evidence, on the part of the bank, was unnecessary.

It was held in Dundridge v. The Bank of the United States, 12 Wheaton, 64, that the maxim omnia prcesumuntur rite et solemniter essa acia, was deemed applicable to corporations, and in that case, the principle was clearly enounced, “ that acts done by a corporation, which presuppose the existence of other acts to make them legally operative, are presumed proofs of the latter.” So, in relation to the question of acceptance of a particular charter by an existing corporation, or by a corporation already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the facts of acceptance may be inferred. See also the case of Palfry v. Paulding, 7 A. 364.

On this ground, therefore, the objection was overruled.

The resolution to release Stevenson was passed expressly to enable him to testify in the suit between the bank and the intervenor.

There is a verbal inaccuracy in the first resolution, which is beyond criticism, as it explains itself.

By it the president of the bank is authorized and empowered to execute to the said John A. Stevenson a full release and acquittance of all liability to the bank for any cotton, money or claim belonging to the bank, which shall or may be adjudged to, or to be paid to the said William Bailey. The word “belonging” should have been written claimed by, as these things could not belong to the bank and to Bailey at the same time.

' The release is sufficiently explicit and binding to protect Stevenson from any liability whatever to the bank, on account of his agency or otherwise; or from any obligation to return to the bank any part of the compensation or commission for services rendered in cotton transactions for the bank, and the release conforms sufficiently to the resolution.

Both the resolution and the release are admissible testimony, and Stevenson is a competent witness to testify in the case.

In order to substantiate beyond the legal presumption of the bank’s ownership of the cotton, brought by it to New Orleans on the Doubloon, Louis D’or, Beauregard and Texas, it adduced,other proofs for the purpose of showing when, how and where the cargoes of these boats had been acquired and shipped.

The most important of the bank’s witnesses for this purpose, was its special agent in all its cotton transactions, Stevenson and his evidence, in some particulars, is sustained by that of other witnesses, who were engaged with him in purchasing cotton, storing it at different points, and transmitting it to New Orleans on these boats.

It seems that a large portion of the cotton purchased for the bank was not bought by Stevenson himself, but by sub-agents, and purchases were made at different times, and scattered through a large extent of country in three States, Louisiana, Texas and Arkansas, it would be difficult therefore for Steyenson to speak with great accuracy, as to the loading of the four boats mentioned with the bank’s cotton, and identifying it with that purchased by or for him in 1863; that the bank nevertheless made out a strong prima facie’ Case, and it devolved upon the intervenor to rebut the bank’s evidence, and to prove conclusively tlmt the cotton claimed by liim was really his property.

This he undertook to do, and produced for that purpose a great many' witnesses.

He shows, that whilst the Federal army was at Alexandria, on Red’ River, he had collected together in that town some five or six thousand' bales of cotton.

That this cotton, bearing the mark “A. Q. M,” with “W.B.” on end, or" a large portion of it had been shipped on board United States trans-' ports, lying off the town in the river, and bound for New Orleans; but that the Federal army, having met with reverses, all the cotton was thrown ashore, in order that the transports might be used’fór other purposes.

He proves that a part of this cottoii was afterwards seen in Shreveport and at New Orleans, on board of the steamboats Doubloon, Texas, Louis, D’or and Beauregard.

The witnesses, who testify on this point, identify a portion of the cotton, seen by them, as before stated, at Shreveport and at New Orleans, when these boats brought the cotton hither, as the same cotton they had seen as the properly of Bailey, at Alexandria.

To rebut this testimony, the bank adduced proof to show that Bailey, the intervenor, never had more than a few hundred bales in Alexandria, and produced a contract between Bailey and one Simpson, an Englishman, entered into about the time of the evacuation of the town by the Federal army, with the view of saving his cotton from the Confederate army, of all he had in Alexandria, and which only amounted, to five hundred bales. Further, that upon the evacuation of Alexandria, the town was wrapt in flames, and that all the cotton therein was destroyed.

That some bales of Bailey’s cotton were got out of the town, and sent up the river, but that was accounted for, as it was all sent into the interior of the country.

Bailey explains all this. He shows that the sale to Simpson was made whilst the bulk of his cotton w»as on the transports, several days before the evacuation of Alexandria, and was thought to be safe, and that the five hundred bales mentioned in the sale was what remained in the town for want of means of transportation; and it was. in tended to protect that from seizure by the Confederates.

As to the conflagration, Bailey accounts for his cotton not being burnt, by the fact that it whs thrown ashore hurriedly from the transports all along in front of the town, under the bank of the river, and. that as the wind was at the time blowing across the river towards the town, and the fire being above the bank, his cotton was thereby protected and saved.

The intervenor, Bailey, proves by several witnesses, that some six hundred bales of his cotton, which they identify by his marks on the bales, partially erased, although not totally effaced, with the same kind of bagging, and having the same appearance of his bales, seen by them at Alexandria, were identified in the four boats, both at Shreveport and Sew Orleans.

In a controversy like this one, that there will be a vast deal of conlicting testimony, is to be expected.

We have examined the whole of it, whether adduced by the bank or the intervenor, and on drawing oar conclusion in weighing it, we are unable from the record to perceive why the witnesses on both sides are not erititled 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 fiver 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; ahd‘ 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 ease, the rule laid down by Wheaton, in his Elements of International La'w, 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 tho case of conquest, they revert to the former owner on the evacuation- of the territory occupied by the public enemy.”

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

Eyorn 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 priqe of the interven- or’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.

Hvhan, C. J.

For the same reason that caused us to decide in the ease 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 a,ct-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 Leg-, islature, 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.

Ilslev, 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 possfession 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, aváilable 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 á 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 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 collon purchased by the bank in 18,63.”

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 interyenor 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 Pickett’s plantation, above Shreveport, and the remainder of her cargo" was put on at Shreveport, with cotton, partly brought on wagons, arid' 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 the1 Doubloon and Texas, generally covered with rotten baling arid 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 weredeposited 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 wore shipped at, or consisted of cotton brought from, those *' designated points.

Prom 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, figured the mark “A. Q. M.,” “D. N. W.,” “W. B.”

That the bulk of this cotton had been shipped in góvernnlent trains-' ports 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 bf 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 Bed Biver 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. Moliere and T. H. Bradley, aud this is the only testimony we deem it'' necessary to examine, as we will consider established the factj that the' intervenor had in Alexandria a large quantity of cotton, with descriptive'' marks, which escaped destruction by fire.

J. J/. 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 12/A 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 arid Texas, lying at Shreveport, to’ inspect their cargoes, to know if they had any contraband cotton on -bpárd.' thesfiboafe were deeply.lacíen. líe found all the cottonmarked ‘‘ J. A. S.,” which "Breckinridge had tol'd.him'meant John A. Stevenson; -and. “-with ¡that'.lie had .nothing to, do, as it had been, arranged.”

But sfcill he proceeded to' examine this J'. Á..-S. cotton, and he found ,on the hale?-so.-marked other partial marks, W; and-B., WB., and some on thn'edge “A. Q. M.”

The J. A. -S- Ivas over some, other mark that had evidently'been changed; ■He remembered no mark of two, letters.

The bales' were uniformly, not remarkably laige, and wefe covered with india bagging apparently liew.

die.does not know'how-piany bales there were of this méde or peculiarity; but ■Jie saw'.enough Jo 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., pn the bales inspected by Coates, do .not correspond-with the mark on the .Bailey,. Alexandria cotton,'.which 'was WB. connected. If iri cargoes Of cotton, densely packed, Coates could--see,enoiigh jto lead him to suppose the whole cargo was the same as the'bales he" dicl examine, -still no identity iá shown between these-cargoes and the Alexander cotton, unless the A. Q. M. and the new india bagging oh hales, 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 maiked 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 máte of that boat had no knowledge of it, apd that not a bale was moved .to make the inspection.

Coates .'afterward*?, .in his said'¡capacity of-revenue officer,-made an .irtspeetion 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 Steyenson 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 deeiphering .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.

Ho w-,many-bales so marked were on the Louis D’Or, Coates did not say,, nor doe„s he, say that'from .what he did see on that boat, he w,as led ,-tó 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 I8fch June, as .from the account Coates gives of his movements from his first arrival in Shreveport, it could .only-have been ¡made then.

Be this as it may, apart from the hugeness of the supposition of Coates, as to the character of the whole of the. cotto’n on the .Doubloon and Texas, his testimony, when analyzed," amounts to very little!

John W. Martin, the next witness, followed various avocations', principally that of steamboat man, and was' in Alexandria between. 1862 and 1864, and was frequently on Bailey’s plantation! Bailey had a large press, and , his bales would average 550 lbs. Bailey had, he supposes, some 4.000 or 5,000 bales in Alexandria; of which there must have been some 3,000 bales in new india bagging. He saw Rachel marking it almost every day D. N. W., on the edge of the bales, which had in the original mark WB. He only looked at this, cotton casually, and his attention .was not particularly called to it; yet he recognized this cotton on board of the Louis D’Or and Beauregard at Shreveport, some fifteen mouths afterwards. .

He remarked to people about there, “ that must be some of old man Bailey’s cotton.”

It had been partly obliterated, by tearing the bagging, apparently by design.

On the Louis D’Or, there “ must have been ” some 300 or 400 bales, and on the Beauregard some 100, 200 or 300 bales! and the two boats must have had 500 or 600 bales.

He was watching cotton casually, but saw nothing particular about the cotton on the Louis D’Or and Beauregard.

His attention was first attracted to the cotton, by the marks being partly obliterated, and the bagging new, and the bales large, and its resembling the bagging he had seen on the bales at Alexandria.

He cannot tell exactly now, what portions of the WB. were obliterated, and what remained; enough, however, to distinguish the cotton. He examined 200 or 300 bales, on which the mark was obliterated, but lie does not know that he examined any of them particularly.

He pulled the bagging aside, and examined some 4, 5 or 6, but he did not see the quartermaster's mark on a single bale; only the bagging ‘torn off at the edge. He did not examine any particularly; there was no use to do so; eight or ten inches were cut out. He was pulling down the bagging, so as to make the letters WB. come together. When he brought •the ragged parts together, he discovered it was the same mark he had seen in Alexandria.

It may be observed here, that Martin was employed by McKee .to watch for Confederate cotton. His testimony amounts to this: He saw in Alexandria in 1864, a large pile of cotton, some 3,005 bales, which he looked at casually; but he remembered the mark WB., D. N. W., but not the A. Q. M., the size of the bales, and the kind of bagging which" covered them. He finds the WB. on a few bales; the mark obliterated on 300 or 400 on the Lo.uis D’Or, and on the Beauregard 100, 200 or 300 bales; in all, some 500 or 600 bales. There was not a sign of the quar•termaster’s mark upon it; only where it might have been, and the Court is to infer from this testimony, that there "mud have been” 500 or 000 bales on the two boats, belonging to the intervenor.

The next witness is John F. Moliere.

At the request of the intervenor, he accompanied him to the levee at New Orleans. This was about the middle of June, 1865. They went on board several boats, the Texas, Doubloon, Frolic and Pauline, (is not positive as to the Pauline) to see if they had any of Bailey’s, the intervenor’s cotton on them. This witness says he had seen Bailey’s cotton at Alexandria. He had there some 4,000 or 5,000 bales, maybe more. This cotton was marked D. N. W., A. Q. M., WB. The bagging covering it was new India bagging, which the quartermasters had brought pp from New Orleans, to distribute among loyal people. Bailey’s bales were very large, say 450 or 500 lbs.

There was a peculiarity on the baling, which Bailey explained to him, sis being caused by a defect in his press.

The rope was so far from the end, being about eighteen inches, that it made the ends of the bales swell out unevenly, thereby causing a difficulty in storing it. •

Most all the cotton had the appearance of being the same lot of Bailey’s cotton he had seen at Alexandria. On this lot (on the Doubloon, Texas, Frolic and Pauline) some 25 or 30 bales had on them the WB. quite visible.

The mark was considerably worn, yet the mark WB. could be easily-distinguished on the 25 or 30 bales. He noticed the ends turning up, and they had the same appearance as those he had seen in Alexandria, the same india bagging in appearance, comparatively new, but it had been hauled about a good deal.

On the edges of the bales in some places, by turning up the ravelled part, you could see occasionally an A. or an M. Q. D. or a W. It looked as if the mark -had been intentionally defaced. How many the witness examined on these boats he does not inform us, nor on which of the four boats (Doubloon, Texas, Frolic and Pauline) he found 25 or 30 bales marked WB.

He went afterwards on the Louis D’Or and Beauregard, and found the WB. on 8 o.r 10 bales, but could see that the whole or most part of the cotton had been tampered with, ends cut off, edges cut and ravelled.

He did not look on the Louis D’Or and Beauregard to find the letters D. N. IF. A. Q. Ml, although he was employed by Bailey to hunt up his cotton. There might have been 50 or 60 bales on all the boats on which the witness could see a 1). AT. W A. Q. or At.

. On all the six boats, there were altogether 6,000 or 7,000 bales, out of which 2,500 or 3,000 bales had the same appearance by the bagging, defaced marks, raised ends, as he had seen in Alexandria, claimed by Bailey.

.What proportion of the 300 or 400, or of the 2,500 or 3,000 bales was on the Frolic or, Pauline, (neither cargo of which is in controversy) we are left to conjecture. This witness speaks of a striking peculiarity, not observed by the other witnesses, which would have been, from his description of it, a distinctive mark for identification; but how, in six or five boats, piled with cotton, forming a solid mass, and on two of which boats there was not a bale, any one could form any estimate or an approximate of the 2,500 or 3,000 bales of, or like, Bailey’s cotton, out of'compa'ct piles of 6,000 or 7,000 bales, it is difficult to conceive. -v ’

All that this testimony, if it were consistent ‘with itself, would prove, is, that on the Doubloon, Texas, Frolic, and perhaps the Pauline, the witness found some 25 or 30 bales, with the WB. and other characteristics, and this is rendered doubtful, by the iact that on two of the boats on which they were discovered, there was not a single bale claimed from the bank. 1

The WB. on 8 or 10 bales on the Beauregard and Louis D’Or would be more reliable evidence, if being employed to hunt up Bailey’s cotton, the witness had thought of looking on those boats for the occasional B. W. W., A. Q. M, which he failed to do.

The next and last of the four witnesses called to identify the intervenor’s cotton, is T. II. Bradley.

He was a printer by trade, and had lived in Alexandria, having known the intervenor eight or nine years.

He knows the intervenor had a large quantity of cotton there. He saw one Rachel and his son marking the cotton with [the letters D. N. W., A. Q. M., WB.

He only saw this cotton casually, and was not employed to examine it carefully. He saw it, however, sufficiently to recognize it again. Being in search of the intervenor, he found him at the levee at New Orleans, where the Doubloon and Texas were discharging their cargoes. • He was greatly excited, pointing out some of the cotton, which lie swore was his.

There “must have been” 20 or 25 bales that had WB. on them, in the same‘shape as that at Alexandria. There were not a great many that the letters B. BT.W. A. Q. M., could be seen; but some 150 or 200 bales had the bagging cut out of them. He could discover some portions of .the letters where the B. N. W. A. Q. M. had been put on. They had been cut out, but by putting the pieces tqgether, parts of, but not all of, the letters could be made out.

. Later, he found on the Louis D‘Or and Beauregard 15 or 20 bales with the WB., which could be distinguished, and some portions of other letters, where the B. N. W. A. Q. M. had been cut out, but on which was an occasional M. or A., etc., not the whole.

The bales were in a very ragged condition, but about 300 or 400 were found cut and marked.

At the request of the intervenor, he found his estimate of the portion of the cargoes on the four boats, which had a similar appearance with the Alexandria cotton, and adopted the identical estimate made by Moliere, 2,500 or 3,000 bales.

■ But, comparatively, few bales could be recognized by marks. This witness, however, who had. only seen the Alexandria cotton fourteen months previously, and whose attention had not been called to it, recollected the letters marked on it; their groups, and where they were marked, their size and appearance of the bales, the kind of bagging, indeed every particularity in regard to them, oxcept the very remarkable appearance of the bales; caused by a defect in the intervenor’s press, so well described by one other witness.

This is all the testimony in the recoi’d to prove identity between the cotton brought to New Orleans, by the bank, and that which the intervener had in Alexandria, and -as it'is upon that evidence that the whole, or a- large portion of the cargoes of the Doubloon, Texas, Beauregard and Louis D’Or are claimed for the intervenor, we have examined it thoroughly.

Reading this testimony, separately and collectively, and with the oarn■est deSire'to-ascertain the. truth and the whole, truth of the case, so as to award the cotton in controversy to the party who may prove his right to it, we are constrained to say that the testimony of the interveuor, poised against that adduced by the bank, which is irreconcilable with it, particularly as to the external appearance and condition of the bales, when "Shipped and when discharged at New Orleans, does not, except for a very fetv bales,'produce that legal certainty which is absolutely essential to the recovery of property to which title is asserted. , •

10 M. 419. 14 La. 455. 2 Rob. 27. 19 La. 206. So long as the presumption of the bank’s title, resulting from its possession of the bulk of the cotton, was not rebutted by contrary proof, it was not incumbent on it to show, although we think it did show, with reasonable certainty, when,- where,,- and how it. had acquired, the cotton sought to be taken from it.

It is true that Stevenson, the agent of the bank, occupies in the suit in intervention, a prominent position as a witness for the bank; but his .testimony, as to. his purchases and storing the cotton for the bank, does not seem to.be rebutted.

True, as we said in our first opinion, Stevenson could not be everywhere, but his sole occupation at the time was to attend to his purchases, and to have them put at available points. So far as he testifies, as to his illicit movements in purchasing cotton, storing and shipping it, it suffices to say his testimony is not rebutted.

With-the ' exception of thirty-five. bales on all the boats, which the intervénor’s witnesses say they positively identify by marks, and for which allowance will be made, we think the scale turns almost entirely against the intervenor. But were the balance equipoised, the fact that the District Judge who tried the ease, and who had ample opportunity to observe the deportment of each witness who was examined before him, and to see'hó w his evidence was given, decided the case of the intervenor ¿gainst him, in favor of the bank,

The cotton was shipped On the four boats, all of which left Shreveport without hinderance or molestation on the part of the vigilant government 'officials' there; who had made or caused to be made such important discoveries respecting their cargoes, and at the time.the claim in intervention was set'up, nearly all the cargoes of the four boats were in possession of the bank.- > - - - ,

In pari causa possessor hoheri debet, et pro rei possessore in dubio est ■prom'i/ntiandum.

'•Eroffi the thirty-five bales now awarded to the intervenor, must be deducted tlae government quota, one-fiftli, or seven bales; thus, reducing the number to twenty-eight hales.

Allowing for each bale, according to our first computation, ,one hundred and fifty-four dollars, it yields an aggregate of four thousand three hundred and twelve dollars, for which judgment will be rendered for tbe intervenor. , ,

It is therefore ordered, adjudged and decreed that our first judgment on the demand in intervention of William Bailey, be so amended .as to reduce the amount allowed thereby, to the sum of four thousand three hundred and twelve dollars, (84,312) and no more; and so far as our first judgment is not in conflict with our present decree, it is affirmed.

We concur in this decision.

Zenon Labaijve, Associate, Justice,

R. K. Ho weed, “ “

Tari arerró, J.

I think the judgment first rendered in this case should not be altered, and, therefore, dissent from the opinion of the majority of the Court.

Hyman, C. J., dissenting.  