
    Apperson vs. Bynum.
    1. Bills oh1 Exchange add Pbomissoey Notes. When demand will be excused. Although it is clearly settled, that as against the in-dorser, where a note is payable on its face at a certain place, it must be»there presented for payment, yet, when it has become impossible or impracticable so to present it, demand at such place is excused, and the indorser’s responsibility continues, as if presentment had been made.
    2. Case in judgment. Apperson, residing in Memphis, held a note made by Lundy on the 17th day of February, 1862, and indorsed by By-num, due at six months after date, and payable at the Branch of the Union Bank of Tennessee, at Memphis. At the maturity of the note, the Branch of the Union Bank of Tennessee, at Memphis, had ceased to exist; the city was in the permanent occupation of the forces of the United States; their picket lines were between the city and the residences of Lundy, the maker, and Bynum, the indorser; no demand of payment was made at the maturity of the note; afterwards, on the 29th day of May, 1865, demand of payment was made of the maker, at his residence, and notice of his failure to pay, given on the same day to the indorser. Held, 1, That no demand was necessary at the maturity of the note, at the place designated on its face, because it had ceased to exist, without any fault of the holder. 2, No demand was necessary to be made at the time, under the existing condition of the country, of the maker at his residence. 3, That the demand subsequently made of the maker for its payment, and notice of his failure to pay to the indorser, was sufficient to hold the indorser responsible.
    FROM MEMPHIS.
    The plaintiff in error, E. M. Apperson, surviving partner of tbe firm of E. M. Apperson & Co., was the holder of a promissory note, made by one William L. Lundy, dated at Memphis, the 17th February, 1862, for $15,221.09, payable six months after date, to the order of B. C. D. Bynum, the defendant in error, at the Branch of the Union Bank of Tennessee, at Memphis, and indorsed by said Bynum, the word “Memphis” being written just under Bynum’s name on the back of the note. The plaintiff in error brought his action on said note in the Common Law and Chancery Court, at Memphis, against the said Bynum as indorser, and filed his declaration containing four counts; the first setting forth that the amount sued for was due him from defendant as indorser on the note described fully in that Court, with an averment of presentation and refusal of payment, and notice to defendant. The second count, averring that at the time of the making and indorsing of said note, and for a long time preceding, a war was being waged between the United States and the so-called Confederate States of America. That at the time of making an indorsement of the note, the plaintiff, the defendant and the maker of the note were residents within the military lines of the belligerent, known as “the Confederate States,” and that Memphis, where the note was payable, was also within said lines, but that between the time of making and indorsement of the note, and its maturity, to-wit: On the 6th June, 1862, the military forces of the United States, conquered and occupied permanently said City of Memphis; that, at the maturity of the note, said city was so occupied with military lines around it, and that by law and military orders, all intercourse between the residents of said city and said military lines, and persons without said lines, were interdicted and unlawful. That, at the time of the maturity of the note, tbe Branch of the Union Bank of Tennessee, at Memphis, was removed from, and ceased to do business at Memphis, and that Lundy, the maker of said note, and the defendant, resided outside of the military lines of the United States, and within the lines of the other belligerent, so that demand of payment could not be made, or notice of dishonor given to the defendant. That the state of war continued, and Memphis remained occupied by the military authorities of the United States, with military lines around said city, and defendant and the maker of the note remained residents within the military lines of the Confederate States, and the said Branch Bank remained closed until the — day of-, 1865, whereupon, within a reasonable time, plaintiff caused the note to be presented to the maker; payment was demanded and refused, and notice given defendant. The third count avers in substance, that, at the time of making and indorsing the note, the maker and defendant were residents of Mississippi, and the Branch of the Union Bank in operation and doing business at Memphis, but that between the making of the note and its maturity, the Bank removed all of its assets to another State, and closed its banking house, and ceased to do business in Memphis until after the maturity of the note, and that by reason of the premises, no demand of payment of said note could be made at maturity. That between the time of making and indorsing the note, and the maturity thereof, the United States conquered and permanently held and occupied Memphis, and established military lines around the city, and between said city and the place of residence of the maker of the note and the defendant, and by military orders and tbe laws of tbe Congress of tbe United States, interdicted and made unlawful, all intercourse between tbe City of Memphis and tbe places of residence of tbe maker and indorser of tbe note, and that sucb intercourse was also interdicted by tbe principles of public or international law; wbicb occupation, orders, laws, and tbe residence of tbe maker and indorser continued until long after the maturity of tbe note, so that it was impossible to present tbe note for payment at maturity or to give notice to defendant.
    Tbe fourth count avers that on account of tbe occupation of Memphis and the country where plaintiff and tbe maker of tbe note and defendant lived, by tbe United States military forces, tbe United States being then at war with tbe Confederate States, tbe latter being a belligerent and public enemy, in whose territory and military lines tbe parties all resided at tbe time of tbe making and indorsing said note, and all commercial intercourse having been suspended, it was impossible to make demand of payment of tbe note, and give notice of non-payment to tbe defendant.
    Tbe defendant put in a plea of nil debit concluding to tbe country; on wbicb tbe plaintiff joined issue. At tbe June Term, 1866, tbe cause was tried before His Honor, Thomas Q-. Smith, and a jury. There was a verdict for tbe defendant; and a motion for a new trial and in arrest of judgment being overruled, tbe plaintiff tendered bis bill of exceptions to tbe judgment of the Court in overruling said motions, and appealed in error, to this Court.
    
      Estis and Jackson, for Apperson.
    Humes and Seats, for Bynum.
   Hakbison, J.,

delivered tbe opinion of the Court.

The proof in this cause shows the following state of facts: Lundy made the note sued on in this action, on the 17th February, 1862, payable six months after date, to the order of Bynum, the defendant in error, payable at the Branch of the Union Bank of Tennessee, at Memphis, and Bynum indorsed the note, the word Memphis appearing just below his name in the indorsement. Whether the word Memphis, there appearing, was written by Bynum, is not shown. The plaintiff in error, E. M. Apperson, is the surviving partner of E. M. Ap-person & Co., and became the holder of the note. On the 17th of February, 1862, when the note was made and indorsed, the maker, indorser and holder all resided within the lines and district of country of the Confederates, who occupied the country in and around the City of Memphis; the plaintiff residing in Memphis; the maker, Lundy, some ten or twelve miles south of Memphis; and Bynum in Mississippi, several miles south of Lundy’s, and south of Nonconnah Creek. The Branch of the Union Bank, at Memphis, where the note was payable, under the orders of the rebel General, Beauregard, moved its assets south, on the 28th of May, 1862, but the office was kept open by F. W. Smith, the Cashier, to answer the questions of any persons in the community who had any interest in the affairs of the Bank, to receive special deposits at the risk of the depositor, and partly, also, to prevent the occupation and confiscation of the property by the United States. From the 28th of May, 1862, until February, 1864, no general business was transacted, and its assets were not- returned until June, 1865. The military forces of the United States took possession of, and permanently occupied Memphis, on the 6th to the 10th of June, 1862, The United States picket lines extended around the city some two miles, and never extended beyond Nonconnah Creek, which creek was between Lundy’s house and Memphis. Their lines of permanent occupation never extended beyond from two to four miles from the city. The country south of that, was now and then occupied by the forces of each belligerent. Several witnesses examined, testified that in August and September, 1862, persons freely passed from Memphis to the neighborhood of Lundy and Bynum without difficulty, and came back in the same manner; but that the Federal picket lines surrounded Memphis.

Lundy, as it is shown, was also in the City of Memphis in the summer and fall of 1862. The witness, Ford, had, during that time, frequently gone out to the neighborhood, of Lundy and Bynum without a pass, and states that the pass system was not adopted until af-terwards.

The proof further shows that the attorney of the holder of the note handed the original note to the witness, J. P. Young, to make a demand of the maker for payment, and a notice of demand and refusal of payment to be served on or delivered to defendant as in-dorser of the note; which notice is dated the 26th of May, 1865, and the certificate or statement of the delivery thereof is in the words following:

“May 29th, 1865.
“On this day, I, at the request of E. M. Apperson, surviving partner of E. M. Apperson & Co., presented the note for $15,221.09, (of which the subjoined is a true copy,) to Wm. L. Lundy in person, and demanded payment of said note from him, which was refused; whereupon, on same day I proceeded to the house of B. C. D. Bynum, and delivered to him a written notice of said demand and refusal of payment in the usual form.
“J. P. Young.”

The notice, (Exhibit B,) to Young’s deposition dated as above, stated on the 26th May, 1865, was delivered to Bynum on the 29th May, 1865, which occurred as stated by the witness, Young, by the counsel of plaintiff having made out the notice three days before Young served it on defendant.

The questions raised by counsel have been very elaborately argued, and with earnestness and ability have been pressed upon our consideration; and the authorities cited upon these questions are numerous. We will proceed to dispose of such of the questions made, as we consider necessary to notice. The rule is, that, in order to charge the indorser, the demand should have been made on the day of the maturity of the note. But, although this is the general rule, it is not an universal one, and prevails only under the qualification, which is a part of the rule itself, that there is no negligence or want of diligence in not making such presentment. To excuse the demand and notice as required, the rule, we think, is, as we have laid it down at this term, in the ease of Polk vs. Spinks. If the demand is made after the day of the maturity of the note, it is insufficient for the purpose of charging the indorser, except when it is made under circumstances which the law recognizes as a valid excuse for a delay in making the demand. As to the place where demand of payment of a note should be made, there is a difference in the principles of law applicable to the question, in case of a note payable generally, and one in which a place of payment is specified. In the former case, where the maker has a place of residence, but none for the transaction of business, the demand can be, and should be, made at his place of residence; and where the note is payable generally, the parties may agree upon the place where it shall be presented, and a presentment at the place appointed is sufficient to charge the indorser. But, in the latter case, that is, where the place of payment is specified in the note, it seems to be settled, that, in order to charge the indorser of the note, a demand at the place designated, is necessary: 1 Parsons on N. & B., 431; and 11 Wheaton, 177, case of Bank of U. S. vs. Smith; and is a condition precedent to an indorser’s liability: 1 Ala., 375; 3 Camp, 247; 9 Wheaton, 558; 11 Wheaton, 171; 1 Stewart, 234. If, however, the holder, on the day of payment, finds the place of payment closed, we think it would excuse him from making any further demand, to charge the indorser; and if the office at which the payment was to have been made, has ceased to exist previous to, or at, the maturity of the note, it has been held that no demand at all was necessary: See Ala. Rep., 1 vol., new series, 376; and this seems to be the doctrine laid down in 3 Kent, citing 3 Johns. Cases, 71; 3 Johns. R., 202-8.

Whether this ruling, that in the case mentioned, no demand at all is necessary, is correct, we need not en-quire, so far as a demand of the maker is concerned; for in the case we are considering, a demand was made of the maker, but not at the place where the note was payable. Was the plaintiff in error excused from making a demand at the place where the note was payable? We are aware . that it is clearly settled, that, as against the indorser, where the note is payable at a certain place, it must be there presented; but where, as in the case of Roberts vs. Mason, 1 Ala., the Bank where the note was payable had ceased to exist previous to the maturity of the note, a demand at such place would have availed nothing. The contract in such a case did not impose on the holder such a duty, nor would there be any just ground on the part of the holder to expect that the payment of the note would there be met. The note made by Lundy, indorsed by Bynum, did not impose upon the indorsee, or holder, the necessity of making a personal demand of the maker, but only a presentment on maturity at the place on its face. This being impracticable, no such demand was necessary. This condition, on which the liability of the indorser depended, became impossible, if the place at which the note became payable had ceased to exist, and this occurrence was not produced by the instrumentality of the holder; and it cannot be held to interpolate the contract of indorsement, so as to make the indorser’s liability depend upon the performance of the condition by the indorsee, which did not constitute a part of the original contract: 1 Ala. 378. The Branch of the Union Bank, at Memphis, had ceased to do any general business. Its assets had been carried South before the day on which the note matured. The proof informs us, that the Cashier remained at the banking house for certain specific purposes, but certainly, not for the purpose of keeping the institution, as such, in operation. There were none of the officers there, save the Cashier. The very fact of removing its assets, shows a suspension of its business. In fact, we are left fairly to infer, that, as a branch of the Union Bank, it had ceased to exist; and the removal of the assets, coupled with the fact that „ it did no general business, and that a state of war existed, was certainly sufficient to take away all expectation on the part of the holder that the note would be met at that place, and to make the presentation at the banking house a useless formulary.

The proof in the cause, the events of which this Court will take judicial cognizance, and the adjudication of the questions raised in “The Venice,” in the Supreme Court, reported in 2 Wallace, 277, and the prize cases in '2 Black.; in the former of which cases, the Act of Congress, of 13th July, 1861, and the proclamation of the President, of August 16, 1861, passed under the examination of that Court, leave us very little difficulty in deciding the question which has been so ably discussed in this cause, as to tbe relation which the holder, maker, and indorser of the note sued on, sustained to each other after the permanent occupation of the City of Memphis by the national troops, and before the maturity of the note. The decisions of the Supreme Court of the United States, are entitled to the weightiest consideration, as authority, at all times and upon all questions, but more especially, upon the class of questions adjudicated in the cases referred to.

After the City of Memphis was captured by the national forces, the holder, Apperson, remaining in Memphis, a place which, from the time of its capture, was occupied and controlled by the forces of the United States, engaged in the dispersion of the insurgents, that is to say, occupation and control that was actual, substantial, complete and permanent, sustained towards Lundy, and Bynum, the relation of an enemy. As was held in the Venice, “the Legislative and Executive action, (viz: the Act of July, and the proclamation of August, 1861,) related mainly to trade and intercourse between the inhabitants of loyal and ' insurgent parts of the countryand hy excepting districts occupied and controlled by national troops from the general prohibitions of trade, it indicated the policy of the government not to regard such districts as in actual insurrection, or their .inhabitants as subject, in most respects, to treatment as enemies.” Such substantial actual occupation drew after it the full measure of protection to persons and property consistent with a necessary subjection to military government, and replaced rebel by national authority, and re-organized, to some extent, the conditions and responsibilities of national citizenship.

But Lundy and Bynum, and persons not within the City of Memphis, and the district of country around Memphis, so occupied and held by the national troops, were in relation of enemies to Apperson; and if even the public or general laws of war did not have the effect, the Act of Congress, of July 13, 1861, made all commercial intercourse and transactions between them unlawful, until at least the section in which the former resided should also be so actually and permanently held and controlled by the National Government. Apperson could not present the note to Lundy for payment at his residence, ten or twelve miles South of Memphis; for Lundy was beyond the line of pickets, indicating the extent of the occupation' of the place or section around Memphis, held by the' national troops; and if he could reach him at his residence, on the day the pote matured, it would, owing to the relation between them, the existence of war, and the Act of Congress, be unlawful. He could not be required to present the note for payment at the Branch of the Union Bank, at Memphis, at maturity, for the reasons stated.

It is insisted, however, that, admitting that this condition of things, and the relation between the parties existed, yet, that it continued until after the demand was made on the 29th May, 1865, to-wit: until the President declared, by proclamation, that the States and sections or districts mentioned in his former proclamation, as being in insurrection, were no longer in that condition; and that if it was unlawful for the plaintiff in error to make the demand in 1862, it was equally so to make it on the 29th May, 1865; because the President’s “ peace proclamation” had not then been issued. We cannot assent to the corre ct ness of this reasoning.

The Act of Congress, of July 13, 1861, made it lawful for the President, by proclamation, to declare the whereabouts of any State, or section of it, where insurrection existed, in a State of insurrection against the United States, “and thereupon,” (the statute proceeds,) “all commercial intercourse, by and between the same and the citizens thereof and the citizens of the United States, shall cease and be unlawful, so long as such condition of hostility shall continue,” etc. This is the express provision of the Act of Congress from which the President derived his power to make the proclamation therein provided for. The proclamation of 16th August, 1865, was promulgated in pursuance of the Act of Congress, and excepted from the interdiction of commerce, the inhabitants of such States “p,s may maintain a loyal adhesion tq the Union and Constitution, or may be, from time to time, occupied and controlled by forces of the United States, engaged in the dispersion of the said insurgents.” It is true, that, in a subsequent proclamation, reciting that experience had shown that the exceptions made as above, embarrassed the execution of the Act of July 13, 1861, they were revoked; and the inhabitants of the several States mentioned in this proclamation, except, etc., were declared in a state of insurrection; and all commercial intercourse not licensed, etc., declared unlawful, “until sucb insurrection shall cease, or be suppressed, and notice thereof has been duly given by proclamation.”

But it is sufficient, we think, to say that the holder of the note in this cause, was bound to make demand of the maker for its payment, and give notice to the in-dorser, within a reasonable time after the impediments, the existence of which excused him from so doing, were removed; and that we must look to the question of when, in point of fact, those impediments were removed, and not alone to the time when the President thereafter declared that rebellion, insurrection, and war, no longer existed; especially as by the Act of Congress authorizing the proclamation of the 13th July, 1861, it was contemplated and declared that commercial intercourse therein authorized to be interdicted, was, after the proclamation therein provided for, to cease and be unlawful, so long as a condition of hostility existed.

Another question made by the defendant in error, is, whether Apperson used due deligence in giving notice to Bynum, after the demand of payment. The proof shows, that he, in point of fact, gave notice to the indorser, on the day of the demand. Under the peculiar ^circumstances of the case, however, as the cause will be remanded for a new trial, we have deemed it best to express no opinion as to whether the notice given on the 29th August, 1865, being dated the 26th, was sufficient. It is probable the jury was misled by the charge of the Court. We do not attach much weight to the affidavits of the jurors, used on a motion for a new trial; but it is most likely they were misled, as the charge, particularly on the subject of giving notice through the post-office at Memphis, was calculated to mislead. See pages 41 and 42 of transcript. The charge is erroneous, because the Judge in the Court below, left the jury to proceed upon the idea that if the defendant had free access to Memphis, and the Memphis post-office, after the maturity of the note, and could go in and out of Memphis at will, and that notice might have been given him through the Memphis post-office, then that it was the duty of plaintiff in error to give defendant in error the notice through the post-office; and this too, as we think, the jury may have inferred, notwithstanding the enemy relation between the holder, and maker, and indorser, and the Act of Congress, and proclamation referred to.

Let the judgment be reversed, and the cause remanded for a new trial.

OPINION UPON A PETITION FOR A RE-HEARING.

Our ruling in Apperson vs. Bynum, was to this effect ; that, although it was clearly settled that, as against the indorser, when a note is payable at a certain place, it must be there presented for payment, yet, that, where this had become impracticable, demand at such place is excused.

It is true, the Court, in Roberts vs. Mason, 1 Ala., go on to hold, that where it is impracticable to make presentment at the place named in the face of the note, the holder is not bound to call on the maker for payment, and the reason given is as follows: One of the conditions on which the liability of the maker depended, it became impossible to perform by reason of the place where the note was payable ceasing to exist, previous to the maturity of the note. This was without the instrumentality of the holder; and it could not be held to inturpolate the contract of indorsement, so as to make the indorser’s liability depend upon the performance of a condition by the indorsee, which did not constitute a part of the original contract.

To apply the rule laid down as above, to this case, Apperson was not bound under the contract, to present the note to Lundy for payment,. because the contract was, that, on maturity, it was to be duly presented for payment, i. e., at the Branch of the Union Bank. But the Bank as an institution, i. e., as the Branch of the Union Bank at Memphis, ceased to exist before the note matured. It became impracticable to comply with this condition of the contract. It was not the fault of Apperson, or by his instrumentality; and this being so, he was not bound to make demand of Lundy, the maker, because that was to make Bynum’s liability depend an a' condition which was not in the contract. It is very clear, upon a close examination of Roberts vs. Mason, that it is a strong authority in favor at least, of the position that Apperson, while he may not have been bound to present the note to Lundy, was not bound to have presented the note for payment at the place where it was payable, because the Bank had ceased its operations in this respect, viz: The office of discount and deposit of the Bank of the United States, where the note, in Roberts vs. Mason, was payable after its sale to the Bank of Mobile, was subject to the Bank of the United States, and the Bank of Mobile was the agent of the Bank of the United States, and was at the time of the maturity of the note, in Roberts vs. Mason, engaged in settling the affairs of the office of discount and deposit of the Bank of the United States. Under these circumstances, the Supreme Court of Alabama hold this language:

“The proof shows that the place of payment ceased to exist previous to the maturity of the note; the office of discount and deposit, being sold to the Bank of Mobile, and this latter institution, the agent of the Bank of the United States. This being the case, it was impossible for the holder to have presented the note for payment on the day it became due; and there was no necessity, as we. have seen, to have deposited with the Cashier at an earlier period.”

Certainly, if the holder was excused from making a demand of the note, in that case, at the' place where, by the contract, it was to be presented, Apperson was excused from making any demand at the Branch Bank at Memphis.

But, it is now insisted, on the application for a rehearing, that Apperson should have given notice to Bynum of the circumstances, or the fact that made it impracticable for him to present the note at the Bank, and that this would have been sufficient, and was the only and correct mode of proceeding, to hold him bound on his contract as indorser; We have been shown no authority for this course as being the only one necessary or proper in such a case. The argument comes to this: Apperson was excused from presenting the note for payment at the Bank in Memphis, because the Bank had ceased to exist. No presentment at any place was necessary. He was not bound to present the note to Lundy; and, therefore, his demand of Lundy, and giving Bynum notice of that demand discharged Bynum, because no demand at all was necessary, but simply, a notice should have been given Bynum that he, Apperson, could make no demand at the place of payment; in the absence of which notice, Bynum was discharged.

We cannot assent to the position or the force of the reasoning.

When we consider the object of making the demand, it seems to us that, if the demand cannot be made at the place where the note is payable, if any demand at all were necessary, where it became impracticable to make the demand at the place where the note was payable, that, although the holder may not he hound to make demand of the maker, in person, it is the next best thing that can be done; and that, whether the holder is bound to make such presentation to the maker or not, yet, that if he does it, and immediately notifies the indorser of the fact, it will be sufficient; certainly, we think as sufficient as if he notified the in-dorser that he had not made any presentment or demand; even though he embodied' in the notice to the endorser, the reasons for his failure and inability to present the note at the. place where it was payable.

If no place of payment was specified in the note, presentment might be made to the acceptor or maker himself; and it is difficult to see why, if this is sufficient in the case of a note payable, generally, a demand of the maker, (if a demand at all were necessary,) where a note payable at a particular place cannot be presented at that place, would not be .good if presented to the maker and notice duly given to the indorser. By the contract, the indorser undertakes, if the note is not paid upon presentment at maturity, and notice is duly given, he, the indorser, will pay the note. Now, in this case, the note was not paid at maturity, and could not be presented at the place where payable, and as a matter of course, no notice could be given of a presentment being made, that could not he made. Is the indorser discharged ? Certainly not. In a case where there is no person on whom demand can be made, the indorser is liable without presentment; and for a reason equally as strong, he would be held liable, where the place at which the note is payable had ceased to exist, and the holder presented the note to the maker, and gave due notice, of the presentment, and of the failure of the maker to pay.

In giving the notice to the maker, the holder may be doing what he is not hound to do, but he is certainly ascertaining the fact that the note will not be paid, from the only one who can be expected to pay the note, where the payment at the place mentioned in the note cannot be obtained; and this course and notice to the ' indorser thereof best subserves the objects of presentment and notice, under the circumstances. The holder thus. acting, has done even more, perhaps, than he was bound to do, in endeavoring to have the note paid, by giving the maker an opportunity to pay it before looking to the indorser; and the indor-ser, getting timely notice of the presentment to the maker and • refusal of payment, can set about to secure himself in regard to his liability on the note.

But it is urged that the endorser, seeing from the notice that demand was not made at the place of payment mentioned in the note, sees that he is discharged because there has been a failure on the part of the indorsee or holder to comply with his part of the contract, i. e., of performing a condition precedent to the indorser’s liability, which we have seen was ’ impos. sible. I think that the question whether he is discharged is not for the indorser to determine; though he may come to a conclusion in relation thereto, that does not determine his liability. If the holder was not bound to make the presentment at the place of payment, under the circumstances, he is excused in the law, from making such presentment; and bringing notice home to him of the' circumstances operating to excuse such presentment, does not, and cannot alter the fact that the holder is excused from making such presentment.

On the other point raised in argument, on the application for a re-hearing, we think there is not much difficulty. -We are satisfied with our ruling, that Ap-' person on the one hand, and Lundy and Bynum on the other, sustained the relation of enemy, so long as the condition of hostility mentioned in the Act of Congress, of 13th July, 1861, continued, and no longer; and, if this condition of hostility had ceased on the 25th May, 1865, then they no longer sustained that relation.

Can the courts determine when this condition of hostility ended ? To say that they cannot, is to say that they cannot take that cognizance of events in the current history of the times, which has never been seriously questioned. The President’s proclamation declaring that certain States and sections, and the inhabitants of certain States and sections, were no longer in rebellion, was but a declaration or proclamation of a fact which already existed. There is a marked distinction between the right to carry on trade, which had been expressly interdicted by the Act of Congress, until the President should issue his Peace Proclamation, and the fact of a change in the enemy-relation which the war itself brought about. Even in the case of particular sections, occupied and controlled by the national authority, as we have seen, the former relation or condition of the inhabitants of such section was changed by that occupation, even before the Peace Proclamation, and before the war had ended; and as this occupation extended, the same result, as affecting the citizens of such occupied sections, followed; and the enemy relation, under the policy of the Legislative and Executive Departments, as expounded by the Supreme Court of the United States, ceased. When the occupation became universal, so far as the whole country was concerned, and the organized armies of the entire section lately in rebellion surrendered, it was a fact the Courts must know without the aid of a public proclamation declaring the fact.

We may admit the force of the adjudications referred to, and the general principles laid down in the case of the United States vs. 129 Packages, 2 Amer. Law Register, 419, decided in September, 1862, concerning the power of the political departments of the government to decide when war has commenced and ended, and the force of the general doctrine that the courts must follow the decision of the political power. These are earnestly relied on in argument by the counsel for defendant in error; but we think it a sufficient answer to all this, to refer again to the doctrine of the enemy relation, as expounded by the Supreme Court of the United States in 1864, in. the Venice, which is found on page 277 of 2 Wallace, and which has not been overturned in any subsequent adjudications of that high tribunal.  