This suit was instituted by plaintiff to recover ten bales of cotton from Sylvester Murray. After the suit was brought, Murray died, and it was revived against the administratrix of his succession.

The administratrix, in her answer, denied all the allegations of plaintiff, and averred that the cotton sued for was destroyed by an overflow, without the fault of Murray.

Judgment was rendered in the District Court against the succession of *573Sylvester Murray, and the administratrix thereof has appealed,

L. M. Durr bought the cotton sued for from Sylvester Murray, and transferred it to the plaintiff.

The cotton was not’ delivered, but remained in Murray’s possession.

Only one witness was introduced to prove its destruction, and he testified that he did not know, of his own knowledge, that the cotton in controversy was destroyed.

This witness swore that he did not know where he lived in the year 1862; and it seems that the District Judge had little confidence in his evidence. Other witnesses, in some respects, contradicted this witness’ evidence; and we cannot conclude that the Judge erred in his estimate of the evidence of the witness.

There being no proof that the cotton was destroyed, the seller is bound to deliver it.

The defendant contends that the judgment should be reversed because, the contract of sale was received in evidence without having a stamp, as required by the revenue laws of the United States Government,

The defendant did not object to the admission of the contract of sale in evidence, and there is nothing in the'record to show or indicate that it was admitted without a stamp; and this Court cannot presume that the District Court authorized a wrong to be perpetrated on the Government, - by permitting an unstamped-obligation to be used as evidence.

It is decreed that the judgment of the District' Court be affirmed, with costs.