Montgomery v. United States

delivered the opinion of the court:

Leo L. Johnson, in 'the year 1862, was a cotton planter, residing in the State of Arkansas, within the insurrectionary lines. He owned a sugar plantation in the parish of Lafourche, in the State of Louisiana, called the “Webster place.” J. W. Burbridge & Co., merchants of New Orleans, had been his factors. He was indebted to them for money and supplies to the amount of $130,000. New Orleans was captured by the combined land and naval forces, under General Butler and Admiral Farragut, respectively, in the latter end of April, 1862. That city was thenceforth during the war occupied by the Union forces, as well as portions of the State of Louisiana.

A few days after the occupation of the city, General Butler issued a proclamation dated May 1,1862, from which the following extracts are made, having relation to some of the matters discussed in this case:

“All persons well disposed toward the Goverment of the United States, who shall renew their oath of allegiance, -will receive the safeguard and protection in their persons.and property of the United States, the violation of which by any person is punishable with death.

“All persons still holding allegiance to the Confederate States will be deemed rebels against the government of the United States, and regarded and treated as enemies thereof.

“All foreigners not naturalized, and claiming allegiance to their respective governments,, and not having- made oath of allegiance to the supposed government of the Confederate States, will be protected in their persons and property as heretofore under the laws of the United States.

“All persons who may heretofore have given their adherence to the supposed government of the Confederate States, or have been in their service, who shall lay down and deliver up their arms, and return to peaceful occupations, and preserve quiet and order, holding no further correspondence nor giving aid and comfort to the enemies of the United States, willnotbe disturbed, either in person or property, pxcept so far, under the orders of the commanding general, as the exigencies of the public service may render necessary.

“The keepers of all public property, whether State, national, or confederate, such as collections of art, libraries, museums, as *653well as all public buildings, all munitions of war and armed vessels, will at once make full return thereof to these headquarters; all manufacturers of arms and munitions of war will report to these headquarters their kind and places of business.

“All right of property, of whatever kind, will be held inviolate, subject only to the laws of the United States.

“All inhabitants are enjoined to pursue their usual avocations; all shops and places of business and amusement are to be kept open in the accustomed manner, and services to be had in churches and religious houses, as in times of profound peace.”

' On the 9th November, 1862, General Butler caused a general military order, called “ Order 91,” to be issued. In this order, after reciting among other things that the territory west of the Mississippi Biver, lately taken possession of by the United States troops, was mostly occupied by persons disloyal to the United States, and that sales are being made for the purpose of depriving of their right to the confiscation of certain property, &c., he makes the following among other orders:

“ I. That all the property within the district to be known as the ‘District of Lafourche,’ be and are hereby sequestered, and all sales or transfers thereof are forbidden, and will be held invalid.

“ II. The district of Lafourche will comprise all the territory in the State of Louisiana lying west of the Mississippi Biver, except the parishes of Plaquemines and Jefferson.

“III. That Major Joseph M. Bell, provost judge, president; Lieutenant Colonel J. B. Kinsman, aide-de-camp; Captain Fuller, (Seventy-fifth New York Volunteers,) provost marshal of the district, be appointed a commission to take possession of the property in said district, to make an accurate inventory of the same, and gather up and collect all such personal property, and turn over to the proper officers, upon their receipts, such of said property as may be required for the use of the United States Army; to collect together all the other personal property, and bring the same to New Orleans, and cause it to be sold at public auction, to the highest bidders; and, after deducting the necessary expenses of care, collection, and transportation, to hold the proceeds thereof subject to the just claims of loyal citizens and those neutral foreigners who, in good faith, shall appear to be the owners of the same.

“IV. Every loyal citizen or neutral foreigner who shall be found *654in actual possession and ownership of any property of said district, not having acquired the same by title since the 18th day of September last, may have his property returned or delivered to him without sale, upon establishing his condition to the judgment of the commission.

“ V. All sales made by any person not a loyal citizen or foreign neutral, since the 18th day of September, shall be. held void; and all sales whatever, made with the" intent to deprive the government of its rights of confiscation, will be held void at what time soever made.

“ VI. The commission is authorized to employ, in working the plantation of any person who has remained quietly at his home, ■whether he be loyal or disloyal, the negroes who may be found in said district, or who have, or may hereafter claim, the protection of the United States, upon the terms set forth in the memoranda of a contract heretofore offered to the planters in the parishes of Plaquemines ‘ and St. Bernard, or white labor may be employed, at the election of the commission.

“ VII. The commissioners will cause to be purchased such supplies as may be necessary, and convey them to such convenient depots, as to supply the planters in the making of the crop; which supplies will be charged against the croi> manufactured, and shall constitute a lien thereon.

“VIII. The commissioners are authorized to work, for the account of the United States, such plantations as are deserted by their owners, or are held by disloyal owners, as may seem to them expedient, for the purpose of saving the crops.

“IX. Any persons who have not been actually in arms against the United States since the occupation of New Orleans by its forces, and who shall remain peaceably upon their plantations, affording no aid or comfort to the enemies of the United States, and who shall return to their allegiance, and who shall, by all reasonable methods, aid the United States when called upon, may be empowered by the commission to work their own plantations, to make their own crop, and to retain possession of their own property, except such as is necessary for the military uses of the United States. And to all such persons the commission are authorized to furnish means of transportation for their crops and supplies, at just and equitable prices.

“ X. The commissioners are empowered and authorized to hear, determine, and definitely report upon all questions of the loy*655alty, disloyalty, or neutrality of tlie various claimants of property within said district; and, further, to report such persons as in their judgment ought to bo recommended by the commanding general to the President for amnesty and pardon, so that they may have their property returned; to the end that all persons that are loyal may suffer as little injury as possible, and that all persons who have been heretofore disloyal may have opportunity now to prove their loyalty, and return to their allegiance, and save their property from confiscation, if such shall be the determination of the government of the United States.

“ By command of Major General Butler.”

General Banks succeeded General Butler in command at New Orleans, and issued the following General Order “No. 108 :”

“All military and civil officers of this department who are engaged in the superintendence of public works of any character, or who have assumed to direct and control private or public property, and all- other persons engaged on such works, or charged with the direction of such property, will report to these headquarters forthwith the character of such works, the number of persons employed, a description of the property held, and the authority upon which proceedings have been based. No claim for compensation for such services will be considered from this date, until such reports have been received at these headquarters.

“ By command of Major General Banks.”

On the 9th day of September, A. D. 1862, the claimant Montgomery entered into the following written agreement with J. W. Burbridge & Co., the alleged agents and factors of Leo L. Johnson.

“ Know all men by these presents, that it has been agreed, and it is hereby agreed, between the undersigned, as follows, to wit: Thomas D. Harris, acting as the attorney in fact of J. W. Burbridge & Co., of this city, the agent of Leo L. Johnson, of the parish of Lafourche, in this State, has sold, and hereby does sell unto Robert H. Montgomery, of tbis city, the following crop, belonging to said Leo L. Johnson, contained in his sugar-house and purgery on his plantation in the parish of Lafourche, near the Lafourche crossing, to wit: 605 hogs-*656beads of sugar, 700 barrels molasses, and 300 barrels rum, at the following’ prices, to wit: for the sugar at cents per pound, for the molasses at 20 cents per gallon, and for the rum at 50 cents per gallon, the weight and quantity to he determined at the time and upon the delivery thereof in Weio Orleans.

“ The said Montgomery, in consideration of said sales so to him made, has paid, in ready money, the sum of $5,000 to said Harris, attorney in fact, aforesaid, the receipt whereof is hereby acknowledged and accepted as so much on account of the first sugar, molasses, or rum delivered to him, said Montgomery, as aforestated; the balance to be paid by said Montgomery at each future delivery of said sugar, molasses, and rum.

“ Thus agreed, and done in duplicate, at Hew Orleans, this 9th of September, 1862.

“J. W. BURBRIDGE & Co.

“R. H. MONTGOMERY,

“Per THOMAS D. HARRIS,

“ Attorney.

“Witnesses:

“Jon. L. Cavanna.

“J. C. MoAllester.”

At the same time Harris gave to Montgomery the following paper:

“ New Orleans, September 9,1862.

“ The overseer on the plantation of Leo L. Johnson will please ' deliver to the order of Robert H. Montgomery the entire crop of sugar, molasses, and rum contained in the sugar-house and purgeries, &c., on said plantation, the same having been sold to him this day.

“J. W. BURBRIDGE & Co.,

At the date of this contract and order, the plantation of Leo L. Johnson and the articles sold, including the sugars claimed in this suit, were outside the lines of occupation of the Union Army, and were under insurgent control and so continued until some day in the latter end of October, or beginning of November of the same year.

Under orders “No. 91” this property was seized by the military under General Butler, and shipped to New Orleans. It was delivered over to the quartermaster, and by him was sold. *657In tbe first lot shipped, there were something over four hundred hogsheads of sugar 5 in the last lot two hundred and seventy-eight. After the sale of this latter lot Montgomery, the claimant, and J. W. Burbridge & Co., applied to this commission for a return of the proceeds of this sugar. The first lot of four hundred and twenty-six hogsheads of sugar not proved and identified, as is alleged, before'this commission, but the commission awarded to Montgomery the net proceeds of the two hundred and seventy-eight hogsheads, amounting to the sum of $22,018 97. This claim is prosecuted for the net proceeds of the balance of the sugar, amounting to over thirty-seven thousand dollars, which it is alleged has been paid into the Treasury of the United States, and this claim is preferred under the act of March 12,1863, for the net proceeds.

Bobert H. Montgomery is a British subject, but has resided at New Orleans, and has been engaged in business there since 1845. He proved that he never gave any aid or comfort to the rebellion or to the persons engaged in it, and that he did nothing inconsistent with his character of a resident neutral.

Upon this state of facts, the special counsel for the United States has interposed the following matters of defence:

1. That the claimant has not shown such a perfected sale of the property to him as gives him the right as an owner to sue for the net proceeds of it, under the act of March 12, 1863.

2. That Leo Johnson, the owner, resided outside the lines of occupation of the United States forces, and that the property bought by the claimant was also so situated at the date of his purchase, and that such purchase and sale was in violation of the non-intercourse laws, and all acts connected therewith were null and void.

3. That the alleged sale to the claimant was null and void, under the act of July 17,1862, because it belonged to a person engaged in the rebellion, or giving aid, countenance, and encouragement to the same. ,

4. That the claim was not preferred to this court within two years after the suppression of the rebellion, and it is therefore barred by the limitation contained in the act of March 12, 1863.

’5. That the claimant is an alien, a British subject, and has not proved that American citizens have the right to sue that government in its own courts, in respect of any claims they may have against the same.

*658I. A careful examination of tbe agreement between Burbridge & Co. and tbe claimant, admitting tbe riglit and authority of the power to make the sale, satisfies us that no ownership of the property ever vested in Montgomery. The transaction did not constitute a sale, but only an executory contract for a future sale and delivery. If the property in the mean time had perished by fire or flood, it would have been the loss of the vendors and not of the vendee. For, says the express provision of the written agreement, “ the weight and quantity to he determined, at the time and upon the delivery thereof in New Orleans.¶

The rule established by all the leading authorities both in this country and in England is, that where a sale is agreed upon of goods, and anything remains to be done to ascertain the quantity or price, the property in such case does not vest in the buyer until this is done. (Wallace v. Meyer, 6 East. Rep., 614; Rug v. Minet, 11 East. Rep., 210; Withers v. Lyss, 4 Campb., 237; Wallace v. Breeds, 13 East. Rep., 522; Austin v. Craven, 4 Taunt., 644; White v. Wilks, 5 Taunt., 176; Comyn on Cont., 144, 145, and 146; Chitty on Cont., *338; Acraman v. Morrice, 8 C. B., 449; McDonald v. Hewett, 15 Johns., 349; Outwater v. Dodge, 7 Cow., 85; Ward v. Shaw, 7 Mend., 406; Bailey v. Smith, 43 N. H., 141; Henning v. Powell, 33 Miss., 468; Mitchell v. The Commonwealth, 37 Penna. Rep., 187.) There never was any transmutation of the possession, nor was there a time when the vendors could have called upon the claimant to pay any part of the price. Ho advanced five thousand dollars upon the bargain, but we do not think this changes the aspect of the case at all. It was the ordinary case of an advancement to be credited upon the price of the goods, when ascertained by separation, weighing, &c. And until this was done he only had an executory contract for the purchase of the sugars, and not a finished or completed sale. The property remained in Leo Johnson when it was captured. He has made no claim to it; and if he had, he is probably not in a condition to have maintained it. It is satisfactory to know that the claimant has been reimbursed for his advances and expenses, in the sum given him by the military commission, and that he has never paid anything upon the property now claimed. '

It is insisted, however, that a different rule prevails in Louisiana, and that the sale itself, without delivery, changes the property and vests it in the buyer. But this is a misapprehen*659sion; for tlie civil code of that State, article 2433, provides, “When, goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller until they be weighed, counted, or measured; but the buyer may require either the delivery of them or damages, if any be for the same, in case of non-execution of the contract.” Nothing could be more simple, direct, and explicit than this provision. ' Nor could anything be more opposite to the present discussion, or fit more exactly to the fact of this case. Here was a sale by the pound of these sugars. The weight had not been ascertained, nor had they been delivered. And it is perfectly apparent that the weighing and delivery were essential to a change of the property. It is supposed that the order given by Harris to the overseer on the plantation, to deliver to Montgomery all the sugar, &c., was equivalent to delivery itself. But giving the utmost effect to the order from Harris to the overseer, it was merely substituting the plantation for New Orleans. And it is very clear that no transfer or delivery there of the keys, or possession of the storehouses and purgeries, ever were made to Montgomery, or that he or any agent of his ever saw the sugars there, much less had them weighed or delivered over to them.

The decision in Campbell v. Penn (7 La. An. Rep., 371) is made upon this article Of the code, and shows that the rule of the common law in all its length and breadth prevails in that State. That was a sale of cotton. A part of it had been weighed and .delivered by the broker to the vendee, but the rest had not passed the scales when the vendee absconded. It was held-there was no delivery of the part not weighed. And it was held that the delivery of part of a divisible thing is a delivery of that part alone, not of the whole. And also that actual delivery of the whole in bloelc completes the sale, though the article be not counted, weighed, nor measured. But it will be seen that it must not be a constructive or symbolical delivery, such as is set up here, but an actual change of possession, (Parmele v. McLaughlin, 9 La. Rep., 439.) So, again, “ In a sale by tale, the things when delivered to the vendee are his property, though at the vendor’s risk till counted.” (Shuff v. Morgan, 9 M., 592.) “ The price payable only after possession, which is alleged but not proved, cannot be recovered.” (Wilson v. Phillips, 4 An. La. *660Rep., 158.”) Liketbe common law, tbe civil code of Louisiana, and the decisions of her highest courts, regard with suspicion and hold fraudulent, or, as they express it, simulated, as to third persons, all sales of movables, when the seller remains in possession of them after the alleged sale. (La. Code, arts. 1915 and 2456; 6 La. Rep., 538; 4 Ibid., 340; 7 An. Rep., 614; 6 An., 250, 438, 710, and 745; 9 An., 278; 17 La., 353; 12 Martin, 254.) But it is unnecessary to multiply authorities upon this point. The same doctrine prevails in Louisiana on this subject that obtains in almost every other civilized community; that in a sale of personal property, or, as they call it, of movables, and anything remains to be done by the parties to ascertain the quantity or price, and where there has been no actual delivery of the property or change of possession, the title and property in the thing do not pass under the agreement of sale. If we are right in this view of the law, there must necessarily be an end of this case, for there was no such delivery or anything in lieu of it, as was required to vest the right to and property in the thing sold in Montgomery, the claimant.

II. Another objection to the claimant’s recovery is interposed by the special counsel, on the ground that the alleged sale of the property in question was a violation of the non-intercourse laws, and therefore illegal and void. At the time of this alleged sale in September, 1862, New Orleans, where Burbridge & Go. and the claimant lived, were within the lines of Union occupation. Lafourche Crossing, where the property was, and that part of Arkansas where Leo L. Johnson, the owner, then lived, were in the territory held and occupied by the insurgent forces. In the absence of all proof to the contrary, the law presumes Leo L. Johnson, the owner, to be disloyal. And being so, all his estate and property was liable to seizure and confiscation under the act of 17th July, 1862. And it Avas not possible for his agent at New Orleans to sell this property to a person within the Union lines, so as to defeat the right of the United States bj»- capture and confiscation, the oAvner and the property both at the time being within the insurgent lines. If this could be done at all, it must be by a mere agreement, and which was incapable of being executed by an actual delivery of the property. To find that there was a transfer or transmutation of the right and title in this property to Montgomery, we are compelled to hold that this mere agreement' *661effected wbat it was impossible for the parties actually to accomplish; that there was a constructive and potential delivery, when the circumstances and situation of the parties precluded both the possibility and legality of an actual one. The non-intercourse acts declared all trading’, trafficking, and intercourse with the insurgents illegal, -and rendered all property passing to or from the rebel territory liable to capture and condemnation. To hold valid such a transfer as the one set up here, would render all non-intercourse laws nugatory, and make them the sport, or scorn of all who wished to violate or evade their provisions. We cannot doubt that if the parties had agreed in the most direct and explicit terms that the agreement should operate an immediate change of possession and title, that it would have been unavailing for that purpose. We are of opinion that the agreement was inoperative on this ground. (See United States v. Lane, United States v. Filor, and United States v. Anderson et al., Supreme Court.)

III. The third ground of defence is that the alleged sale was void under the act of July 17,1862, as belonging to a person engaged in rebellion. W e do not sustain this point in the broad and general manner in which it is stated; we think the sale, under the circumstances, ivas void by reason of the non-intercourse laws, rather than under the confiscation act of July 17, 1862.

IY. The fourth ground of defence is, that the claim was not preferred to this court within two years after the suppression of the rebellion, and therefore barred by the limitation of two years in the act of March 12,1863.

The suit was brought before the 20th August, 1868, and was therefore not barred by the limitation. This ruling in the case of Anderson v. United States, Grossmayer v. same, and other cases, has recently been affirmed by the Supreme Court of the United States. And this defence is therefore unavailing.

The right of J. W. Burbridge & Co. to.mate this sale to Montgomery rests alone upon the testimony of Thos. D. Harris and J. W. Burbridge. The latter being clearly interested in the event of the suit, his testimony must be excluded. It leaves Harris the only witness to support this authority. He says, “ J. W. Burbridge & Co. were the factors of Leo L. Johnson, and had authority to sell his crops, and apply the proceeds to liquidate his indebtedness to them.” He does not say how he learned this fact, whether from *662Johnson or Bnrbridge. He does not pretend that he was present and heard Johnson give such instructions to Burbridge & Co., or whether he learned it from their books or from letters of Leo L. Johnson, or simply from the declaration of his employers, J. W. Burbridge & Co. As this is the foundation of the whole case, and was a matter of concern to Burbridge & Co. of one hundred and thirty thousand dollars, it appears strange, if .not incredible, that it should be incapable of more complete, definite, and satisfactory proof. Judging by the usual course of business, it appears impossible that transactions to such an amount, and of the alleged magnitude, covering probably some years of time, should not be capable of more full and clear development. It is strange that there should be no letters, no interviews, no declarations by Leo L. Johnson referring to the subject and recognizing the right of these alleged factors to act in this capacity, and to sell this large amount of property. Another circumstance casts suspicion upon this transaction in my judgment, and that is, that neither of the. subscribing witnesses to this alleged agreement of sale by the agent of an agent to Montgomery, is called, nof is it shown that they are dead or could not be found after proper inquiry. All these circumstances and omissions cast suspicion over this case. As presented before us, it is without any legal or equitable claim to the favorable consideration of a court. But whatever authority was conferred by Leo L. Johnson on Burbridge & Go., even if there were full and adequate proof of it as claimed, was given while New Orleans and La Fourche were both within the rebel lines, and the factor and principal both resided under insurgent sway. When New Orleans was captured by the Union forces, and became part of the Union territory, and the owner and property were within the unreclaimed rebel territory, the power and agency conferred were abrogated, or at least suspended; and while that condition of things continued it was incompetent and wholly illegal for Burbridge & Co. to exercise by virtue of it any power, authority, or control over property within the liues guarded by insurgent bayonets. And therefore, if even there were'full proof of the agency and of the attempted sale, it would, in our opinion, still be unavailing to transfer this property so as to defeat the United States’ right of capture and condemnation. It has been pressed upon our consideration with great earnestness and ability by the learned *663counsel of the claimant, that as agents and factors who had advanced money to make this crop, Burbridge & Co., in addition to being factors and agents, had a lien or privilege on this property by the law of Louisiana, to be paid their advancements, and that, iu consequence, they had such special property in these sugars as authorized them to sell. But this is a total misapprehension of the law of lien or privilege, as it is there called, and as it exists in that State. In the first place, it does not affect the right or title of the owner in, or his power over, the property; it does not give the holder of the privilege any right or title in or to the property. But it is a- mere preference of payment in case of the death or insolvency of the debtor— out of the property. And even that preference or privilege is held subject to those which the Code gives a prior privilege. Thus the Code, art. 3168, gives the following debts a privilege in their order, upon all the movables of a debt or or decedent, as follows: i, funeral charges; 2, law charges; 3, charges incurred in last sickness of a decedent; 4, wages of servants for past year; 5, supplies to the debtor or his family incurred to retail dealers for the last six months; 6, the salaries; 7, dotal rights due to wives, &c.

By art. 3184, certain debts are privileged on certain movables, among which are—

1. “The appointments of salaries of the overseer for the year last i->ast, and so much as is due of the current year on the product of the last crop, and the crop at present in the ground.”

Then it was enacted—

“ Stat. 23 March, 1843, p. 44, § 1 — Article three thousand one hundred and eighty-four of the civil code be so amended as to insert in the first paragraph after the word ‘overseer’ the following words: ‘and debts due for necessary supplies furnished to any farm or plantation.’ ”

This privilege attaches to the crop of the current year for supplies furnished during that and the preceding year, (Barrett v. Chaler, 2 A., 874.) To make the privilege available, a separate account must be kept with the plantation, and the supplies must be furnished upon the faith of the crop, and with a view to the privilege. Farrar v. Rawley, 3 A. 276. It only includes those supplies essential to the subsistence and management of the jfiantation. Shaw v. Knox, 12 A., 41; Shaw v. Grant, 13 A., 52. Money is not a necessary supply under the code, and does *664not give a privilege to tbe person advancing it. Shaw v. Grant, 13 A., 52; Hollander v. Creditors, 6 A., 668.

Tims it will we seen that there is not the slightest foundation, in the proofs in this case, upon which to build a lien or privilege upon these crops; for, giving the evidence the widest scope that could possibly be claimed for it in any aspect, and it only shows a general indebtedness of the owner, on a general account. What this balance was for, whether for goods, for money, for supplies, for this or some other plantation, whether for this or some other crop, does not appear in any way by the proofs. And this part of the case has not the least possible basis on which to rest.

The claim as a factor is not any better founded, for by the code, art. 3214, “ every consignee or commission agent, who has made advances on goods consigned to him, or placed in his hands to be sold for account of the consignor, has a privilege for the amount of these advances, with interest and charges, on the value of the goods, if they are at Ms disposal, in Ms stores, or in a public toarehouse, or if, before their arrival, he can show a bill of lading or letter of advice that they have been dispatched to Mm.'”

By a statute in 1841, the factor has a privilege for a general balance against an intervening attaching creditor, provided the goods have been received by him previous to the attachment.

The privilege does not attach until the property on which they are based come into the possession, actual or constructive, of the party claiming the privilege. Hamilton v. Campbell, 9 Ann., 531; Campbell v. Penn, 7 Ann., 371. These citations from the code, and the decisions of the Supreme Court of Louisiana, show that there is as little ground for a factor’s privilege as there is tor that of a creditor who furnished plantation supplies.

But if Burbridge’s testimony be admitted, it will conclusively show that the transaction was understood and acted on, between him and Montgomery, exactly as we say the law holds it to be; as the following extract from his cross examination demonstrates:

“ Q. How much money have you received from B. H. Montgomery since the 9th of September, 1862, and on what account?

*665“A. I received'$13,181 76, on account of two hundred and seventy-eight hogsheads of sugar taken from the Webster place.

“ Q. Have you received any other moneys from him on account of sugars taken from that plantation f

“A. No.

“ Q. If said Montgomery recovers any moneys from the United States in this suit, do you expect to receive from him any further sum on account of sugars taken from that plantation *1

“A. Yes, sir, I do.”

If this be true, then it is clear that the claimant has no case; that he bought and was to pay for what was delivered, and when it should be so delivered, and for no more; and that he has never paid or advanced any part of the price on the property he now claims, and is under no obligation to pay anything for it, if he does not recover here.

And having already recovered nearly ten thousand dollars more than he paid, out of the proceeds awarded him by the sequestration committee, we cannot see the propriety of his present claim.

The judgment of the court is that the claimant take nothing by his petition, and that the same be dismissed, and the defendants go thereof without day.

dissenting:

At the time of the sale, September 9,1862, Burbridge & Co. were, and for more than two years had been, the factors of Leo L. Johnson for his Webster plantation, and were in advance $131,366 67, for supplies and money furnished to it.

The property sold was the entire crop of the plantation, and $5,000 of the price was paid at the agreement of sale, by which the property was to be delivered to the buyer on the plantation, to be transported at his risk and cost to New Orleans, where it was to be measured and weighed, and the residue of the price paid according to the quantities so ascertained.

The order for its delivery is in these words:

“ New Orleans, September 9,1862.

“The overseer on the plantation of Leo L. Johnson will please deliver to the order of Robert H. Montgomery the entire crop of sugar, molasses, and rum contained in the sugar-house and purgeries, &c., on said plantation, the'same having been sold to him this day.

“J. W. BURBRIDGE & 00.,

“ Per T. D. HARRIS.”.

And I think that from the date of that order the property in the sugars, &c., was vested in the buyer, because the evidence shows that from its date, the property, by the agreement between the parties, was to be at the risk of the buyer. And that is the badge of ownership.

In the law of sales, at the common law and the civil law, there was this difference: By the common law the property in the thing sold passed from the seller to the buyer, upon the specification or ascertainment of the thing sold; while, at the civil law, iShe property passed from the seller to the buyer upon the ascertainment of the thing sold, and of the price; so that where, as here, the sale was of an entire quantity by weight or measure, the thing sold being specific, and the weighing or measuring being only to ascertain the price; the weighing-or measuring was at the common law immaterial to the change of property; (Crofoot v. Bennett, 2 Comstock, 258; 2 Hurlstone and

*667Coltman, 200, Turley v. Bates;) while at the civil law, it was essential to it". (Pothier on Sales, No. 308.)

The law of Louisiana (C. C., 3433) adopts the rule of the civil law as its general rule. But by that law and its authorities parties may by their agreement make a special rule for themselves, which will govern the transaction between them. They may agree that the property shall vest in the buyer before or without measuring or weighing, and when they make such an agreementand thus waive the weighing and measuring as a condition precedent to the change of property, the agreement itself is tantamount to the weighing and measuring, and of the same legal effect; and the property is changed from the date of the agreement.

And such agreement, that the property shall be-changed before or without measuring or weighing, may be either express or implied from circumstances, and the reports of Louisiana furnish instances -of both. Thus in the case of Clark et al. v. Norwood et al., (19 Lou. An. R., 116, 1867,) the sale was of 100 bales of cotton, of the average weight of 400 pounds, then “being stored and to be stored” on the (seller’s) plantation, and which he was to transport' and deliver at New Orleans; and the parties expressly agreed in writing to waive the weighing and delivery as a condition to complete the sale. The cotton was burned on the plantation before it was weighed or delivered. The court held that the property in the cotton had vested in the buyer, and said, “It is clear from the words of the act, and its general tenor and import, that from and after the signing of the instrument, the sale was complete, the hundred bales of cotton delivered, and at the risk of the purchasers.” And the loss was held to be theirs.

Here the decision was that the property was changed by the agreement, because therefrom it was at the risk of the buyers, and if that is the distinctive consequence of a complete date, it is the conclusive evidence of it.

In the case cited the agreement was express. In the case of Goodwin v. Pritchard, (10 Lou. An. R., 249,) it was claimed tobe inferable from circumstances. The sale was of a crop of molasses “ then in process of- manufacture.” The molasses was burned on the plantation. The defendent relied on the evidence of letters to show that the burden of insurance was to be on the buyer. The court-, after stating that the sale being of the *668entire crop was for a specific thing, and that that did not remove it from the rule as to weighing and measuring, said, “ It remains only to consider the special circumstances upon which the defendant relies as withdrawing the case from the operation of the ordinary rule governing sales by weight. And in the outset of this inquiry it' must be borne in mind that although parties may by their agreement withdraw their contract from the rule of law we have just been considering, such agreement should not be let in unless where there is no doubt of its existence. If the agreement rests on inference, the inference should be clear, cogent, and convincing. And the court then decided the case against the defendant on the single ground that the evidence did not furnish the’inference that the burden of insurance was to be on the buyer.

This case shows that, by the law of Louisiana, parties to a sale may by their agreement change the property and vest it in the buyer before measuring or weighing; that such agreement may be implied from circumstances, and will be implied from the fact that the property was to be insured by the buyer, and was to be at his risk, according to the maxim of the civil law and all other law, “res perit domino.”

Such being the law of Louisiana, I think the question here is whether the evidence shows the intent of the parties that the property was to change from the seller to the buyer before the weighing and measuring; and I think it does, because it shows that the property was to be delivered to the buyer before the weighing and measuring, and to be at his risk, and the burden of insurance and cost of transportation, &c., was to be on him.

T. Harris, who made the sale to the claimant, thus testifies on his cross-examination by the defendants, being asked in reference to this sale;

“ Question. Did the fact that the sugar and molasses, which are the subject of the contract, were outside the then lines of the United States forces have an effect upon the value of the ■ same, or the price at which they were sold

He answered:

“Answer. To a certain extent it'was; for we always sell sugar and molasses on a plantation at a much lower price than we do in the city, owing to the fact that no charges of transportation, insurance, &c., are paid by the seller.”

I think this evidence is direct and positive that in this trans*669action, by and from tbe bargain between the parties, the sugars, &c., were to be at the risk of the buyer, and that the cost of transportation and the burden of insurance, i. e., the risk of loss or injury of the property, were on him and not on the seller, and that this regulated the price between them. And if the buyer had the risks, he had the rights of property, for they must go together. And I think that the intent and understanding of the parties, that the property vested in the buyer by and from the agreement of sale, is shown by their action on it.

The part of the sugars sold at New Orleans by the United States brought a higher prie'e than the contract price; and the whole price obtained at the sale was adjudged by the commission and paid to the claimant. In the settlement of this between the claimant and Burbridge & Co., they took their original contract price, and the advance or profit beyond the contract price was taken by the claimant. And this is stated by Harris, who transacted the business and received the money.

It was urged at the bar that the contract provided as follows: “ The weight and quantity to be determined at the time and upon the delivery thereof at New Orleansand again, “ the balance to be paid by said Montgomery at each future delivery of said sugar,” &c. And it was contended on these provisions that the delivery by the seller to vest the property in the buyer, was to be at New Orleans. But this could not be the intent, for under the contract the seller could not deliver the property at New Orleans, for he would not have it to deliver, as it would be m the possession of the buyer under the delivery at the plantation according to the order given for that, and on its security he would have paid $5,000 and the cost of transportation, and assumed the burden of its insurance and its risk of loss or injury. And I think the delivery referred to in the provisions of the contract cited was the delivery by the buyer at the scales, to ascertain the weight and residue of the price.

On this part of the case, I think, for the reasons stated, that when the property was seized by the United States, it was .at the risk of the claimant, by the agreement between the parties to the sale, and was therefore the claimant’s property, as between him and Leo L. Johnson, and all claiming under or through Leo L. Johnson and the United States have only his title.

It was objected for the defendants, that Burbridge & Go. had *670not a right to sell the property, as factors, because it was not in their possession.

It is true that, at the common law of principal and factor, possession is essential to the factor’s lien; but the right of Buxbridge & Co. to sell does not rest on that law, but on the special contract between them and Leo L. Johnson, by which the crops were to be sold by them, and were appropriated to the advances made on their security. And in equity this contract gave a lien with, the jus disponendi, and hypothecated the crops to Burbridge & Co., according' to the contract, of which their sale was only the execution.

In equity an agreement for a lien makes it as between the parties and all claiming under them; and all that is necessary is that the fund and the debt, and the appropriation of one to the other, should be certain.

Mitchell v. Winslow, (2 Story R., 644,) Justice Story said: a It seems to me the clear result of all the authorities, that whenever the parties by their contract intend to create a positive lien or charge, either on real or personal property, whether then owned by the assignor or not, or if personal property, whether it is then in being or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor acquires a title thereto against him, and all persons asserting a title thereto under Mm, either voluntarily or with notice or in bankruptcy.” And on this ground rests and is administered in equity the relation between planters and those factors who advanced money on the security of crops to be sold by them. And the rules that govern the commercial agency between principals and factors, at the common law, have nothing to do with it.

. In Simonds et al. v. Hibbert, (1 R. & M., 719,) the facts were that the plaintiffs, merchants in New York, agreed verbally with Mr. Tharp, a planter in the English West Indies, that they should send to him supplies for his plantation and receive the crops for sale to reimburse them. This was acted on for some years, till Mr. Tharp went to England, and afterward by his agent on his plantation, till Mr. Tharp’s death, and after that by the trustees under his will, until war broke out between England and the United States, when the crops were sent to England and sold there. After the war, Simonds & Oo. brought their bill in equity in London, to be paid the balance due them *671from tbe proceeds of tbe crops wbicb were paid into court. And it was beld that tbe plaintiffs were entitled to recover, and bad a lien on tbe produce of tbe plantation to wbicb tbe credit was given. And tbe precise point decided is thus stated in tbe marginal note: “ Lien established against tbe produce of West India estates, in respect to supplies furnished to tbe estate from tbe course of dealing, and tbe conduct of tbe parties.”

And a like decision was made in tbe case of Sullivan et al. v. Tuck, executor of Bowie, (1 Maryland Decisions, 59.) Tbe facts were that tbe plaintiffs agreed with Bowie to become tbe agents for tbe sale of bis crops, and to advance him money, for wbicb they were to be indemnified from tbe crops in band and those of 1847.' The evidence of tbe contract consisted principally of letters written by Bowie to tbe plaintiffs, in which be promised to indemnify them for their advances by forwarding tbe crops to them, that their claim might be satisfied from tbe proceeds. At Bowie’s death, a balance was due to tbe plaintiffs, and tbe executor took possession of tbe crops.

Tbe suit was by a bill in equity, and tbe claim was resisted on tbe ground that the plaintiffs bad no better claim to tbe proceeds of tbe crops than any other creditors. Tbe chancellor, after stating that tbe claim could not be supported on tbe common law of principal and factors, as tbe factors bad no possession, said: “It is perfectly manifest that all tlie transactions between them were founded on tbe express promise on tbe part of Mr. Bowie to send them bis produce then in bis bands, or growing, or to become available in 1848 f and tbe decree was for tbe plaintiffs, according to tbe prayer of tbe bill, wbicb ivas for a specific performance of tbe contract.

And I think these cases decide that in contracts like this, growing out of tbe relation of planters and factors, tbe crops or their proceeds in tbe possession of tbe planters, or those claiming under them, are bound in equity for tbe advances made and tbe specific performance of tbe contract.

And I think tbe evidence shows that Leo L. Johnson bad-authorized Messrs. Burbridge & Go. to sell tbe crop. This is testified to by Harris, who was tbe confidential and managing clerk of Burbridge & Co., and managed their business in tbe absence of Mr. Burbridge at tbe North, and was thus in a position to know tbe fact. For the authority given, be referred to letters of Mr. Johnson; and on cross-examination be was asked *672to produce tbe letter, and said be would do so. After an adjournment be testified that be bad searched for tbe letters and could not find them. It was objected for tbe defendants at tbe trial that Harris did not state in bis deposition when and where he looked for tbe letters; but be was not asked that, and if tbe defendants wished to have that, they should have asked it on bis cross-examination.

Then Burbridge & Co. were authorized to make tbe sale by tbe custom of New Orleans, under which it is proved that they acted ; and under which, it would have been presumed, they acted, if it bad not been proved.

Tbe custom proved, as between planters and factors, was, that when tbe factor undertook tbe business of a plantation, tbe amount of money to be advanced by him was fixed; that tbe crops were to be sold by him when and as be saw fit, with or without direction or advice from tbe planter, who bad no remedy if be directed tbe factor not to sell but wait for a rise, and tbe factor sold and afterward arise took place) though tbe planter could, if be was able, pay off bis indebtedness and change bis merchant. And, under tbe custom, tbe crops were as often sold on tbe plantation as after they bad been transported to tbe city.

And it was proved that, at tbe time of tbe sale, Burbridge & Co. were in advance to Leo L. Johnson in tbe sum of $131,366 67, for supplies and money furnished during their factorship.

And I think tbe custom, as proved, covers tbe whole case. It establishes tbe right of Burbridge & Co. to sell tbe crop before its possession by them and while it was on tbe plantation. And it makes such a sale valid against Leo L. -Johnson, with or without bis assent to it; and if it was a valid sale against him, it is a valid sale against tbe United States, who have only bis title.

It was objected on tbe part of tbe defendants that tbe custom was not proved. It rests on tbe evidence of a single witness, Harris, but bis testimony is positive and clear and bis means of knowledge ample; be is not'impugned, and no conflicting testimony is offered. And tbe custom be testifies to is reasonable, and arises naturally out of tbe circumstances of planters and factors; and tbe cases cited show like contracts growing out of like circumstances; besides, tbe existence of such a *673mode of dealing between planters and factors in the southern States is a matter of common knowledge.

It was objected for the defendants that the sale violated the non-intercourse laws; Leo L. Johnson being a rebel and the property being in the rebel territory.

The fact is clear on the evidence, that the sale, and the circumstances on which it is claimed, led to no intercourse with Leo L. Johnson on rebel territory and required none. But the answer is that the sale was made by loyal citizens in loyal territory, for Burbridge & Company were quasi owners, and sold in their own right vested in them by the original contract, which was lawful when made, and hypothecated the crop to them for their advances made and due when the sale was made. They had thus a power coupled with an interest; and they had the same right to sell the crop and reimburse these advances that a mortgagee has to sell the property mortgaged for the mortgage debt. And at the time of the sale the assent of Leo L. Johnson was immaterial to it, and he was not, in fact, a party to the contract of sale, which was valid without, and in despite of, any action of his-.

If the sugar and molasses were in rebel territory, the sale was made in New Orleans months after its capture, and the proclamation of General Butler requiring loyal citizens to follow their usual avocations as a means of preserving order and quiet, and what passed by the sale was the right of property in the sugar, molasses, &c., which between the parties passed without delivery by the laws of Louisiana as well as the common law. And I am not aware that it has been held that the non-intercourse laws, or any other, precluded citizens in the loyal States from passing between themselves the right of property in merchandise which' was in the disloyal States.

It was objected that Mr. Burbridge was disqualified as a witness by his interest. But he was not interested in the event of the suit, for he would have no lien upon or title to the money recovered here. He was an unpaid vendor, with no other interest than every such vendor has that his debtor should be in funds. He is asked a direct question and gives a direct answer. He is asked if he expects to be paid the balance due him for these sugars, if the claimant recovers, and he answers, “Yes.” But that does not prove or indicate that his payment is conditioned on the claimant’s recovery here, and therefore does *674not prove a disqualifying interest. And if it suggests that the claimant’s recovery here is the only means of paying his debts,, that no more goes to the disqualification or credibility of Mr. Bur-bridge than of any other creditor of the claimant disconnected with this transaction.

And as I have considered this case, Harris’s testimony proves all that is necessary to sustain it. He proves that Burbridge & Co. were the factors of Leo L. Johnson for the Webster plantation, and according to that relation and the custom of New Orleans between planters and factors and the contract between Leo L. Johnson and Burbridge & Go., they were to advance him money and have the sale of his crops to reimburse them : that at the time of the sale they were in advance $131,360 78 ; and that the sale in question here, of the crop on the plantation, was made according to the custom and to repay those advances. And the testimony of Mr. Burbridge is merely cumulative on this.

The privileges created by the statutes of Louisiana are statute liens operating in invitum, and have nothing to do with liens by contract.

The remaining objections made by the defendants, of the statute of limitations and that the claimant was a British subject, have been overruled in other cases in this court.

On the whole case, I think the claimant is entitled to recover.

concurring:

I agree in the conclusion of the opinion read by the Chief Justice. The case is that of a sale of property by an agent within the Union lines, while the principal and the property are both within the Confederate lines. These facts bring the case within the Non-intercoitrse act, (12 Stat. L., p. 257,) as construed by this court in Blakeley’s Case, (2 C. Cls. R., p. 323,) and by the Supreme Court in the recent cases of Grossmayer and of Lane.

Burbridge & Co. did not sell or affect to sell their own alleged, equitable interest in the property. They describe it in the body of their contract as the property of Leo L. Johnson; and they sign the agreement not as factors but as agents. It is true that if this contract had been valid, they would have been estopped from setting up subsequently their own concealed interest; but such an estoppel cannot spring from an illegal transaction. I think that the contract here was void, and that *666Johnson could not do by an agent what he could not do of himself