doubtless, true, that whether the property passes | prepare it for delivery by ginning, baling and or not is dependent upon the intention of the parties to the contract, and that intention must be gathered from the language of the instrument. There are, however, certain rules for the construction of such contracts, which are well settled in England and, we think, also in this country. Mr. Justice Blackburn, in his work on sales (pp. 151, 152) states two of them, and Mr. Benjamin, in his treatise (2d ed., p. 236), adds a third. They are as follows. First. "When, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vest ing of the property." Second. "Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted. Third. Where the buyer is by the contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” These may be regarded as rules for ascertaining the intention of the parties. They are, in most cases, held to be conclusive tests. Though not supported by all the decisions, they certainly are generally accepted in England and by most of the courts in this country. And they are the rules which are applicable to contracts for the sale of specific chattels; contracts which define the articles which are the subjects of agreement, either single articles or aggregates separated from others, as the grain in a bin, the hides in a specified vat, etc., etc., or such a case as the present, all the cot ton at a designated place. A considerable number of the numerous authorities which justify these rules are collected by Mr. Benjamin in his treatise on Sales, 2d ed., p. 234. et seq. Applying them to the contract now under consideration, we think it cannot be maintained that the parties intended the contract should pass the ownership of the cotton at once to the buyer, without any ascertainment of the whole price by weighing, without its complete preparation for delivery, without any delivery and without payment. This is not the case of an unconditional sale of a specific chattel for an ascertained price. Its subject was the crops of cotton then lying in Wilkinson County. The contract was a cash contract. No credit was intended. An ascertainment of the price by weighing was contemplated, though it is not stated where the weighing should be done. The vendor undertook to deliver at Fort Adams. He was to deliver it in bales. Yet all the property was not in a deliverable state. Part was unginned, unbaled and unbagged. The vendor was to bagging it, and Lobdell was to furnish the necessary bagging, rope and twine. This was to put the cotton into the condition in which he was bound to receive it, for he was not bound to receive any unless the whole was ginned, baled and bagged. The contract was entire. And the vendor was not bound to put the cotton into a deliverable state unless Lobdell furnished the necessary materials. Besides, it was stipulated that the cotton should be received by Da Silva & Co. Our conclusion does not rest merely on the ground that the cotton was not weighed or delivered. It is unnecessary to decide that weighing the cotton was in this case a prerequisite to the transmission of the property, though that appears to be the law in England, when by the contract the goods are to be weighed by the vendor, or by him concurrently with the vendee. In the leading case of Hanson v. Meyer, 6 East, 614, where it appeared that under a contract of sale a vendee agreed to purchase all the starch of the vendor, then lying at the warehouse of a third person, at so much per hundred weight, by bill at two months, and the starch was in papers but the exact weight was not then ascertained, and was to be ascertained afterwards, and fourteen days were to be allowed for the delivery; and where the vendor gave a note to the vendee, addressed to the warehouse keeper, directing him to weigh and deliver to the vendee all his starch, it was decided that the absolute property in the starch did not pass to the vendee before the weighing, which was to precede the delivery, and to ascertain the price. And this, though a part had been weighed and delivered, and though a credit was given. Nothing was wanting to specify the subject of the contract. It was all the vendor's starch in the warehouse. So in Simmons v. Swift, 5 Barn. & C., 857, where the contract was, I have this day, October 23d, sold the bark stacked at Redbrook, at £9 56. per ton of twenty-one hundred weight, to Hezekiah Swift, which he agrees to take and pay for on the 30th of November," and some of the bark was weighed and delivered, it was held that the property in the residue did not vest in the purchaser until it had been weighed. In Logan v. Le Mesurier, 6 Moore, P. C., 116, the sale was by the following contract: Hart, Logan & Co., of Montreal, sell, and Le Mesurier, Routh & Co., of the same place, buy a quantity of red pine timber, the property of Thomas Durell, of Hull, L. C., but under the control of the sellers, now lying above the rapids, near the Chaudiere Falls, Ottowa River, and stated by the said Thomas Durell to consist of 1391 pieces, measuring 50,000 feet, more or less, deliverable at Quebec on or before the 15th of June next, and payable by the purchasers' promissory notes, at ninety days from this date, at the rate of 94d. per foot, measured off. Should the quantity turn out more than above stated, the surplus to be paid for by the purchaser at 94d. per foot on delivery, and should it fall short, the difference to be refunded by the sellers." It was held that by the terms of the contract the sale was not complete until the measurement and delivery of the timber was made, and that the transfer of the property was postponed until the measurement at care, however, to review the decisions on this subject further, for the stipulation in the contract now under consideration, that the cotton should be paid for when weighed, was only one of several provisions tending to the conclusion that the intention of the parties was not to effect an immediate passing of the property. We have already noticed that no sale upon credit was intended. There was, therefore, no reason why the vendor should part with anything before the purchase money was paid or tendered. The possession was certainly retained. The vendors undertook to deliver at Fort Adams. To enable them to carry, and thus deliver, possession was indispensable. The contract also provided that the cotton should be received by De Silva & Co. This agreement to carry and deliver at Fort Adams on the Mississippi, where it was obviously intended the contract should be consummated by the receipt of the cotton and the payment of its price, concurs with other circumstances in indicating a purpose of the parties that the property was not intended to be changed until the weighing, de the delivery. Here the timber was fully speci- | passed until these acts were done. We do not fied by the description, and by the place where it lay. A statement of the estimated quantity was given; the time and place of delivery was designated, as was the price per foot, measured off. Credit was also stipulated for. It was the case of selling ascertained chattels for an ascertainable sum. If this stood alone the contract would have passed the property, but it was controlled by the provisions for the possession, carriage and delivery, as well as the measurement and re-adjustment of the price. Many other English cases to the same effect might be cited. See Zagury v. Furnell, 2 Camp., 240; Rugg v. Minett, 11 East, 210: Gilmour v. Sup. ple, 11 Moore, P. C., 551. We do not understand that there is any disposition to depart from the doctrine of these cases, or that of Mr. Blackburn's first and second rules. Of course, when nothing remains for the seller to do, when the weighing or measurement stipulated for is incumbent upon the buyer, or when the parties have provisionally agreed that a certain sum shall be taken for the price, subject to future correction, the contract is not within the rules. Turley v. Bates, 2 Hurls. & C., 200, has some-livery, receipt and payment took place. So it times been thought a departure from the earlier cases, but we think without reason. It was the case of the sale of an entire heap of fireclay at two shillings per ton. The buyer was to cart it away and weigh it. He weighed, removed and paid for a part, and refused the rest. It was held the property of the whole heap had passed to him. But here the seller had nothing to do with the weighing or delivery. He had performed all he was required to do, either for ascertaining the quantity or the price. Besides, the jury had found as a fact that the sale was of the whole heap. The case of Kershaw v. Ogden, 3 Hurls & C., 717, is in substance the same. In each of these cases the contract was in parol, and what it was, necessarily, for a jury. was regarded in Logan v. Le Mesurier, supra. Indeed, assuming, as the contract warrants, that the sellers were to carry the cotton to a designated place, and to ascertain its quantity and aggregate price by weight before delivery, and assuming that it was then to be received, and that payment for the whole was to be concurrent with the delivery, it is hard to find any intention that the owners intended to part with their ownership while the cotton lay at Felter's plantation. Added to this is, we think, a very significant circumstance. The contract shows that a portion of the cotton was not in a condition for delivery. True, it was relatively but a small portion, sufficient, as found by the court, to make about twenty bales. But, as we have noticed, It is true there are some American decisions, the contract was entire. It was for all the crops. especially in New York, that are not in entire The purchaser was under no obligation to take harmony with those we have cited. There are less than the whole. The subject of the conat least some dicta in Crofoot v. Bennett, 2 N. tract was baled cotton, and Lobdell bargained Y., 258, tending to show that specification of for that. Nothing in the contract, indeed, the subject in a contract for sale is sufficient to shows clearly how much of the cotton was unpass the property, though the vendor has the ginned, and how much was unbaled, but it reduty still of ascertaining the entire price by veals that a portion was; and certain it is, it was weighing or measuring before delivery. And in considered essential that all which had not been Kimberly v. Patchin, 19 N. Y., 330. and Rus-ginned and baled and bagged, should be put sell v. Carrington, 42 N. Y., 118, it seems to have been ruled that the sale of a specified quantity of grain, part.of a larger bulk, with a receipted bill of sale and an order for the grain, passed the title without any actual separation or delivery of the property. These decisions, we think, are not in accordance with the authorities generally in this country. They are in conflict with later decisions in New York. In Kein v. Tupper, 52 N. Y., 553, the English rule was strictly accepted. There it was said by Chief Justice Church, that when anything remains to be done by the vendor to ascertain the identity, quantity or quality of the property, no title passes. That was the case of a sale of a certain number of bales of cotton, described by marks, at so much per pound, and the court said, as the cotton was to be weighed by the vendors to ascertain the quantity, and sampled by both parties to ascertain the quality, no title into that condition before the vendee was required to accept it. And this the sellers were required to do. So much is clearly implied in the contract. If, then, it be, as asserted in Mr. Blackburn's first rule, that when anything remains to be done by the seller for the purpose of putting the goods into that state in which the purchaser is bound to accept them, or, in other words, into a deliverable condition, the property does not pass, it cannot be held that there was any intention of Gordon, or his principals, to transmit to Lobdell the ownership of the cotton before its delivery and before the payment of its stipulated price. We do not deny that a person may buy chattels in an unfinished condition and acquire the right of property in them, though possession be retained by the vendor, in order that he may fit them for delivery. But in such a case the intention to pass the ownership by the contract cannot be left in doubt. The presumption is against such have no bearing upon the question whether the an intention. property passed. The confirmation of the conIt should also be noticed that Lobdell under-tract and its effect are distinct matters. Whattook by the contract to furnish the necessary bagging, rope and twine to put the unginned and unbaled cotton in a deliverable state. Obviously this was to be done before the sellers were bound to deliver. It was, therefore, a condition precedent upon which the vendee's right depended. With this condition there was no compliance, and thus neither the vendors nor the vendee did all that it was contemplated and agreed they should do preparatory to the acceptance of the goods, or to bring the cotton to the condition in which it was understood it should be to entitle the sellers to the price stipulated. ever may have been thought by some old writers respecting the effect in the transmission of property, of giving and receiving earnest money, it is now considered of no importance, or of the smallest importance. The subject is discussed in Benjamin on Sales, 2d ed., pp. 260-262, and the conclusion is reached that the true legal effect of earnest is simply to afford conclusive evidence that a bargain has been actually completed, with mutual intention that it should be binding on both; and that the inquiry, whether the property has passed in such cases, is to be tested not by the fact that earnest is given, but by the true nature of the contract concluded by giving the earnest. The author says further, "No case has been found in the books in which the giving of earnest has been held to pass the property in the subject-matter of the sale, where the completed bargain, if proved in writing, or in any other sufficient manner, would not equally have altered the property." In our judgment, therefore, the contract of July 31st, 1863, must be regarded as only an agreement to sell, and not as effecting a transfer of the ownership. It left the property in Elgee, where it was before. We are the better satisfied with this conclusion because it works substantial justice, and because it accords with what appears to have been the subsequent understanding of the parties. The bargain was for cash, yet no steps were taken to consummate it until after the cotton was seized in April, 1864. Never, indeed. No tender of the price was made, the cotton was neither weighed, delivered nor received and, throughout, both parties appear to have treated the agreement as merely executory. The result of what we have said is, that neither Lobdell nor Woodruff and Bouchard, who claim under him, had any such ownership of the cotton as to entitle them or either of them to sue in the Court of Claims for its proceeds. On the other side it has been argued with much earnestness, that the provision in the contract, the cotton, from the date thereof, should be at the risk of Lobdell, exhibits an intention of the parties that the property should pass. It must be admitted that when a contract of sale has transmitted the property in its subject to the buyer, the law determines, in the absence of agreement to the contrary, that the risk of loss belongs to him. This is a consequence of his ownership, though undoubtedly the prop erty may be in one and the risk in another. But it needs no agreement that the buyer shall take the risk, if it is intended the ownership shall pass to him. Hence the stipulation that the cotton should be at the risk of Lobdell after the date of the contract, instead of showing an intention of the parties that the right of property should pass to him, seems rather to indicate a purpose that the ownership should remain unchanged. Else why introduce a provision totally unnecessary? Such was the inference drawn from the introduction of a similar clause in a contract considered in Martineau v. Ritching, L. R., 7 Q. B., 436. There it was stipulated that the goods should remain at the risk of the sellers, and Lord Cockburn asked "If the property in the goods had not passed to the buyers, why it was said the goods should re- We come next to the claim of Mrs. Nutt, main at the risk of the sellers?" adding further, executrix of Haller Nutt, deceased. A very vig "what would be the necessity, what would be orous argument has been made to us in support the object and purpose of such a stipulation if of this claim, but we think it cannot be susthe property still remained in them. Of course tained. Assuming that Nutt's contract with it would be at their risk." It may be asked Elgee, made in October, 1863, was not illegal, what, then, was the object of stipulating that the that it was not in violation of the non-intercotton should be at Lobdell's risk if it was not course laws, it still was not such a contract as intended to evidence a transmission of the title? passed the property in the cotton. The finding No doubt some purpose existed, and we think of the court is, that in October, 1863, Truman it may be found in the circumstances in which Holmes, as the agent of Dr. Nutt, contracted the parties stood when they contracted. The with Elgee for the sale from him of so much of cotton was in a disturbed region of the country. the 2,100 bales of cotton stowed at Felter's planIt was in danger of destruction by the Confed- tation as he (Holmes) should get out in safety erate forces, and of capture by the United to a market, for the price of £15 per bale, to States forces. The sellers undertook to carry be paid in Liverpool. The risk of the cotton and deliver it at the landing at Fort Adams. till got out to be on Mr. Elgee. That this was Such a delivery might be rendered impossible but an executory contract is very plain. Its subby the vicissitudes of the war, and hence it was ject was indefinite. It was not necessarily the a reasonable provision that Lobdell should bear 2,100 bales; not certainly any of them. It was the risk, that the sellers should not be answer- simply so much of them as Holmes should get able in damages in case of Confederate burn-out in safety to a market. The agreement coning or federal capture. To us this is a sufficient explanation of the assumption of the risk by Lobdell, without regarding it as a mutual recognition of a change of ownership. It is hardly necessary to add that the receipt of $30 "in order to confirm the contract," can templated that he might never get out any. If so, nothing was agreed to be sold. In fact be never did get out a bale. Whatever else may be dispensed with, it is certain that there can be no sale of personal chattels without a specific identification of the thing sold. Which of the whole number of bales could the purchaser say was his? For which of them could he have been compelled to pay? And there is no evidence that Holmes ever received the cotton or any part of it, or asserted any possession, though the sale was on credit, and if the property was his principal's he was entitled to remove it at once to a market. Our attention has been called to the letter ad dressed by Elgee to Holmes afterwards, which it is argued was itself a sale. It was dated Oct. 8, 1863, and was as follows: 2. The Constitution did not prohibit the creation, by military authority, of courts for the trial of civil causes during the civil war, in conquered portions of the insurgent States. 3. Whether a State Court acted within its jurisstate tribunals. diction or not, is a question exclusively for the 4. The legislation of a State may validate the judgments of a State Court in fact, though in giving the judgments the court may have transcended its jurisdiction. [No. 202.] Argued Feb. 24, 1875. Decided May 3, 1875. DEAR SIR: It having been agreed on beIN ERROR to the Supreme Court of the State of Louisiana. tween you and myself that I sell to you all the The case is stated in the opinion of the cotton of Elgee and Chambers now baled and court and, more fully, in the dissenting opinunder shed, for the price of fifteen pounds ster-ion of Mr. Justice Field. ling per bale, payable in Liverpool, you will cause the same to be placed to my credit with James A. Jackson & Co., of Liverpool. CAPTAIN TRUMAN HOLMES, Present. J. K. ELGEE. This was not found by the court to have been the contract between the parties. It refers to the former agreement, and evidently it was intended as a direction where to pay the price of the cotton, if any should be got out, and if any purchase money should become due. It had no other purpose. It was not even a delivery order. Much less can it be regarded as a bill of sale. And there is no finding that it was ac cepted. The only contract, therefore, respecting the sale of the cotton to Holmes upon which the executrix of Dr. Nutt can rely, is that found by the court to have been made; a contract for the sale of so much of the 2,100 bales as Holmes should get out in safety to a market, and that contract passed no property in the cotton. This disposes of the whole case. The prop erty in the cotton was in Elgee, and neither of the contracts proved devested him of his ownership. The result is that his personal representatives are entitled to a judgment for the entire proceeds of the cotton held in trust for the Messrs. E. & A. C. Janin and Louis Janin for plaintiffs in error: New Orleans, at the date of the proceedings instituted by the Union Bank against the Mechanics' and Traders' Bank, was in the peaceable possession of Gen. Butler, and had been since May 6, 1862. The The Venice, 2 Wall., 258 (69 U. S. XVII., 866). This restored the national territory. Circassian, 2 Wall., 158 (69 U. S., XVII., 802); U. S. v. Stark, 11 Am. Law Reg. (N. S.) for Jan., 1872, 40; Woods, Circuit Court J., and the cases there referred to. The Grapeshot, 9 Wall., 129 (76 U. S., XIX., 651). New Orleans was then national territory; it had been purged of secession; it was at that time in constant communication with the North and the West, and with the seat of government. Congress was in session, and there was daily communication between the two points. Under these circumstances, where was the necessity to appoint a judge to try civil cases between two citizens of New Orleans, in June, 1862? If it had been a promissory note, the Union Bank could not have obtained judgment in the ordinary course of the courts, in the short delay that occurred between the suit and the judgment before Mr. Justice Bell, accelerated as he was by "orders" from headquarters. The case of Ex parte Milligan, 4 Wall., 2 (71 U. S., XVIII., 281), as we have seen, was for what the government alleges to be a military offense: Conspiring against the Government of the United States." The whole attempt to sustain the pretension to try the prisoner by a military commission was predicated on the plea of necessity and, as will be seen, it failed. In the proceeding against the Union Bank there was no necessity. But the extraordinary part of the proceeding is, that the provost judge, who was doubtless a gentleman and a good lawyer, although as a decider of cases he was a mere judicial waif, decided the case in favor of the Mechanics' and Traders' Bank. His judgment was not appealed, nor was error taken to General Butler; but the General ordered him to open the case and reverse his own decision; and this he did, and, as he says, "under orders." Who was the judge? Surely not Bell, for his will, his mind, his judgment were at variance with his decree. We think it clear that General Butler was the judge, and that Bell did but record his decree. If this be so, we have the military commander of a recaptured city ordering one citizen to pay a sum of money to another. For the law to sustain him see his brief 71 U. S., 8 (XVIII., 282. et seq.) He was, at the time, supreme legislator, supreme judge and supreme executive. And all without any necessity whatever. U. S. v. Ferreira, 13 How., 41. This, then, is simply a judgment rendered by a court which never had any jurisdiction and which, without leaving a record of its proceedings, has gone out of existence. We say that its decree was judicially inoperative, and the money paid under it, in virtue of the military order, subjecting the citizen of New Orleans to obedience to its mandates, but paid under protest, did not devest the Mechanics' and Traders' Bank of the ownership of the money so paid; nor did it give the Union Bank a right to it. Gilbert v. Hollinger. 14 Ann., 445; Beard v. Morancy, 3 Rob., 121; Holmes v. Hemkin, 6 Rob., 54; Dufour v. Camfranc, 11 Mart., 610; Elliott v. Peirsol, 1 Pet., 340; Civ. Code, 2129, 2291. It is manifest that the national authorities never supposed that General Butler had the power to appoint a provost judge to try cases between the citizens of New Orleans. If so, why did the President, in October, 1862, ap point Judge Peabody to exercise those judicial functions? That the President, as Commander-in-Chief, had the constitutional authority to establish a provisional court in time of war, is conceded. It is so decided in Texas v. White, 7 Wall., 700 (74 U. S.. XIX., 227); and in The Grapeshot, 9 Wall., 129 (76 U. S., XIX., 651). In the latter case the Chief Justice said: "It was a military duty to be performed by the President, as Commander-in-Chief, and intrusted as such with the direction of the military force by which the occupation was held." But, because the Constitution gave the power to the President, to appoint judges, it does not follow that every commanding general, in every military district, may do so. In the case of The Grapeshot (supra), this court, in discussing the authority of the President to establish a provisional court in New Orleans, refers to Leitensdorfer v. Webb. 20 How., 176 (61 U. S., XV., 891), and incidentally to Jecker v. Montgomery, 13 How., 498; 18 How., 110 (59 U. S., XV., 311), and Cross v. Harrison, 16 How., 164. Leitens dorfer's case is altogether different from this. In that case the appointment and the authority were received from the President, and it did not originate with General Kearney. If General Kearney had of his own mere volition appointed a civil judge, then the case would have been like that of Jecker v. Montgomery, and would have been decided, doubtless, in the same manner. Mr. P. Phillips, for defendant in error. Mr. Justice Strong delivered the opinion of the court: Failing in the District Court, the plaintiffs removed the case to the Supreme Court, where the judgment of the inferior court was affirmed. and they have now brought the record here for our review. The facts of this case, so far as they are necessary to a proper understanding of the question raised, are the following: In May, 1862, after the capture of New Orleans by the United States army, Gen. Butler. then in command of the army at that place, issued a general order appointing Major J. M. Bell, volunteer aid de-camp, of the division staff, provost judge of the city, and directed that he should be obeyed and respected ac cordingly. The same order appointed Captain J. H. French provost-marshal of the city, and Captain Stafford deputy provost-marshal. A few days after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan not having been repaid, brought suit before the provost judge to recover the debt. The defense was taken that the judge had no jurisdiction over civil cases, but judgment was given against the borrowers, and they paid the money under protest. To recover it back is the object of the present suit, and the contention of the plaintiffs is that the judgment was illegal and void, because the Provost Court had no jurisdiction of the case. The judgment of the district court was against the plaintiffs, and this judgment was affirmed by the Supreme Court of the State. To this affirmance error is now assigned. The argument of the plaintiffs in error is that the establishment of the Provost Court, the appointment of the judge, and his action as such in the case brought by the Union Bank against them are invalid, because in violation of the Constitution of the United States, which vests the judicial power of the General Government in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish, and that under this constitutional provision they were entitled to immunity from any liability imposed by the judgment of the Provost Court. Thus, it is claimed, a federal question is presented, and the highest court of the State having decided against the immunity claimed, our jurisdiction is invoked. Assuming that the case is thus brought within our right to review it, the controlling question is, whether the commanding general of the army which captured New Orleans and held it in May, 1862, had authority after the capture of the city to establish a court and appoint a judge with power to try and adjudicate civil causes. Did the Constitution of the United States prevent the creation of civil courts in captured districts during the war of the rebellion, and their creation by military authority? This cannot be said to be an open question. The subject came under consideration by this This case originated in the Sixth District court in The Grapeshot, 9 Wall., 129 [76 C. S., Court of the Parish of Orleans, in the State of XIX., 651], where it was decided that when, Louisiana, where the plaintiffs sued the Union during the late civil war, portions of the insur Bank to recover $130,000 which they had paid gent territory were occupied by the national to the defendants under compulsion of the judg- forces, it was within the constitutional authorment given by the Provost Court of New Ority of the President, as Commander-in-Chief, to leans in 1862, when the city was occupied by establish therein provisional courts for the hear the United States forces under General Butler.ing and determination of all causes arising un |