These three cases relate to the same cotton. The several appellants are conflicting claimants, and it will conduce to brevity and clearness in the expression of our views as to the merits of their respective claims, to dispose of all the cases together.
The cotton was seized on the bank of the Ouachita River, in the State of Louisiana, by the naval forces of the United States, in April, 1864. It was sent to Cairo, and libelled as prize of war in the District Court of the United States for the Southern District of Illinois. The court, by an interlocutory decree, directed the cotton to be sold, and the proceeds to be held subject to its order. The decree was executed, and the proceeds are so held. The appellants intervened in that court by filing their petitions. The claim of Withenbury & Doyle, and that of Grieff & Zunts, each, covers all the cotton. Le More & Co. claim 830 bales.
The court below decreed against all the claimants, and ordered their petitions, respectively, to be dismissed. From these decrees the several parties appealed, and the cases are now before this court for final decision.
The original case is still pending in the District Court. No further step in it has been taken. It is there awaiting adjudication. It is not in this court, and we can do nothing which will affect it, further than to dispose of the cases before us. Neither the captors nor the United States have yet been heard in the main case. All questions between them, relating to it, are still in abeyance. If this court should decree in favor of either of the two larger claims in the cases before us, there would be nothing left for the original parties to contend for. The entire res of the controversy would be lost to both. If we should sustain the smaller claim and exclude the others, the proceeds of 105 bales of the cotton will remain undisposed of. But if the decrees below shall be affirmed, the effect will be only to remove from the original case the grafts which have been placed upon it by the parties before us, and thereby to leave it in all respects as it was before they intervened.
The place where the cotton was seized was, at the time of the seizure, and had been from the commencement of the war, insurgent territory. It was raised near the place of seizure, upon the plantation of Simmons & Tatem, and was sold by Simmons-who had become the sole owner-to the rebel government, in the fall of 1862. Payment was made in Confederate bonds.
Withenbury & Doyle were citizens of the State of Ohio, but were in Louisiana at the breaking out of the rebellion. They owned two steamboats, and were engaged in running them upon the waters of that State. They remained there, and their boats were largely employed in the rebel service. They claim to have been thoroughly loyal to the United States all the time, and that such use of their boats was, on their part, the result of fear and compulsion, and was inevitable.
They bought the cotton in controversy of McKee, the cotton agent of the rebel government, in August, 1863. The consideration of the purchase was the indebtedness of that government for the service of the boats. Withenbury says in his deposition: 'The so-called Confederate government owed me largely for the services of my steamboat, and I received from their agent, A. W. McKee, cotton in preference to Confederate money. This cotton was situated on the Ouachita and Red Rivers, about equally divided. The largest quantity in any one place was nine hundred and thirty-five bales (935), which was stored on the plantation of Dr. John T. Simmons, on the Ouachita River, below Monroe.' The testimony of McKee, the rebel agent, is to the same effect. He says: 'The services of their boats ended in 1863, in the month of April. I then agreed to pay them in cotton if money was not soon forthcoming. . . . I paid them in the Simmonsc rop of cotton, on the Ouachita River . . . There was no contract or bargain made how they were to be paid, or how much they were to be paid. The boats were required to do the work with the understanding that they would be paid the customary prices. . . . On settlement in the spring of 1863, there was a balance due them, for services rendered under my direction, of between eighty and ninety thousand dollars.'
Doyle procured permission from the proper military authorities of the United States, to bring to New Orleans, upon government transports, from Upper Louisiana, 2500 bales of cotton, then lying there, which he claimed belonged to him. The cotton in controversy was a part of it. Before this could be done the cotton in question was seized, removed to Cairo, and libelled as before stated.