DESMARE V. UNITED STATES, 93 U. S. 605 (1876)

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U.S. Supreme Court

Desmare v. United States, 93 U.S. 605 (1876)

Desmare v. United States

93 U.S. 605


1. A domicile once existing continues until another is acquired, and, where a change thereof is alleged, the burden of proof rests upon the party making the allegation.

2. A., whose domicile was, and continued during the war to be, at New Orleans, went into or remained within the territory embraced by the rebel lines, engaged actively in the service of the rebel government, and, while so engaged, purchased certain cotton, which, upon the subsequent occupation of that territory by the military forces of the United States, was seized, sold, and the proceeds paid into the Treasury. Held that his purchase of the cotton was illegal and void, and gave him no title thereto.

3. Mitchell v. United States, 21 Wall. 350, reaffirmed and applied to this case.

On the 26th of June, 1867, Alphonse Desmare, of New Orleans, La., filed his petition in the Court of Claims to recover the value of five hundred and fifty-six bales of cotton, alleging that, in the year 1863, he was the owner of that number of bales, then at Opelousas, in the Parish of St. Landry, La.; that, in April, 1863, said cotton was taken and captured by officers of the United States Army, by whom, under the orders of General N. P. Banks, commanding the Department of the Gulf, it was shipped to New Orleans, sold, and the proceeds placed in the Treasury of the United States.

The court below found, as matters of fact:

1. The claimant, before the war, had his domicile in the City of New Orleans, La., where he resided, and was a partner with one Laforest, under the style of Laforest & Desmare, commission merchants, and he was residing there also on the 19th of January, 1866. There is no evidence of any change of said domicile, or of a dissolution of said partnership; nor is there any evidence as to where the claimant was on the 27th of April, 1862, when the United States military forces took possession of New Orleans, or before that date, during the war, of

Page 93 U. S. 606

afterward, until October, 1862, when it is proved he was in the Parish of St. Landry, La., purchasing the cotton, which is the subject of this action, and acting as agent of the rebel government for the exchange of Confederate bonds for Confederate notes, for which latter purpose he had an office at Opelousas in said parish. Said parish was within the rebel lines until April, 1863, when it was taken possession of by United States forces under General Banks.

2. Between the 1st of October, 1862, and the month of April, 1863, the claimant, in person, purchased within said parish, of different persons, two hundred and sixty-eight bales of cotton, and paid for the same in Confederate money. All of said cotton was seized by officers of the United States upon the entry of their military forces into said parish was turned over to agents of the Treasury Department, sold, and the net proceeds, to the aggregate amount of $51,456, are now in the United States Treasury.

3. Said claimant and one Dupre, jointly and personally, purchased within said parish, March 3, 1863, eighty-four bales of cotton, for which they gave their notes, with security. These notes were paid after the war, one-half by the claimant and one-half by said Dupre. This cotton was seized by officers of the United States in April, 1863, was turned over to Treasury agent and sold, and the net proceeds thereof, to the amount of $16,128, are in the United States Treasury.

4. The claimant has failed to prove that any other cotton owned by him was seized by officers or agents of the defendants.

The court thereupon concluded, as matters of law:

1. The claimant's domicile, found to have been in the City of New Orleans before the war and not proved to have been changed, is presumed to have continued and been in that city when the purchases of cotton were made by him within the rebel lines, as set forth in the findings.

2. The claimant's domicile being in the City of New Orleans, he is presumed to have been there personally until he is proved to be elsewhere, and the claimant, not showing that he was absent from the place of his domicile when the city was captured, April 27, 1862, it is presumed he was there at that time,

Page 93 U. S. 607

and subsequently crossed the federal lines about the time he is proved to be in the Parish of St. Landry.

3. The purchases of cotton by the claimant, under the circumstances set forth in the findings, were void as against the law and public policy of the United States, and he acquired no title to the cotton thereby.

The plaintiff's petition having been dismissed, he appealed to this Court.

Page 93 U. S. 609

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