1. A military commander commanding the department in which the
City of New Orleans was situate had not the right, on the 17th of
August, 1863, after the occupation of the city by General Butler
and after his proclamation of May 1, 1862, announcing that "all the
rights of property of whatever kind will be held inviolate, subject
only to the laws of the United States," to seize private property
as booty of war, or, in face of the Acts of Congress of 6th of
August, 1861, and July 17th, 1862, make any order as commander
confiscating it.
2. Where, after judgment for a certain sum, a
remittitur is entered as to part, the
remittitur
does not bind the party making it if the judgment be vacated and
set aside.
3. Where after judgment for a certain sum, execution is allowed,
during a motion for a new trial, to issue for a part of the sum,
which part is admitted to be due, this, though anomalous, is not a
ground for reversal where no objection appears to have been made
and where it may fairly be presumed that the defendant assented to
what was done, and where, a new trial being afterwards granted, it
was limited to a trial as to the excess of the claim above the
amount for which the execution was issued.
4. A promise to pay in "Confederate notes" in consideration of
the receipt of such notes and of drafts payable by them is neither
a
nudum pactum nor an illegal contract.
5. Though an illegal contract will not be enforced by courts,
yet it is the doctrine of this Court that where such a contract has
been executed by the parties themselves and the illegal object has
been accomplished, the money or thing which was the price of it may
be a legal consideration between the parties for a promise express
or implied, and that the court
Page 83 U. S. 484
will not unravel the transaction to discover its origin. The
doctrine applied to the case of money received for the sale of
"Confederate bonds."
6. Although, where
money has been deposited with a
bank, or drafts &c., to be collected in
money, and
there has been no contract or understanding that a different rule
should prevail, the bank where the deposit is made ordinarily
becomes the owner of the money and consequently a debtor for the
amount collected, and under obligation to pay on demand not the
identical money received, but a sum equal in legal value, yet this
does not apply where the thing deposited was not
money,
but a commodity, such as "Confederate notes," and it was agreed
that the collections should be made in like notes. The fact that
the collecting bank used the notes in their business does not alter
the case. The case distinguished from
Marine
Bank v. Fulton Bank, 2 Wall. 252.
On the outbreak of the rebellion of 1861, both the States of
Tennessee and Louisiana joined in that movement, and while those
two states were both under the control of the rebel powers, the
Planters' Bank of Tennessee (at Natchez) remitted to the Union Bank
of Louisiana (at New Orleans) large sums of "Confederate Treasury
notes," and also forwarded to it drafts and other claims for
collection (and a few Confederate bonds for sale), it having been
understood between the two banks that the drafts and claims thus
forwarded for collection and the price of the bonds sent for sale
were payable only in such Confederate currency, and all the
collections made on account of the Planters' Bank having been made
in that currency, with its knowledge and authority. In this way
entirely, a large balance was made up in favor of the Planters'
Bank. There was no controversy as to these facts.
About the 1st of May, 1862, New Orleans was recaptured by the
government forces and passed into their control. A large balance,
in the course of dealings already mentioned, was at this time due
the Planters' Bank.
On entering New Orleans, General Butler, the general who took
possession of it for the United States, issued a proclamation, in
which he declared:
Page 83 U. S. 485
"All the rights of property of whatever kind will be held
inviolate, subject only to the laws of the United States."
On the 6th of August, 1861, Congress passed "An act to
confiscate property used for insurrectionary purposes," &c.,
and on the 17th of July, 1862, "An act to suppress insurrection, to
punish treason and rebellion, and for other purposes." These acts
designated certain agents for seizing the property of rebels and
prescribed certain judicial proceedings for the condemnation of it
in the courts of the United States, when belonging to natural
persons who were rebels, to persons who aided, abetted, and gave
comfort to the rebellion, or who held office under the so-called
Confederate States or any state assisting to form them. But neither
of the acts gave authority to military commanders to seize such
property, nor did either make the property of any incorporated
banks liable to such seizure.
In this state of things, an order was issued on the 17th of
August, 1863, by command of Major General Banks, then in command of
the department, requiring the several banks and banking
associations of New Orleans to pay over without delay to the Chief
Quartermaster of the army, or to such officer of his department as
he might designate, all money in their possession belonging to, or
standing upon their books to the credit of,
any corporation,
association, or pretended government in hostility to the
United States, and all moneys belonging to, or standing on their
books to the credit of, any person registered as an enemy of the
United States or engaged in any manner in the military, naval, or
civil service of the so-called Confederate States, or who should
have been or who might thereafter be convicted of rendering any aid
or comfort to the enemies of the United States. The order declared
that such funds would be held and accounted for by the
quartermaster's department, subject to the future adjudication of
the government of the United States. Under this order, the Union
Bank, as the evidence tended to show, on the 10th day of September,
1863, paid to the acting quartermaster the balance standing to the
credit of the Planters' Bank on their books, being the
Page 83 U. S. 486
whole balance due. The payment was made in Confederate notes
($211,774) and the quartermaster accepted them in discharge of the
balance.
On the 15th of the same September, 1863, the Planters' Bank drew
on the Union Bank for $86,646, the sum in federal money which it
conceived to be due to it. The Union Bank refused to pay, alleging
the seizure by General Banks and payment over accordingly.
Thereupon -- on the 11th of September, 1866 -- the Planters' Bank
sued the Union Bank in the court below to recover its alleged
balance, with interest from the date of the demand. The defendant
set up the facts of the case as above given, and that the
Confederate moneys sent to the defendant by the Planters' Bank were
issued and put in circulation by the said Confederate States during
the rebellion for the purpose of maintaining and prosecuting the
war &c.; that the dealings of the plaintiff in the said
currency were designed on its part to give, and did contribute to
give circulation and credit to such unlawful issues, and that it,
the defendant, was therefore not liable, on account of the receipt
of such currency, to the plaintiff in manner and form as by it
alleged.
The case came to trial in February, 1868, and the jury returned
a verdict for the plaintiff for the amount claimed in full, with
interest, $113,296.01, and a judgment was entered accordingly.
A motion for a new trial was then made, and while the same was
undetermined and held under advisement, the following order was
entered:
"On motion of the attorneys for plaintiff it is ordered that a
remittitur of interest allowed in the judgment in this
case be entered, except what is claimed as follows"
&c.
On the same day, the attorneys of the plaintiff, on the
suggestion that the attorneys of defendant had, during the trial,
admitted in presence of the jury that there was due to plaintiff
$26,752.63, with interest from 25th November, 1863, asked that an
execution be issued for this sum, and the
Page 83 U. S. 487
motion was granted "without prejudice to the plaintiff's right
to recover the balance under the judgment in the case."
The motion for a new trial was ordered to be reargued, and after
the reargument a new trial was granted, "excepting as regards the
sum of $26,752.63, admitted by the defendant to be due to the
plaintiff."
On the 24th of January, 1871, two years and ten months after
this, the case was again submitted to the jury, and they being
sworn to try the issues, the court, against the defendant's
objection, permitted the plaintiff to withdraw his
remittitur.
On this trial, THE DEFENDANT requested the court to charge the
jury:
"That the generals commanding the army of the United States,
engaged in military operations against the rebels in the late civil
war, had the legal power to seize and take possession of the
property or effects of rebels whenever in their judgment necessary
or conducive to the successful prosecution of the war; that the
commanding generals were the sole judges [subject alone to the
control of their military superiors] of the necessity or expediency
of such seizures, and that if the jury find from the evidence that
the military authorities exacted payment of the balance on the
books of the defendant to the credit of the Planters' Bank and its
branches, then that the military authorities thus exacting payment
were invested, as regards said payments, with all the rights of a
creditor."
"That if the demand of the plaintiff arose from the receipt of
the so-called Confederate notes, with the authority of the
plaintiff, and the military authorities of the United States
exacted payment of said demand [and accepted payment in Confederate
Treasury notes], and if the said payment was made accordingly to
the said authorities under compulsion, and a receipt in full given
for the amount so paid to them, then that the said payment and
receipt are a valid acquittance and discharge of the defendant from
any liability to the extent of such part of the demand of the
plaintiff as arose from the receipt of the so-called Confederate
Treasury notes for account of the plaintiff with its authority.
"
Page 83 U. S. 488
The court did so charge, with the exception that it left out the
important words in [ ]. It said:
"The jury will determine what the payment ought to have been. I
consider that the military authorities had no right to transact
with the defendant in this case; Confederate money was then almost
worthless in the discharge of the debt due by the defendant to the
Planters' Bank."
The defendant also asked the court to charge further:
"That if the balance of account sued for is composed wholly or
in part of direct remittances from the plaintiff to the defendant
of Confederate Treasury notes to be placed to credit of the
plaintiff, and of collections for their account of drafts, actually
and in effect and intent, payable in Confederate Treasury notes,
remitted for collections by plaintiff to defendant, and by the
latter collected for account of plaintiff in Confederate Treasury
notes, and that the banks were necessary instruments of the
Confederate government in putting its issues of Confederate
Treasury notes in circulation and forcing them upon the country,
and that the plaintiff, as one of the banks, willingly lent itself
as the instrument of the Confederate government to put those issues
in circulation, then that the plaintiff cannot recover such amount
of the balance thus composed of Treasury notes and
'collections.'"
"That no lawful or valid obligation can arise from the sale of
bonds or securities of the Confederate government, and no action
lies for the proceeds of such bonds."
But both these last two charges the court refused to give.
THE PLAINTIFF asked the court to charge:
"That if the jury find that the defendant received 'Confederate
currency' on behalf of the plaintiff and entered the same to the
credit of the plaintiff on the books of his bank, and used the same
in its general business, the defendant thereby became the debtor of
the plaintiff, and the measure of the indebtedness is the value of
'Confederate currency' in the lawful money of the United States, at
the time the credit was entered as aforesaid and the collections
were made."
But the court refused thus to charge, and charged:
"That the measure of indebtedness for receipts or
collections
Page 83 U. S. 489
made by the defendant in 'Confederate currency,' and used by it
in its general business, was the value of such currency at the date
of demand of payment made by the plaintiff, and not at the date
when such currency was received and used by defendant in its
business. [
Footnote 1]"
The jury found in favor of the plaintiff for $24,713, with
interest from the 15th of September, 1863, and judgment was entered
accordingly.
Both parties excepted:
The defendant to the refusal of the court to charge as
requested, to the allowance of a withdrawal of the
remittitur, and to the order of the court ordering
execution for the $26,752.63, before the motion for a new trial was
determined;
The plaintiff to the refusal to charge as requested and to the
charge as given.
[It should be added (in order to explain a part of the argument,
and of the dissenting opinion in this case), that by acts of March
3d, 1863, [
Footnote 2] and the
11th of May, 1866, [
Footnote 3]
Congress enacted that it should be "a defense in all courts, to any
action pending or to be commenced," against anyone for "a seizure"
of property when it was shown that such seizure had been made under
any "order . . . of any military officer of the United States
holding the command of the department, district, or place in which
such seizure was made."]
Page 83 U. S. 494
MR. JUSTICE STRONG delivered the opinion of the Court.
Whether the payment in Confederate notes and the quartermaster's
acceptance of them in discharge of the balance was a satisfaction
of the claim of the plaintiffs upon the defendants is a controlling
question in the case. The circuit court instructed the jury that it
was not, because payment was made to the quartermaster in
Confederate notes, which the court was of opinion he had no
authority to receive, though holding that the military authorities
thus exacting payment were invested with all the rights of a
creditor.
It might be difficult to maintain, if the military authorities
were clothed with the rights of creditors, that is, if they had
succeeded to the position and title of the plaintiffs, that they
could not determine what funds they would receive in payment of the
balance on the defendants' books to the credit of the plaintiffs.
It is not perceived why they could not accept Confederate notes in
discharge of a debt which had become due to them. But a grave
question lies back of this. Did the order of General Banks justify
any payment of the balance to the military authorities? If it did
not, it is immaterial in what currency the payment was made.
Payment in any currency was no protection to the debtors. The
validity of the order is therefore the first thing to be
considered. It was made, as we have seen, on the 17th of
Page 83 U. S. 495
August, 1863. Then the City of New Orleans was in quiet
possession of the United States forces. It had been captured more
than fifteen months before that time, and undisturbed possession
was maintained ever after its capture. Hence the order was no
attempt to seize property
"flagrante bello," nor was it a
seizure for immediate use of the army. It was simply an attempt to
confiscate private property which, though it may be subjected to
confiscation by legislative authority, is, according to the modern
law of nations, exempt from capture as booty of war. Still, as the
war had not ceased, though it was not flagrant in the district, and
as General Banks was in command of the district, it must be
conceded that he had power to do all that the laws of war
permitted, except so far as he was restrained by the pledged faith
of the government, or by the effect of Congressional legislation. A
pledge, however, had been given that rights of property should be
respected. When the city was surrendered to the army under General
Butler, a proclamation was issued, dated May 1, 1862, one clause of
which was as follows: "All the rights of property of whatever kind
will be held inviolate, subject only to the laws of the United
States." This, as was remarked in the case of
The Venice,
[
Footnote 4]
"only reiterated the rules established by the legislative and
executive action of the National government in respect to the
portions of the states in insurrection, occupied and controlled by
the troops of the Union."
That action, it was said, indicated the policy of the government
to be, not to regard districts occupied and controlled by National
troops as in actual insurrection, or their inhabitants as subject,
in most respects, to treatment as enemies.
Substantial, complete, and permanent military occupation and
control was held to draw after it the full measure of protection to
persons and property consistent with a necessary subjection to
military government. We do not assert that anything in General
Butler's proclamation exempted property within the occupied
district from liability to confiscation
Page 83 U. S. 496
as enemies' property, if in truth it was such. All that is now
said is that after that proclamation private property in the
district was not subject to military seizure as booty of war. But
admitting, as we do, that private property remained subject to
confiscation, and also that the proclamation applied exclusively to
inhabitants of the district, it is undeniable that confiscation was
possible only to the extent and in the manner provided by the acts
of Congress. Those acts were passed on the 6th of August, 1861, and
on the 17th of July, 1862. No others authorized the confiscation of
private property, and they prescribed the manner in which alone
confiscation could be made. They designated government agents for
seizing enemies' property, and they directed the mode of procedure
for its condemnation in the courts. The system devised was
necessarily exclusive. No authority was given to a military
commandant, as such, to effect any confiscation. And under neither
of the acts was the property of a banking institution made
confiscable. Both of them had in view the property of natural
persons who were public enemies, of persons who gave aid and
comfort to the rebellion, or who held office under the Confederate
government, or under one of the states composing it. In no one of
the six classes of persons whose property was by the Act of 1862
declared subject to confiscation was an artificial being included.
It is therefore of little importance to inquire what, under the
general laws of war, are the rights of a conqueror, for during the
recent civil war the government of the United States asserted no
general right in virtue of conquest to compel the payment of
private debts to itself. On the contrary it was impliedly
disclaimed, except so far as the acts of 1861 and 1862 asserted it.
Those enactments declaring that private property belonging to
certain classes of persons might be confiscated, in the manner
particularly described, are themselves expressive of an intent that
the rights of conquest should not be exercised against private
property except in the cases mentioned, and in the manner pointed
out. And it is by no means to be admitted that a conquering power
may compel private debtors to pay
Page 83 U. S. 497
their debts to itself, and that such payments extinguish the
claims of the original creditor. It does indeed appear to be a
principle of international law that a conquering state, after the
conquest has subsided into government, may exact payment from the
state debtors of the conquered power, and that payments to the
conqueror discharge the debt, so that when the former government
returns, the debtor is not compellable to pay again. This is the
doctrine stated in Phillimore on International Law, [
Footnote 5] to which we have been referred.
But the principle has no applicability to debts not due to the
conquered state. Neither Phillimore nor Bynkershoeck, whom he
cites, asserts that the conquering state succeeds to the rights of
a private creditor.
It follows then that the order of General Banks was one which he
had no authority to make, and that his direction to the Union Bank
to pay to the quartermaster of the army the debt due the Planters'
Bank was wholly invalid. This makes it unnecessary to consider in
detail the exceptions taken by the defendants to the rulings of the
circuit court respecting the order and the alleged payment under
it, for if the order was invalid, payment to the quartermaster did
not satisfy the debt.
It is further assigned for error by the defendants that the
court allowed the plaintiffs to withdraw a remittitur entered by
them of part of a verdict obtained on a former trial of the case.
The only objection made in the court below to the allowance was,
that the
remittitur was an acknowledgment of record that
the amount remitted was not due. There had been a former trial in
which the plaintiffs had obtained judgment for $113,296.01, with
five percent interest from November 25, 1863. This was a larger
amount of interest than the petition of the plaintiffs had claimed,
and they entered on the judgment a
remittitur of the
excess, expressly reserving their rights to the balance of the
judgment. Subsequently a new trial was granted, and it is now
contended
Page 83 U. S. 498
that the remittitur had the effect of a
retraxit. As it
was entered after judgment, such would perhaps be its effect if the
judgment itself had not been set aside and a new trial had not been
granted. [
Footnote 6] But such
cannot be its operation now. If it takes effect at all it must in
its entirety, and the plaintiffs must hold their first judgment for
the balance unremitted. As that judgment no longer exists, there is
no reason for holding that the remission of a part of it is
equivalent to an adjudication against them. This assignment of
error is, therefore, not sustained.
Another error assigned by the defendants is, that the court
ordered execution to issue on the judgment first recovered for the
sum of $26,752.63, without prejudice to the plaintiffs' rights to
recover the balance, that amount having been admitted to be due,
and that this was done before the motion for a new trial was
disposed of. It must be admitted that though there was a judgment
in existence, the order of an execution at the time it was made was
anomalous. But there does not appear to have been any objection to
it, and it is not shown that the defendants have sustained any
injury in consequence of its issue. It may fairly be presumed that
the defendants assented to the order, and admitted that the sum for
which the execution was directed was due. The new trial afterwards
granted was limited to the controversy respecting the excess of the
claim over $26,752.63, which, as the order stated, "was admitted by
the defendants to be due the plaintiffs."
The only remaining errors assigned by the defendants which
require notice, grow out of the refusal of the court to charge the
jury, as requested, that if they found the balance of account sued
for was composed wholly or in part of direct remittances from the
plaintiffs to the defendants of Confederate Treasury notes, and of
collections of drafts payable and paid in such notes, and if they
found that the banks were necessary instruments of the Confederate
government
Page 83 U. S. 499
for putting its issues of Confederate notes in circulation and
forcing them upon the country, and that the plaintiffs, as one of
the banks, willingly lent itself as an instrument of that
government, then the plaintiffs could not recover such amount of
the balance thus composed of Treasury notes and collections. The
point, it will be observed, does not assume that the plaintiffs
were willing agents, or agents at all of the Confederate government
in putting into circulation the notes which went to make up the
balance of account standing to their credit. It assumes only that
they had, as such agents, put some of the issues of the government
into circulation at some time, in some transaction with some
person, not necessarily the defendants. That assumption, had it
been sustained by the finding of the jury, was wholly impertinent,
and therefore the only relevant question presented by the point was
whether Confederate treasury notes had and received by the
defendants for the use of the plaintiffs were a sufficient
consideration for a promise, express or implied, to pay anything.
After the decision in
Thorington v. Smith, the point could
not have been affirmed. A promise to pay in Confederate notes in
consideration of the receipt of such notes and of drafts payable by
them cannot be considered a
nudum pactum or an illegal
contract.
Nor should the court have charged that, in the circumstances of
this case, no action would lie for the proceeds of the sales of
Confederate bonds which had been sent by the plaintiffs to the
defendants for sale, and which had been sold by them, though the
proceeds had been carried to the credit of the plaintiffs and made
a part of the accounts. It may be that no action would lie against
a purchaser of the bonds or against the defendants on any
engagement made by them to sell. Such a contract would have been
illegal. But when the illegal transaction has been consummated;
when no court has been called upon to give aid to it; when the
proceeds of the sale have been actually received, and received in
that which the law recognizes as having had value; and when they
have been carried to the credit of the plaintiffs, the case is
different. The court is there not asked to enforce
Page 83 U. S. 500
an illegal contract. The plaintiffs do not require the aid of
any illegal transaction to establish their case. It is enough that
the defendants have in hand a thing of value that belongs to them.
Some of the authorities show that though an illegal contract will
not be executed, yet when it has been executed by the parties
themselves and the illegal object of it has been accomplished, the
money or thing which was the price of it may be a legal
consideration between the parties for a promise, express or
implied, and the court will not unravel the transaction to discover
its origin. Thus, in
Faikney v. Reynous, [
Footnote 7] a plaintiff was allowed to
recover in an action on a bond given by a partner to his co-partner
for differences paid in a stock-jobbing transaction prohibited by
act of Parliament. This was the case of an express agreement to pay
a debt which could not have been recovered of the firm.
Petrie
v. Hannay [
Footnote 8] was
a similar case, except that the partner plaintiff had paid the
differences by a bill on which there had been a recovery against
him, and his action against his co-partner for contribution was
sustained. This was an action on an implied promise.
Ex Parte
Bulmer [
Footnote 9] goes
much farther, and perhaps farther than can now be sustained. We are
aware that
Faikney v. Reynous and
Petrie v.
Hannay have been doubted, if not overruled, in England, but
the doctrine they assert has been approved by this Court. [
Footnote 10]
Lestapies v.
Ingraham [
Footnote 11]
is full to the same effect. We think therefore the court was not in
error in refusing to affirm the defendants' points.
No more need be said respecting the exceptions taken and errors
assigned by the defendants below. None of them is sustained.
A single assignment of error made by the plaintiffs below
remains to be considered. At the trial, they asked for the
following instruction:
"If the jury should find from the
Page 83 U. S. 501
evidence that the defendants received Confederate currency on
behalf of the plaintiffs, and entered it to the credit of the
plaintiffs on the books of the bank, and used it in their general
business, the defendants thereby became the debtors of the
plaintiffs, and that the measure of the indebtedness was the value
of Confederate currency in the lawful money of the United States at
the time the credit was entered and the collections were made."
This instruction the court declined giving, but in lieu thereof
charged the jury that the measure of indebtedness for receipts, or
collections, made by the defendants in Confederate currency and
used by them in their general business, was the value of such
currency at the date of demand of payment made by the plaintiffs,
and not at the date when such currency was received and used by the
defendants in their business. This refusal to instruct the jury as
requested and the instructions actually given are now complained of
as erroneous. We think, however, they were correct in view of the
assumed and conceded fact. We do not controvert the position that
generally a bank becomes a debtor to its depositor by its receipt
of money deposited by him, and that money paid into a bank ceases
to be the money of the depositor and becomes the money of the bank
which it may use, returning an equivalent when demanded, by paying
a similar sum to that deposited. Such is undoubtedly the nature of
the contract between a depositor and his banker. So also a
collecting bank ordinarily becomes the owner of money collected by
it for its correspondent, and consequently a debtor for the amount
collected, under obligation to pay on demand, not the identical
money received, but a sum equal in legal value.
But it is to be observed this is the rule where money has been
deposited, or collected, and when there has been no contract or
understanding that a different rule should prevail. The
circumstances of the present case are peculiar. It seems to have
been conceded in the court below that the deposits were made in
Confederate currency, and that the collections were made in like
currency with the assent of the plaintiffs. The instructions asked
of the court assume this.
Page 83 U. S. 502
The Union Bank then became the agent of the plaintiffs to
receive and to collect, not money, but Confederate notes, or
promises, and the obligation it assumed was to pay Confederate
notes when they should be demanded. The subject of the contract was
a commodity, not money, and there was no default in the Union Bank
until a demand was made and refused. And from the nature of the
transaction it is to be inferred that the intent of the parties was
that the one should impose and the other assume only a liability to
return to the plaintiffs notes of the Confederate government like
those received, or collected; notes promising to pay a like sum.
And it is not perceived that the effect of the assumption is
changed by the fact that the defendants used the notes received in
their general business, if they did use them, prior to any demand
for the fulfillment of their undertaking. Such use was in
contemplation of the parties from the beginning. In
Robinson v.
Noble's Administrators, [
Footnote 12] a promise to pay in Cincinnati at a certain
time, "in the paper of the Miami Exporting Company, or its
equivalent," was held by this Court to impose upon the promisor
only a liability to make good the damages sustained through his
failure to pay at the day, and that those damages were measured by
the market value of the paper at the time when payment should have
been made. The promise was assimilated to an engagement to deliver
a certain quantity of flour, or any other commodity, on a given
day. A loan for consumption to be returned in kind contemplates a
restoration not of the identical thing loaned, but of a similar
article equal in quantity, and if no return be made, all that the
lender can require is the value of the thing which should have been
returned at the time when the contract was broken. The value at the
time of the loan is not to be considered. Both parties take the
risk of appreciation or depreciation. Why should not a similar rule
be applied to the present case? Ought the plaintiffs to recover
more than the damages they have sustained from the breach of the
contract? Ought they to be
Page 83 U. S. 503
placed in a better position than that they would occupy if the
defendants had paid them the right quantity of Confederate notes
when they were demanded? We think not. Clearly if the notes had
appreciated after they were received by the defendants, and before
the demand as made, the plaintiffs would have been entitled to the
benefit of the appreciation. This is because of the nature of the
transaction, and it would seem, for the same reason, the risk of
depreciation was necessarily theirs.
This case differs very materially from
Marine Bank v. Fulton
Bank. [
Footnote 13]
There, it is true, the collecting bank received depreciated
currency of the Illinois banks, and, it may be assumed, with the
assent of its correspondent. But there were positive instructions
to hold the avails of the collections subject to the order of the
bank which had sent the notes for collection, and the proceeds of
the collections were an authorized lawful currency. The two banks
therefore stood to each other in the relation of debtor and
creditor, and the collecting bank acknowledged that relation
immediately on the payment of the notes which had been sent to it
for collection. Not so here. The collections were not made in
money, and it was not the understanding of the parties that money
should be paid. We hold, therefore, that the Planters' Bank ought
not to be permitted to recover more than the damages sustained by
it in consequence of the defendant's failure to deliver Confederate
notes when they were demanded, and those damages are measured by
the value of those notes in United States currency at the time when
the demand was made and when the notes should have been delivered;
and in so holding we do not intend to deny or qualify the doctrine
asserted in
Marine Bank v. Fulton Bank or in
Thompson
v. Riggs. [
Footnote 14]
It follows that the charge given to the jury was correct.
There is, then, nothing in the record complained of by either
party which would justify our ordering a new trial.
Judgment affirmed.
Page 83 U. S. 504
[
Footnote 1]
The reader will, of course, understand that between the two
dates mentioned here, "Confederate currency" had largely diminished
in market value.
[
Footnote 2]
12 Stat. at Large 756 ยง 4.
[
Footnote 3]
14
id. 46.
[
Footnote 4]
69 U. S. 2 Wall.
258.
[
Footnote 5]
Vol. 3, part 12, ch. 4.
[
Footnote 6]
Bowden v. Horne, 7 Bingham 716.
[
Footnote 7]
4 Burrow 2069.
[
Footnote 8]
3 Term 419.
[
Footnote 9]
13 Vesey 316.
[
Footnote 10]
Armstrong v.
Toler, 11 Wheat. 258;
McBlair v.
Gibbes, 17 How. 236;
Brooks v.
Martin, 2 Wall. 70.
[
Footnote 11]
5 Barr, 71;
see also Farmer v. Russell, 1 Bosanquet
& Puller 296.
[
Footnote 12]
33 U. S. 8 Pet.
181.
[
Footnote 13]
69 U. S. 2 Wall.
252.
[
Footnote 14]
72 U. S. 5 Wall.
663.
MR. JUSTICE BRADLEY, dissenting.
I dissent from the judgment of the Court in this case. The
officer in command of the armies of the United States, after the
possession of New Orleans had been secured, required debtors in New
Orleans of creditors in the enemy's lines to pay such debts to the
proper receiving officer of the army. That the debts due from the
citizens of a belligerent state to the citizens of the state with
whom the former is at war may be confiscated is undoubted
international law. If such confiscation is in fact made by the
military authorities, and if the action of those authorities is
assumed or confirmed by the sovereign authority, the confiscation
is perfect.
In this case, the acts of the military authorities have been
substantially adopted and confirmed by the federal government in
passing a law exempting military officers from all actions and
suits for any acts done in their military capacity.
By this act, if any wrong was done, the government assumes it
and holds itself responsible to the injured party, if any
illegality occurred.
One party must suffer in this case, either the debtor or the
creditor, and as the debtor was compelled to pay the debt to the
military authorities, it ought not to be compelled to pay it over
again to the creditor. Let the creditor apply to the federal
government for relief, by which the acts of the military
authorities have been, in effect, assumed and confirmed.
In my judgment, such a disposition of the case would better
accord with the principles of international law and the mutual
rights and relations of all the parties concerned.
