Planters ’ Bank v. Union Bank, 83 U.S. (16 Wall.) 483

e credit of the Planters’ Bank on their books, being the p. 486whole balance due. The payment was made in Confederate notes ($211,774) and the quartermaster accepted them in discharge of the balance.

But the court refused thus to charge, and charged. “ That the measure of indebtedness for receipts or collec p. 489made 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.”*

tioned he course’ understand that between the two dates menvalue 6 federate currency ” had largely diminished in market t 12 Stat, at Large, 756, §4. j 14 Id 46> p. 490ate as complete a discharge of the debtor, as if it had been executed by the creditor himself.

The author then quotes Bynkershoek, to the effect that p. 491the debt is satisfied and extinct; and this, he says, is unquestionably the opinion of the greater number of the most able jurists; the conclusion from the analogies to be drawn from the Roman law, and the international practice as shown by treaties.

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 pay ment of the balance on the defendants’ books to the credit of the plaintiffs. It is not perceived why they could, not ac cept Confederate notes in discharge of a debt which ha become due to them. But a grave question lies back o this. Did the order of General Banks justify any payment of the balance to the military authorities? If it did not,1 is immaterial in what currency the payment was ma Payment in any currency was no protection to the.de toi The validity of the order is, therefore, the first thing to considered. It was made, as we have seen, on the 17t 0 p. 495August, 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 bellofl 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 1st, 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,* only reiterated the rules established by the legislative and executive action of the National government in respect to t e 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 asm actual insurrection, or their inhabitants as subject, in most lespects, to treatment as enemies.

cation 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 com fort 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 impoi tance to inquire what, under the general laws of wai,ai the rights of a conqueror, for during the recent civil war t i government of the United States asserted no genera in virtue of conquest to compel the payment of private e to itself. On the contrary it was impliedly disclaims ,e cept so far as the acts of 1861 and 1862 asserted it. enactments declaring that private property belonging toc^ tain classes of persons might be confiscated, in the ma particularly described, are themselves expressive o an that the rights of conquest should not be exeicise ag private property except in the cases mentioned, anc 1 manner pointed out. And it is by no means to e a n that a conquering power may compel private de tois p. 497their 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,* to which we have been referred. Bat 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.

The only remaining errors assigned by the defendants which require notice, grow out of the refusal of the court o charge the jury as requested, that if they found the balance of account sued for was composed wholly or in part of 1 rect remittances from the plaintiffs to the defendants of Con federate treasury notes, and of collections of drafts paya e and paid in such notes, and if they found that the ban s were necessary instruments of the Confederate goveininen p. 499for 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 onfederate notes, in consideration of the receipt of such uotes and of drafts payable by them, cannot be considered a nWizm pactum or an illegal contract.

e 18 1 >erent. The court is there not asked to enforce p. 500an 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* a plaintiff was allowed to recover in an action on a bond given by a partner to his copartner for differences paid in a stockjobbing 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^ 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 copartner for contribution was sustained. This was an action on an implied promise. Ex parte Bulmqr\ goes much farther, and perhaps farther than can now be sustained. We are awar$ 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 couit.§ Lestapies v. Ingraham\\ is full to the same effect. We thin , therefore, the court was not in error in refusing to affirm the defendants’ points.

|| 5 Barr, 71; see also Farmer v. Bussell, 1 Bosanquet & a er> p. 501evidence 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 facts. We do not controvert the position that generally a bank becomes a debtor to its depositor by its receipt of money deposited by ini, 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, y 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, un er obligation to pay on demand, not the identical money received, but a sum equal in legal value.

ln s. The instructions asked of the court assume this. p. 502The 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 leceived in their general business, if they did use them, piim to any demand for the fulfilment of their undertaking. Sue use was in contemplation of’ the parties from the beginning. In Robinson v. Noble's Administrators* a promise to pay w Cincinnati at a certain time, “in the paper of the Miami Exporting Company, or its equivalent,” was held by tns court to impose upon the promisor only a liability to ma e good the damages sustained through his failure to pay at t e day, and that those damages were measured by the mar value of thé paper at the time when payment should ave been made. The promise was assimilated to an engage ment to deliver a certain quantity of flour, or any ot e commodity, on a given day. A loan for consumption to returned in kind contemplates a restoration not of the i tical thing loaned, but of a similar article equal in quan J’ and if no return be made, all that the lender can lequire the value of the thing which should have been retuine the time when the contract was broken. The value a time of the loan is not to be considered. Both Pal^ieS. the risk of appreciation or depreciation. Why sou a similar rule be applied to the present case? ug plaintiff’s to recover more than the damages they a tained from the breach of the contract? Ought they __

Hereupon Tweed filed a petition in the court below c a p. 507ing the 123 bales which Flanders, a deputy general agent, retained. The petition alleged that no part of the cotton which he had bought in and about Shreveport was captured or abandoned property, and that the United States had no right, title, or interest in the same, or any part thereof; that the 123 bales retained were worth $17,500; and that he Tweed, feared that Flanders would, pending the suit, dispose of and remove them from the jurisdiction of the court. It prayed tor a citation of Flanders, sequestration of the cotton until further orders, and that, after due proceedings, the cotton be redelivered. The citation was granted and the cotton sequestered, &c.

n was deposited in the warehouse at Jefferson, Texas, p. 508one Turnbull, then an agent to collect abandoned and captured property, published a notice for claimants of cotton to make oath of their ownership, and failing to do this he would seize it as captured property. One of the parties whose property was seized had no notice of the order, and his property was taken and held by Turnbull, and other property was seized by said Turn bull upon protest of the same kind; and the testimony generally conduced to prove these facts, and that in the opinion of the witness his seizures were oppressive, causeless, and for the purpose of extortion.”

. of p. 511bona fides in a particular case need not be questioned. The question is whether an allowance of such liberty to an agent may not open a door to fraud in general. Will the relation of principal and agent admit of such liberty? We think not.*

Selden, 256 ®an^^or<t’ 2 Equity Cases, Abridged; Moore v. Moore, 1 p. 512tiff showing that the cotton was raised by planters in an adjoining State, and that they continued to possess it until it was sent to market; that the cotton had never been captured by, or surrendered to our army; that none of it was the property of the Confederate States, nor had it ever been destined for their use.

Property of the kind, however, was seized by ano e party, to whose transactions it becomes necessary to a ver, in order to a full understanding of the present controversy. He, the said other party, published a notice for the c,aimaa of cotton to appear and make oath of theii owneis ip, ing that if they failed to do so he would seize it as captu property. Such property was seized by that party, c a’ to be an agent to collect captured and abandoned prop but the evidence introduced tended to prove that his s p. 513were causeless and oppressive. Some of the cotton seized under those circumstances, and which remained in the hands of the agents of the party making the seizures, the plaintiff admits he purchased, from the owners of the same, having been previously informed by a supervising treasury agent that no evidence had been produced to affect the claims of the owners, and that it was safe to make the purchases, and it appears that the cotton was shipped to New Orleans with his other shipments. All of these transactions took place while the other party to the written agreement was a supervising special agent, but he was soon after superseded, under t e instructions of the Treasury Department, and the defendant in the present suit was appointed in his place.

vo l ’ V°Ce8S of sequestration was accordingly issued p. 514by the court, and it appears that it was duly served and executed by the marshal.

caTne tej to p. 515the defendant to amend his answer, which he did by setting up, in a more formal manner, the defences mentioned in his preliminary exception and in his former answer. Evidence was introduced by both parties, and the jury, under the instinotions of the court, returned their verdict in favor of the plaintiff.

not sufficiently comprehensive, is always p. 516at liberty to ask that further and more explicit instructions may be given, and if he does not do so he is not entitled to claim a reversal of the judgment for any such supposed error.* Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point explained.f Where the court charge the jury correctly upon all the ingredients of the cause of action and upon all the matters of the defence, it is not error in the court to refuse to instruct as requested by either party, even though the proposition presented is correct as an abstract proposition.|

Tried, as the case was, by a jury, it was certainly prop that the court should submit the whole evi ence o _ determination ; and it is clear that the juiy by t en p. 517have affirmed every proposition involved in the instruction in favor of the plaintiff. Such being the fact, the rule is that where the instructions given to the jury are sufficient to present the whole controversy to their consideration, and the instructions are framed in clear and unambiguous terms, it is no cause for the reversal of the judgment to show that one or more of the prayers for instruction presented by the losing party, and not given by the court, were correct in the abstract, as the refusal of the court to give the instructions as requested under those circumstances could not work any injury to the party making the request, and therefore cannot be regarded as error.* What more the defendant could properly have it is difficult to see, as the court submitted every inquiry of fact involved in the instruction to the judgment of the jury, and they, having returned their verdict for the plaintiff, it follows that the theory of fact assumed in the instruction is established as true, unless a new trial is granted by the court which tried the cause, or by the direction of this court for error of law. Taken together, the charge and the verdict, as perfected by the judgment, afford a presumption that the theory of fact assumed in the instruction is true, unless the contrary is stated in the bill of exceptions, or it appears that there was no sufficient evidence to warrant the court in submitting the questions to the jury.f

ay v. Fry, 6 Porter (Indiana), 372; Day v. Ragoet, 14 Minnesota, 283. p. 518ting such a question to the jury as an independent instruction, and the exception is accordingly overruled.*

Throughout the several propositions of the defence, t e theory of fact is constantly interwoven that the defen . n held the cotton under color of the acts of Congress ielating to captured and abandoned property, but it is clear t at a party cannot be held to have acted under color or by vir of an act of Congress which did not confer any aut or y upon him, or any other person, to perform the act w ic in controversy.| Neither an officer nor an agent can } _ _ p. 519erly be said to have acted under color of a law which neither gave him nor any other person authority to do the act in question, nor can an officer be said to have acted under the authority of his office unless he has some appearance of right to it and is in possession and acting in that capacity, as the acts of a mere intruder or usurper of an office, without any colorable title, are undoubtedly wholly void both as to individuals and the public.* Whenever a person sued sets up a defence that he was an officer or an employe of the government acting under color of law, it plainly devolves upon him to show that the law which he invokes authorized the act in question to be done, and that he acted in good faith; but nothing of the kind is shown in this case. Instead of that he admits in his own testimony that he had no evidence at all to affect the cotton as captured or abandoned property.