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, 2 Wall. 258, 17 L. ed. 866, "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.

itary authorities of the United States, then in military possession of New Orleans. It appeared that on the 17th of August, 1863, by command of Major-General Banks, an order was issued 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 moneys 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 defendants, as the evidence tended to show, on the 10th day of September, 1863, paid to the acting quartermaster, the balance standing to the plaintiff's credit on their books, being the whole balance due. The payment was made in confederate notes, and the quartermaster accepted them injection to military government. We do not asdischarge of the balance. Whether this was a Satisfaction of the claim of the plaintiff's 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 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

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 sub

sert that anything in General Butler's procla mation exempted property within the occupied district from liability to confiscation *as [*496 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 proc lamation 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 confisca tion could be made. They designated governinent 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

posed 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."

declaring that private property belonging to | done before the motion for a new trial was discertain 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 497*] may compel private debtors to pay 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 in Phillimore on International Law, Vol. 3, part 12, ch. 4, to which we have been referred. But the principle has no applicability to debts not due to the conquered state. Neither Phillimore nor Bynkershoek, 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.

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 *for putting its issues of con- [499* federate 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

It is further assigned for error by the defend-up the balance of account standing to their credants, that the court allowed the plaintiffs to it. It assumes only that they had, as such withdraw a remittitur entered by them of part agents, put some of the issues of the governof a verdict obtained on the former trial of the ment into circulation, at some time, in some case. The only objection made in the court be- transaction with some person, not necessarily low to the allowance was, that the remittitur the defendants. That assumption, had it been was an acknowledgment of record that the sustained by the finding of the jury, was wholly amount remitted was not due. There had been impertinent, and therefore the only relevant a former trial in which the plaintiffs had ob- question presented by the point was, whether tained judgment for $113,296.01, with five per confederate treasury notes had and received by cent interest from Nov. 25th, 1863. This was the defendants for the use of the plaintiffs were a larger amount of interest than the petition of a sufficient consideration for a promise, express the plaintiffs had claimed, and they entered on or implied, to pay anything. After the decision the judgment a remittitur of the excess, ex-in Thorington v. Smith, 8 Wall. 1, 19 L. ed. 361, pressly reserving their rights to the balance of the judgment. Subsequently a new trial was 498 granted, and it is now contended *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 Nor should the court have charged that, in been set aside and a new trial had not been the circumstances of this case, no action would granted. Bowden v. Horne, 7 Bing. 716. But lie for the proceeds of the sales of Confederate such cannot be its operation now. If it takes bonds which had been sent by the plaintiffs to effect at all it must in its entirety, and the the defendants for sale, and which had been plaintiffs must hold their first judgment for the sold by them, though the proceeds had been carbalance unremitted. As that judgment no long-ried to the credit of the plaintiffs and made a er 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.

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.

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 Another error assigned by the defendants is, been illegal. But when the illegal transaction that the court ordered execution to issue on the has been consummated; when no court has been judgment first recovered for the sum of $26.- called upon to give aid to it; when the proceeds 752.63, without prejudice to the plaintiffs' of the sale have been actually received, and rerights to recover the balance, that amount hav-ceived in that which the law recognizes as having been admitted to be due, and that this was ing had value; and when they have been carried

to the credit of the plaintiffs,--the case is dif- |ly a bank becomes a debtor to its depositor by ferent. The court is there not asked to enforce its receipt of money deposited by him, and that 500*] an *illegal contract. The plaintiffs do money paid into a bank ceases to be the money not require the aid of any illegal transaction to of the depositor and becomes the money of the establish their case. It is enough that the de- bank which it may use, returning an equivalent fendants have in hand a thing of value that be- when demanded, by paying a similar sum to longs to them. Some of the authorities show that deposited. Such is undoubtedly the nature that, though an illegal contract will not be ex- of the contract between a depositor and his ecuted, yet, when it has been executed by the banker. So, also, a collecting bank ordinarily parties themselves, and the illegal object of it becomes the owner of money collected by it for has been accomplished, the money or thing its correspondent and, consequently, a debtor which was the price of it may be a legal consid- for the amount collected, under obligation to eration between the parties for a promise, ex- pay on demand, not the identical money repress or implied, and the court will not unravel ceived, but a sum equal in legal value. the transaction to discover its origin. Thus, in But it is to be observed this is the rule where Faikney v. Reynous, 4 Burr. 2069, a plaintiff money has been deposited, or collected, and was allowed to recover in an action on a when there has been no contract or understandbond given by a partner to his copartnering that a different rule should prevail. The for differences paid in a stock-jobbing trans- circumstances of the present case are peculiar. action prohibited by act of Parliament. It seems to have been conceded in the court beThis was the case of an express agree-low that the deposits were made in confederate ment to pay a debt which could not have currency, and that the collections were made been recovered by the firm. Petrie v. Hannay, in like currency with the assent of the plain3 Term. 419, was a similar case, except that the liffs. The instructions asked of the court aspartner plaintiff had paid the differences by a sume this. *The Union Bank then be- [*502 bill on which there had been a recovery against came the agent of the plaintiffs to receive and him, and his action against his copartner for to collect, not money, but confederate notes, or contribution was sustained. This was an action promises, and the obligation it assumed was to on an implied promise. Ex parte Bulmer, 13 pay confederate notes when they should be deVes. 316, goes much farther, and perhaps far-manded. The subject of the contract was a comther than can now be sustained. We are aware | modity, not money, and there was no default in that Faikney v. Reynous and Petrie v. Hannay the Union Bank until a demand was made and have been doubted, if not overruled, in England, but the doctrine they assert has been approved by this court. Armstrong v. Toler, 11 Wheat. 258; McBlair v. Gibbes, 17 How. 236, 15 L. ed. 134; Brooks v. Martin, 2 Wall. 70, 17 L. ed. 732. Lestapies v. Ingraham, 5 Pa. 71, is full to the same effect. We think, therefore, the court was not in error in refusing to affirm the defendant's points. Farmer v. Russell, 1 Bos. & P. 296.

No more need be said respecting the exceptions taken and errors assigned by the defendants below. None of them are sustained.

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 fulfilment of their undertaking. Such use was in contemplation of the parties from the beginning. In RobA single assignment of error made by the inson v. Noble's Administrators, 8 Pet. 181, a plaintiff's below remains to be considered. At promise to pay in Cincinnati at a certain time, the trial they asked for the following instruc- "in the paper of the Miami Exporting Company, tions: If the jury should find from the evidence or its equivalent," was held by this court to im501*] that the defendants received confeder- pose upon the promisor only a liability to make ate currency on behalf of the plaintiffs, and en- good the damages sustained through his failure tered it to the credit of the plaintiffs on the to pay at the day, and that those damages were books of the bank, and used it in their general measured by the market value of the paper at business, the defendants thereby became the the time when payment should have been made. debtors of the plaintiffs, and that the measure The promise was assimilated to an engageof the indebtedness was the value of confederate ment to deliver a certain quantity of flour, or currency in the lawful money of the United any other commodity, on a given day. A loan States at the time the credit was entered and for consumption to be returned in kind contemthe collections were made. This instruction the plates a restoration not of the identical thing court declined giving, but in lieu thereof loaned, but of a similar article equal in quanticharged the jury that the measure of indebted-ty, and if no return be made, all that the lender ness 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 general

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 placed in a better position than [*503 that they would occupy if the defendants had paid them the right quantity of confederate

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.

notes when they were demanded? We think not. | thorities it ought not to be compelled to pay it Clearly, if the notes had appreciated after they were received by the defendants, and before the demand was made, the plaintiff's 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.

In my judgment, such a disposition of the case would better accord with principles of international law and the mutual rights and rela tions of all the parties concerned.

THOMAS D. MARSHALL, Appt.,

v.

of Nathan C. Smith.

(See S. C. 16 Wall. 551-560.)

Improper bankruptcy order-injunction of→ landlord's lien for rent-action by-damages.

This case differs very materially from Marine Bank v. Fulton Bank, 2 Wall. 252, 17 L. ed. 785. 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 sub- HENRY KNOX and E. E. Norton, Assignees ject 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, 5 Wall. 663, 18 L. ed. 704. 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.

The judgment is affirmed.

504*] *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

1. The district court has no jurisdiction to compel a lessor and the sheriff, by a rule in bankruptcy, to deliver up possession to the assignee in bankruptcy of goods which were in the custody court, and held for the rent of the lessor; neither the sheriff nor the lessor being a party to the proceedings in bankruptcy.

of the sheriff under a writ of seizure from a state

to review and enjoin such proceedings.

2. The circuit court had jurisdiction of a bill

3. The lessor and the sheriff had the right, under the law of Louisiana giving a lien for rent, to the possession of goods for the payment of the rent, which had been seized for that purpose before the proceedings in bankruptcy, and the assignee in bankruptcy could not take them from their possession.

4. Where the goods have been sold by the assignee, the lessor may recover of him the full value of the goods, clear of all expenses, whether the assignees realized that value or not (limited by the amount of rent which he is entitled to be paid), and his taxable costs.

[No. 191.]

Submitted Mar. 21, 1873. Decided Apr. 28, 1873.

Orleans had been secured, required debtors in APPEAL from the Circuit Court of the Unit

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.

ed States for the District of Louisiana. The history and facts of the case are fully stated by the court.

Messrs. George W. Race and E. T. Merrick, for plaintiff in error:

United States, Apr. 29, 1868, on the filing of The question is: had the circuit court of the the bill, jurisdiction of the case? If it had, we lay down, as undeniable propositions, that the that jurisdiction which was vested; that this defendants could not, with a high hand, defeat court, after the jurisdiction vested, will take suitors, without sending them to another juriscare to see complete justice done its rightfu! diction for redress. Were it otherwise, it would have an imperfect jurisdiction which any suitor might defeat.

of Louisiana, and not as lessee at common law. It is a maxim of the civil law that the landlord possesses by his tenants.

To consider the question, then, we must exby us act, if any wrong was done, the gov-amine the complainant's rights, under the laws ernment 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 au-' 606.

Civ. Code, 3396; Arick v. Walsh, 23 La Ann.

Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298; Robbins v. Chicago, 4 Wall. 657, 18 L. ed. 427.

which might occur "by reason of the neglect | contractor; and although the plaintiff might of its employees in the premises;" that is, by have sustained an action against the city of St. reason of the neglect of its employees to keep Paul, it is his right to seek his remedy against its excavation properly guarded. The object of the party who created the nuisance." the provision was to bind the plaintiff in error to do, in respect to the public streets, what, as between the city and the public, would be primarily the duty of the city to do. The only change it made between the city and the plaintiff in error, was to give to the city a contract right to hold the plaintiff in error for any damages it might be compelled to pay by reason of the existence of the excavations in the street. In Blake v. Ferris, 5 N. Y. 48, there was a contract between the city and the defendant, broader in its terms than that in the case at bar, and it was there held that, however beneficial it might be to the city, it could not inure to the benefit of the plaintiff in that action, nor strengthen his right to recover against the defendant.

Mr. M. Lamprey, for defendant in error: The effect of section 6 of the ordinance, which is both an agreement with the public and a law, is to make the company liable, when injury results from negligence of an employee, whether such employee is a contractor or workman. The company agrees to protect all persons against damages by means of excavations; to keep the excavations properly guarded; to become responsible for all damages; and not to unnecessarily obstruct the streets. It cannot rid itself of the primary liability imposed by this ordinance by letting the work to a contractor. The liability exists, no matter how the work is done. The contractor is an employee of the company, within the meaning of the section.

This alone is a sufficient answer to the exceptions in the record, based upon the testimony that this work was being done by a contractor. The case of Storrs v. Utica, 17 N. Y. 104, is in point, and the reasoning of the court, on pp. 108, 109, seems particularly applicable to this case. Blake v. Ferris, 5 N. Y. 48, is reviewed, and the doctrine that the city is not liable for injuries caused by negligence in the improvement of streets, because it has employed a contractor to do the work, is distinctly overruled. The expression in Blake v. Ferris (pp. 51, 52), that a permission, similar in its terms to the ordinance pleaded in the case at bar, is only for the benefit of the city, and does not strengthen the right of the individual to recover, is a mere dictum, loosely taken for granted. That does not seem to have been argued in the case. sides, the persons who did the work in question in that case, did it under a permit from the city authorities. Between them and the city this might well have been claimed to be merely a contract benefiting no one but the parties who made it. But in the case at bar, the Water Company proceeded under a law which imposed upon it the very liability which we seek to enforce.

The obstructions on St. Peter street were manifestly a nuisance. The work was a lawful undertaking, unlawfully performed. The ordinance made it lawful for the company to excavate the street, but it also required the company to keep its work guarded day and night, and also prohibited the company from unnecessarily obstructing the street. If the company violated these provisions of law, it became a trespasser ab initio upon the street, and its work necessarily a nuisance. Whether the company did this work by contractors or day laborers, its liability is the same in such a case as

this.

The author of the nuisance is directly liable to the person injured, or is liable over to the corporation.

Milford v. Holbrook, 9 Allen, 17; Wood v. Mears, 12 Ind. 515; Ball v. Armstrong, 10 Ind. 181; Congreve v. Smith, 18 N. Y. 79, 84; Littleton v. Richardson, 32 N. H. 59; Clark v. Fry, 8 Ohio St. 359; Bush v. Johnston, 23 Pa. 209.

This liability exists independently of the ordinance. If the ordinance is laid altogether out of the case, the right of action of the plaintiff still exists by virtue of this principle.

Mr. Justice Clifford delivered the opinion of the court:

Injuries of a physical nature were received by the plaintiff *through an obstruction [*571 in one of the public streets of the city of St. Paul, occasioned, as he alleges, by an employee of the corporation defendants, for whose acts they are responsible, and he instituted the present suit to recover compensation for those injuries. Service was made, and the defendants appeared, and the parties went to trial, and the verdict and judgment were for the plaintiff; and the defendants excepted and sued out this writ of error.

Evidence was introduced by the plaintiff tending to show that where the accident occurred was a public street of the city; that the defendants entered into an engagement with the authorities of the city to make the necessary excavations in the streets, and to lay therein suitBe-able pipes and complete the work as stipulated in a certain contract, to introduce a supply of water into the city for the use of the inhabitants, and that their employee or contractor was at work at the time making the excavations and laying the pipes; that the excavations in the street where the plaintiff was injured extended from the intersection of Eighth street to the intersection of Ninth street, and that the excavation, with the embankments made on the sides of the same by throwing out the earth, occupied the greater part of the width of the street, leaving on the east side little more than a

The circuit court was correct in its charge that This action is brought upon the principle which is settled, at least in the Federal courts, that when a person, company or corporation included, is engaged in a work, in the ordinary doing of which a nuisance necessarily occurs, the person is liable for any injury that may result to third parties from carelessness or negligence, although the work may be done by a

passageway of sufficient width for a one-horse carriage; that in making the excavation the workmen found it necessary to drill and blast, employing the steam drill for drilling, and blasting, as usual, with gunpowder; that the engine which propelled the drill was 3 feet