Tarleton v. Southern Bank

PETERS, J. — There are only two questions arising in this case which have been discussed by the learned counsel for the parties at this bar. The first is as to the sufficiency of the consideration upon which the contract sued on is based. It was “ Confederate treasury notes.” Does such a consideration vitiate the contract ? Did it make it unlawful ? It is insisted by the appellant that it did not. It is contended that, on the principles settled in the case of Thorington v. Smith, decided in the Supreme Court of the United States at the December Term, in 1868, this is no longer a question of doubt. In that case, it does not seem to me that this question was involved. There, Thorington sold a tract of land to Smith, in 1864, and agreed to take in payment for the same a certain sum in “ Confederate treasury notes; ” and the point to be decided was, whether such a contract could be enforced in the courts of the United States ? The judgment of the court was that it could. 8 Wall. 1-6. In that case, the land was the consideration of the contract; it was the thing for which the maker of the note agreed to pay. Confederate treasury notes were only the medium of payment. In discussing the contract in that case, Chief Justice Chase declares that “ They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection.” 8 Wall, 12. Here, there were really no Confederate treasury hotes used in the contract, but only an agreement to receive them in the future. In the case at bar, it was quite otherwise. The transaction tended to give the unlawful currency circulation and credit. This aided directly in the purpose for which it had been issued ; that is, to “ promote the ends of the unlawful government.” I am therefore inclined to think, that to give it credit and circulation tended greatly to aid the Rebellion. This was clearly against the public policy. The very great anxiety of the rebel authorities to keep up the credit of this spurious currency shows how highly they estimated its value as an instrument in promoting the ends of their unlawful government. It is unnecessary to refer to the acts of the rebel legislatures to establish this, or 235 to the military orders of the rebel leaders : they are known of all men. Hale v. Huston, Sims & Co. 44 Ala. 134; Lawson v. Miller, 44 Ala. 616. My own opinion is, that such consideration is insufficient to support a legal contract. Ordin. No. 38 ; Pamphlet Acts 1868, p. 185. But the court is unwilling to express an opinion on this point in this case, and it is passed for the present. 2. The second question is one of less difficulty. The bill of exchange, on which this suit is founded, was drawn by the Southern Bank of Alabama, a corporation located and having its office for the transaction of its business in the city of Mobile, in this State, on the Louisiana State Bank, located and doing business in the city of New Orleans, in the State of Louisiana. The bill bears date August 26, 1862, and is drawn in favor of the order of A. Batre, payable on demand. It was indorsed by Batre to the plaintiff in the court below, who is the appellant in this court. At the time it was drawn, war existed between the people of the United States and the people of this State, and the city of New Orleans was in the occupancy of the government of the United States, and so continued until the restoration of peace, while Mobile was in the occupancy of the forces of the government (so-called) of the Confederate States of America. The drawing of such a bill of exchange was a mercantile transaction, by which the Southern Bank, the drawer, attempted to appropriate its funds to its use in the rebel territory, which were within the territory occupied by the army, and controlled by the government of the United States. This would be tantamount to an attempt to remove the funds of the Southern Bank of Alabama on deposit in the Louisiana State Bank, in territory controlled.by the United States, to the rebel territory. This would not be permissible. 8 Cranch, 155. At the time when this bill was drawn, all “ commercial intercourse ” was forbidden between the people of these two sections of the Union, by the proclamation of President Lincoln, issued on August 16, 1861, and which was authorized by Act of Congress, approved July 13, 1861. 12 U. S. Stats, at Large, p. 1262, Append.; Prize Cases, 2 Black, 635. The intercourse thus forbidden is total. “ The inhibition reaches every communication, direct or circuitous. All endeavors at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice has succeeded to legalize the trade, without the express permission of the government. Every relaxation of the rule tends to corrupt the allegiance of the citizen, and prevent the war from fulfilling its end.” “ The drawing of a bill of exchange by an alien enemy on a subject of the adverse country is an illegal and void contract, because it 236 is a communication and a contract.” 1 Kent, 67, 68, 69, and note a at p. 66. These principles are equally applicable to corporations as individuals, and to the war of the late insurrection and Rebellion, as to wars between independent and foreign nations. Billgery v. Branch & Sons, 8 Amer. Law Reg. New Series, p. 334, for the year 1869. In this latter case, the numerous authorities on this important question of legal inquiry will be found to be very thoroughly and learnedly discussed. The judgment of the court below is free from error, and it is therefore affirmed.