Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-20


| government, as the question has been diff
ferently settled by the people OF the State
acting in their sovereign capacity. Sec. s..
of the schedule Of the amended constitu-
lion provides that all laws, ordinances and
resolutions, as we'll ss all acts done in pnr.
| suance thereof under tie authority of the
usurped state government after the de-
p, clAred independence of the State of Ten.
nesaee, on and after the 9Th of Nav, 1861,
are unconstitutional, null and void froTa
the beginning. The constitutional amend
ments became part Of the constitution OF
the State, and the schedule annexed for all
purposes ssnght by the ratification, be
came equally binding on the courts, Cold,
2l4. By the schedule the said act was de-
clared to have been null and void from
the beginning, and it cannot be relied upon
es authorizing the Cashier Of the Bank
to receive Confederate treasury notes 10
| discharge OF the notes, 80 az 10 bind the
bank. Ii il insisted though, The act il
void, the illegal currency having been re-
ceiyed voluntarily and the notes delivered
up, and receipt executed against the note
in the hands of the attorney, il became an
executed contract, and the case falls within
the rule settled hy this court in the case Of
Henry st al, cs.Franklin ct al. 3CoId.
The determination of this question de-
pends upon the residence Of the parties at
the time the alleged payments were made,
and the receipt executed agaihst The note
and the notes delivered up at the time of
the payment.
The defendants resided within the terri
tory of which the Federal forces had per-
manent military occupation, and had held
from the first of January, 1863, to the close
of the war. The Cashier Of the bank, who
received the payment, at the time was re-
siding within the military lines of the
Rebel forces at Chattanooga. By the act of
Congress of 18th July, 1861, all CONNER
cial intercourse was prohibited between
the States declared 20 be in a state of insur-
rection and the citizens of other States and
other parts of States of the United States,
it was made unlawful and to remain unlaw-
fGl until such insurrection shall cease or
have been suppressed. The fifth section of
the act of July l3 1861, providing for the
collection of duties and other purposes, pro-
vided the President, by proclamation, may
declare the inhabitants of the States or any
section, or part of them, to be in state of
iuSnrrection against the United States. In
pursuance of this act, on the 10th of
August, 1861, the President issued a proc
lamation, declaring the inhabitants of Vir-
ginia, North Carolina, Tennessee and
Arkansas, and other States south of them,
TO be in a state OF insnrrection, except the
inhabitants of Virginia wesl of the ALLIE
ganies, and those parts of States maintain
ing a legal adhesion to the constitution
and Union, or from time to time oc-
eupIed and controlled by forces
of the United States engaged in dispensing
the insurgents. The Supreme Court of the
United States in the case of the Venice,
Wallace, 27S, after quoting the act Of July
18th, 1861, and the proclamation, says
This executive and legislative action re-
lated mainly to trade and commercial in
tercourse between the inhabitants loyal and
the inhabitants of the insurgent parts of
the country, but by excepting districts oc-
cupied and controlled by national troops
from the prohibition of trade, it indicated
the policy of the government not to regard
such district as in insurrection or their in
habitants subject to treatment as enemies.
Military occupa ION and control to work
this exception must be actual, that is to
say, not illusorg, not imperfect, not tran
sient, bat substantial, complete and
permanent; being such it draws af-
ter it the full measure of protection to
persons and property consistent with
necessary subiectiOns to military gov
ernment. The Federal forces having oc-
cupied and held the town OF Clarks-
Vile and territory of Montgomery
county, Tennessee, from the 1st of January,
1863, and until the close of the war, had
sHch permanent occupation and possession
OF the territory in which the defendants re-
sided, as TO bring it within the exception
provided by the proclamation of the Presi
dent Of the 10th of August, 1861, and by
the act of Congress all commercial inter
course was made unlawful with those re-
siding within the Rebel military lines. 1t
follows that the defendants at the time Of
the alleged payment and delivering up of
the notes, and the execution of the receipt
against the note in the hands of an attor-
ney residing within the military lines of
the territory, occupied and permanently
held by the national forces, we're prohibited
from holding any. commercial intercourse
with the inhabitants living within the mil
itary lines of the insurgents, and
the Cashier of the bank being at the time
Of the alleged payment a resident of the
insurreetionary district, the payment was
unlawful and in direct violation of the act
of Congress and violation of the laws of
war, and is not binding on the bank.
This case does not fall within the princi-
plies of an executed contract, az held by
this court in the case of Henly and others
rs. Franklin and Others, Sd Cold, 473.
We think there is no error in the decree of
the Chancellor, and it will be affirmed.
SHACKELFoRD, Judge.