The Columbia herald. [volume] (Columbia, Tenn.) 1850-1873, 1872-01-26
An IMPORTANT Law CASE.
The United States Circuit and DIS
triet Courts, Trieg Judge.

The United States Circuit and DIS
triet Courts. Triss Judge.
In the Circuit court of the United
States, sitting at Memphis, Tennes-
see, on Saturday the 9th day of JAN
uary, 1872, Hon. Connally F. Trigg,
United States District Judge, pre-
siding.
James 81. Mostly VS.. Issaac B. Kirt-
land.
The facts in the case are substan-
tally as follows From the I7th to
the 22d day of March, 1862, the
plaintiff, who resided in the State of
KENTUCKY, came to the city of Men,
phis, and having S., ,260 in currency,
consisting of Confederate treasury
notes. State Bank of Tennessee notes,
North Carolina, South Carolina and
State of Georgia Bank notes, was de-
sirous of converting them into ster-
ling exchange. Through friend, he
was introduced to the defendant, a
banker in Memphis. An arrange
ment was soon made by which the
defendant agreed to take the cur
reney of the plaintiff and invest it
for hinl if he could, in sterling ex-
change, and receiptwas given to
that effect. The defendant was not
successful in purchasing the curren-
cy before the Federal forces occupied
the city of Memphis. and in fact no
such purchase was ever made, the
defendant all the time retaining the
money deposited, or using 1t in the
course of his business. The defend
ant not accounting to plaintiff for
the amount SO deposited with him,
this suit was instituted to compel
the defendant to pay over to the
plaintiff the amount or its equiva-
lent.
The declaration was in assumpsit
with special counts on the receipt
which was given by defendant, and
also general count in indebatibus
assumpsit for money had and re-
ceived.
The effects of the war upon the
country, and the act of Congress of
18th of July, 1861, with the Presi-
dents proclamation issued in pursu-
ance thereof, inhibiting all CONNER
cial intercourse between the citizens
OF the States in insSsTection aud the
citizens of the rest Of the United
States, was mainly relied upon by
the defense to be relieved from the
payment of the money. The court, on
consideration of the evidence, charg-
ed the jury as follows:
That by the act of July, 1761, and
the proclamation of the President of
the United States issued in pursu-
ance thereof, on the 10Th day of
August, 1861, the Senate Of Kentucy
was not declared in insurrection, but
that the State of Tennessee was 80
declared.
In this state of the facts, the plain
tif being a citizen of the State of
Kentucky, and the defendant a citi-
zen of the State of Tennessee, they
stood. in the relation Of public ene-
mics, and were prohibited by law
from having any commercial inter
course with each other; and if in
this state of the case the plaintiff
and defendant negotiated for the
purchase, by the defendant for the
plaintiff of sterling exchange, such
contract would be unlawful and
could not be enforced in tbs courts
Of the United States.
The court further instructed the
jury that if the condition of the two
belligerents was not as stated in the
preceding instruction, but that be-
fore, or at the contract between the
plaintiff and defendant was made, the
forces of the insur-ectionists had
Withdrawn from the State Of Ken
tucky, leaving the plaintiff within
the military occupation Of the Fed
eral forces, then at the same point of
time when such last occupation oC-
Cured, the plaintiff would be restored
TO his former relations to the Fed
eral government, and he and the de-
fendant would resume their previous
attitude of public enemies, and could
not carry on any commercial trans
action.
The court further instructed the
jury that if the Confederate forces
at the time of the contract held and
occupied that portion Of Kentucky
in which plaintiff resided, and that
plaintiff by such occupation was
within the lines and jurisdiction Of
the insurrectionary forces, then and
for that time, and during said occu-
patton, the plaintiff and defendant
were under tho same jurisdiction,
and for the time their enemy relations
we're suspended, and in This state of
facts the plaintiff and defendant
might make a contract In relation to
the subject matter of the contract,
and in this view of the case, the plain
tiff being capable of making the con-
tract, it would not be Illegal and in
violation of the said act of Congress
and the proclamation of the Presi-
dent made in pursuan ;e of the same.
And the court further charged the
jury that in either event stated in
the preceding instructions, if they
were satisfied that the plaintiff put
into The hands of the defendant the
sum Of money claimed by him for
the purpose Of investing it in ster-
ling exchange, and that the defend
ant never did make such an invest
ment, but continued to hold the
funds 50 deposited with him, that
then the defendant became and
was, in relation to the plaintiff, as
mere trustee or agent for the purpose
of investing the funds, and maintain
ed that relation as long as he retained
the funds placed i'll his hands. And
no purchase of exchange having
been in fact made, said funds remain
led and must be considered as being
held for the use of the plaintiff, and
he would be entitled to verdict for
tho same or their equivalentfn IN value,
and if the jury find the facts as
above, they will return a ver-
dict for the equivalent of funds
deposited as compared with gold at
the time when defendant ought to
have made the investment in ster-
ling exchange, which should be such
reasonable time as the jury should
deem proper in view of the evidence.
The jury may find for the plaintiff, al
low interest upon the amount as
certained to be due from that time
until the present if, in their opinion
of the case, any interest should be
allowed.
The defendants took an appeal to
the United States Supreme Court.
Dwarf Pear Trees.
The testimony of Southern growers
seams IN he uuiformly in their favor.