The home journal. (Winchester, Tenn.) 1858-188?, 1872-02-08
AN IMPORTANT LAW CASE.
The United States Circuit and Dis
tricI Courts. Trigr ,Ilttlge

states, Slttlng at Memphis, TenneS-
see, on Saturday the 9th day of jan
uary, 1872. Hon. Connally F. Trigg,
United States District Judge, pre-
siding. -...
James II. Mosby 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 Mem
phis, and having S5,260 in currency,
consisting of Confederate treasury
notes, State Bank ofTennessee 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,
banker in Memphis. An arrange
uent was soon made by which the
defendant agreed to take the cur
rcNcy Of the plaintiff and invest it
for him if he could, in sterling ex-
change, and a receipt was given to
that effect. The defendant was not
successful in purchasing the curren-
cy before the Federal forces occupied
the city Of Memphis, aud in fact no
such purchase was ever made, the
defendant all the time retaining the
money deposited, or using it in the
course of his business. The defend
ant not accounting to plaintiff for
the amount 50 deposited with aim,
this suit was instituted to compel
the defendant to pay over TO the
plaintiff tho amount or its equiVa-
| lent.
The declaration was in assumpsit
with special counts on the receipt
which was given by defendant, and
also a general count in indebatibus
assulnpsit for money had and re-
ceiyed.
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 instruction and 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, l76l, and
the proclamation Of the President of
the United States issued in pursu-
anco thercoi, On the 10th day of
August, 1861, the Senate OF Kentucy
was not declared in insurrection, but
that the State of Tennessee was so
declared.
In this state Of the facts, the plain
tiGf being a citizen Of the State of
Kentucky, and the defendant citi-
zen of the State of Tennessee, they
stood in the relation of public enc
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 wonld be unlawful and
could not be enforced in ths 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 insurcectionists had
Withdrawn from the State of Ken
, tucky, leaving the plaintiff within
the military occupation of the Fed
cral forces, then at the same point Of
time wbun such last occupation oo-
, CURED, the plaintiff would be restored
, to his former relations to the Fed
s oral government, and he and the de-
: fondant would resume their previous
& attitude of public enemies, and could
: not carry on any commercial trans
l action.
0 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
d the iusurrectionary forces, then and
e for that time, and during said occu-
V patton, the plaintiff and defendant
il were under the same jurisdiction,
l. and for the time their enemy relations
Il were suspended, and in lhis state of
.o facts the plaintiff and defendant
II might make a contract IN relation to
ct the subject matter of the contract,
d and in this view of the case, the plain
81 tiff being capable of making the con-
II tract. IL would not be illegal and ia
Dt violation of the said act OF Congress
III and tho proclamation of the Preai'
w dent made in pursuan 20 of tho same
e. And the court further charged the
n iury that in either event stated ir
1t the preceding instructions, If they
re were satisfied that the plaintiff pu'
81! into the hands of the defendant tbt
ot sum of money claimed by him fol
IL the purpose of investing it in ster
IS. ling exchange, and that the defend
We ant never did make such an invest
IL no ment, but continued to hold th'
~ n, funds so deposited with him, tina
80 then the defendant became an'
was. in relation to the plaintiff, as
od mere trustee or agent for the purpos
rn of investing the funds, and maintain
m. ed that relation as long as he retaine
,s the funds placed in his hands. An
sat no purchase of exchange haVin
- been in fact made, said funds remain
OF ed and must be considered as bein
We held for the nse of the plaintiff, an
lat he would be entitled to verdict fo
we tho same or their equivalent in valu
e?' and if the jury find the facts
es, above, they will return a We!
he dict for the equivalent of func
we deposited as compared with gold
ssh the time when defendant ought
Ich have made the investment in ste
he ling exchange, which should be sue
the reasonable time as the jury shoul
md deem D, oper in view fthe evidenc
no. The Jury may find for the plaintiff, a
ars low interest upon the amount a
I'LL certaiued to be due from that tin