
    No. 996.
    
      Mandeville & Montgomery v. Bank of Louisiana.
    Plaintiff deposited moneys in the Bank of Louisiana. The bank and all its assets were afterwards seized, and taken possession of by order of the Commanding General of the United Statos Army, all the assets were turned over by the directors of the bank, including the deposit, to the quartermaster of the department. Plaintiff, a depositor, brings suit against tho bank for the amount of the deposits still to his credit. The bank sets up in defence that these deposits have been seized and taken possession of by order of the Commanding General, and the bank is not again liable for their payment: Held—'That the bank, having paid out all these deposits under an authority they had no right to question nor power to resist, they are no longer liable to’ pay them to the depositors; that obedience to the military order was full protection to the bank.
    A PPEAL from the Sixth District Court of New Orleans, Duplanlier, J.
    P. H. Morgan and J. H. New, for plaintiffs and appellants.
    
      Miles Taylor, for defendant and appellee.
    Reporter.—In order to give a correct report of this case, it is necessary to publish the written opinion of the District Judge, in the case of JE. W. Dorr, Administrator, v. The Banlc of Louisiana, No. 17,163, on the docket, referred to by the Supreme Court for their reasons for judgment in this case. The opinion of the Judge a quo is as follows:
    
      “The plaintiff in this ease, acting in the capacity of administrator of the succession of the late J. A. Simpson, claims from the Bank of Louisiana the sum of twenty-six thousand six hundred and ten dollars, which he shows had been deposited in said bank to the credit of the deceased, in the years 1861 and 1862.
    “The defence set up against the demand is that the bank is not liable to the plaintiff for the sum claimed, or for any part thereof, owing to the fact that under an order issued by the Commanding General of this department on the 17th of August, 1863, the several banks and banking corporations in this city were required to pay over, without delay, to Col. S. B. Holabird, Chief Quartermaster, or to such officer of the quartermaster department as the colonel might designate, all moneys in their possession belonging to or standing upon 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 shall have been or may after the issuance of the order, be convicted of rendering any aid or comfort to the enemies of the United States, And that in compliance with said order, the aforesaid sum of §26,610, then standing in the books of the bank to the credit of the deceased, was paid over to J. W. McClure, acting quartermaster, who was the officer delegated by Colonel Holabird, to receive the moneys referred to in the Commanding General’s order, and who was at the same time one of the commissioners in charge of the effects of the bank, as liquidators under military appointment.
    “ The facts of the case are quite simple; they are such as represented by the pleadings, with this additional evidence, that J. A. Simpson, who died in December, 1863, was, at the time of his déath, between sixty-three and sixty-seven years of age, and a resident of the State of Alabama, to which he had moved in the early part of 1863, from the State of Florida; that up to the day of his death, he was not employed in the armies of the so-called Confederate States; that he occupied no civil position whatever under the Confederate Government, and that he was not known to be otherwise than a loyal citizen of the United States.
    “Under these state of facts, the question to be decided is this: Can the bank be held liable to the plaintiff as the administrator of Simpson’s estate for the moneys which this latter had to his credit in the books of the bank, notwithstanding the fact that the bank has already paid over these moneys to the Acting-Quartermaster McClure, under the military order ?
    “ On the part of the plaintiff, it is contended that when the money was paid to McClure, the relation in which Simpson and the bank stood towards each other was not that of depositor and depositary, but simply that of creditor and debtor; that the payment transferred no property of Simpson to McClure, but turned over to him the property of the bank; and hence, it is argued that the bank did not by the fact of the payment cease to be the debtor of the plaintiff, but still owes him, or rather his estate the amount claimed, notwithstanding the payment.
    ‘ ‘It is evident that the real position, in which the contending parties stood towards each other when the payment was made to McClure was that of creditor and debtor. Upon this question there oan be no reasonable doubt; the deposit by Simpson with the bank, was not a special but an ordinary deposit; the bank had then the right to use his money; it became its own property, and the bank became at the moment of the deposit, the debtor of Simpson to the extent of the sum deposited. That doctrine is recognized in the cases of Matthews, Finlay <& Co. v. Their Creditors, 10 An. 323; and Simons v. Bean, 10 An. 346, but, admitting the fact that Simpson was the creditor of the bank when McClure required of the latter a compliance with the order of the Commanding General, I am at a loss to conceive by what principle of law or of equity, Simpson could be justified in claiming to be still a creditor of the bank, notwithstanding tho payment to McClure. The order of the Major-General, requiring the banks and banking corporations in this city to pay over to the chief quar; termaster all moneys in their books, standing to the credit of the persons referred to in the order, was, in all respects, equivalent to a garnishment in the hand of the banks of all claims for money growing out of deposits which the parties named in the order held against the banks and banking corporations, and all payments made under the order was compulsory, and must necessarily operate a discharge in favor of the banks as would a payment made by a garnishee to a plaintiff in a regular garnishment process. What was seized upon, confiscated or sequestrated, and takeu possession of by McClure under the Major-General’s order, was not Hie identical moneys which had originally been deposited by Simpson with the bank, and which at the very moment of the deposit became the property of the bank, nor was it the property, effects or moneys of the bank, but the property of Simpson himself; that is, his claim against the bank for moneys deposited.
    “Henee, it follows that his claim being the thing confiscated, and taken by McClure from the bank, all his rights under it passed -over to McClure under the order of the Major-General, and the payment made to McClure must necessarily have released the bank.
    “But it is insisted that the order issued by the Commanding General on the 17th August, 1863, was unauthorized by law; that it did not reach Simpson, because he was not in the category of those persons contemplated by the Major-General, which is a fact that could have easily been shown by the bank; that for these reasons the bank should have resisted the enforcement of the order, and that its neglect to do so has worked upon the plaintiff an injury for which tho bank should be held responsible.
    “Bo far as the legality of the order is concerned is of no consequence here, for the bank had no right to question it; no more so than it had the right to put at issue its propriety, (Foster & Elam v. Milsoe, 2 Peters, 253,} but even if it did possess that right, it certainly had not the power to enforce the right, and it cannot, therefore, be accused of neglect for not doing what it had no power or means to do. Nor was it the province of the bank, or within its power, to determine whether or not the plaintiff was effected by the order; the determination of that question was evidently left with the military, for they alone had the means of ascertaining the status of every one. But, be that as it may, and conceding that the bank may be accused of gross negligence by the plaintiff; that negligence would perhaps authorize a judgment against it in a suit for damages, but certainly not in this suit where no damages are claimed.
    “But, furthermore, another circumstance in the case strongly militates in favor of the defendant. It is shown that when McClure received the amount of money standing to the credit of Simpson in the books of the bank, the latter was not under the administration of the directors. A commission of liquidators, of whom McClure was one, had taken possession of it; these had been appointed by the military, consequently’their act in paying over the money to McClure was not, properly speaking, the act of the bank, but was the act of the military, for which it is neither just-nor equitable that the bank should be made to suffer.”
   Labauve, J.

The plaintiffs claim of the defendant the sum of $13,963 64, which they allege they had deposited in the Bank of Louisiana ; that the same has never been paid to them, although amicably demanded.

. The answer contains a general denial, and further, that in virtue of divers orders issued by Major-General Banks, and particularly one directed to Capt. T. M. McClure, to take possession of the balances of persons who left the city on its occupation by the Union' troops, and have not returned, and hold them for the government, subject to any just claims that be made against them, the said sum of $13,963 64 was withdrawn from the bank by said T. W. McClure, and that said bank is not responsible.

The District Court gave judgment for defendant, and the plaintiffs appealed. ,. .

There is no dispute about the facts.

. The judge a quo, in giving judgment, said: .

“ This case being identical, in every respect, with that of E. W. Dorr, Executor, v. The Bank of Louisiana, No. 17,163, of the docket of this Court, the reasons assigned for a judgment in that case, must apply to this ease. ”

We have carefully examined that opinion, which is found in the record, and we fully concur with our learned brother of the District Court, and for the reasons by him assigned, the judgment appealed from must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.  