¶1Same Case. — Application eoe a Re-heabing,
¶2May it please your honors : The plaintiff and appellee, Schmidt, respectfully asks for a re-hearing- in this case.
¶3The plaintiff alleged, on the 2d day of June, 1864, that his balance of account in Jacob Barker’s bank was @400, and that the same was payable to him in legal tender notes..
¶4The relations between a banker and depositor are those of simple debtor and creditor, and the acts of Congress make treasury notes a “legal tender in payment of debts.” Therefore, Barker, he said, owed him @400, in treasury notes, which was true, if Barkér owed him anything at all.
¶5The plaintiff also averred that recently, i. e. with regard to the filing of petition, 2d June, 1864, Barker had, in striking the balance of his deposit account, wrongfully; illegally, and without the consent of petitioner, stated this to be a balance of account in Confederate notes, which was *267false, as tiie balance was simply, as appears by tlie book itself, one of “dollars,” for which the United States treasury notes were a legal tender.
¶6In answer to this, Barker says that plaintiff deposited with him the nominal amount of §1,350, in “Confederate notes, under a special contract to receive back the same description of paper to this is added the averments of many different agreements, on the part of plaintiff, to receive “Confederate notes” for his debt.
¶7What was the proof in this case ?
¶8The defendant offered no proof at all. All the averments of his answer are therefore unsupported by evidence.
¶9The circumstance that Barker annexes to and deposits with his answer certain four one-hundred-dollar Confederate notes, is of no value against •the plaintiff', because those notes are not proved to be what plaintiff deposited. These were not offered in evidence on the trial of the cause in •the court below; there was no evidence of any kind offered there in regard to them, and the Supreme court has no power to look at them at -all, as instruments of proof to make out the defendant’s case. For all purposes, they must be legally considered as not existing. They were filed by the defendant in the court below with his answer, but the record is destitute of all evidence about them; how can this court, then, allude to them at all ? How does this court learn that these were the notes which plaintiff deposited with defendant ?
¶10Plaintiff has not admitted it. The defendant has not proved it. How, then, can this court take it for a fact.
¶11Would not the case be a hard one for plaintiff' if all the allegations-defendants choose to put in their answers are to be taken as true, without proof ?
¶12The bank book of plaintiff does not say that the deposits were made in Confederate notes, but does say they were made “in cash.” The memorandum at the foot of the account, defendant states to have been made in 1864, without his consent.
¶13This is his admission, with regard to the entry, and there is no other proof in the record about it. His admission can only legally be taken as he makes it: it is, that he did not consent to the balance being struck payable in Confederate notes; that is all ho admits. Why should this court take it for granted, in the absence of all proof on the other side, that he consented to a balance in Confederate notes, in May, 1864, two years after the circulation had been forbidden by the highest law of the department (State), and to him they were absolutely worthless. Nor is there any proof that the plaintiff deposited Confederate notes with defendant ; the deposits are represented in the bank books as “cash.” It is true that a memorandum above the deposit entries saying, that “the amounts are to be drawn in Confederate currency but, at that time, January 1862, the defendant may Kavo considered this as a method of showing his devotion to the sacred causo of liberty and independence, in the fashionable phrase of that day. At that time, too, the court know, as a matter of history, that the notes of the banks of New Orleans, and those issued by the city corporation, wore in general circulation; so that it cannot be presumed, in tho absence, of proof, that the deposits were made in Cou-federate notes.
¶14*268Let us now suppose, in the absence of proof on the point, and for the sake of argument, that the deposits were made in Confederate notes, “the treasonable issue of rebels in arms agiiinsi the United States” (a style of designation which is apparently attractive), what then ? They are received and entered on plaintiff’s pass book as “cash” in dollars. What was the effect of such an entry in plaintiff’s book ? Why, to make him a' creditor of defendant for so many dollars! not the very dollars, recollect, which plaintiff deposited; for there is no question here really of the contract of deposit, but of the contract of loans for consumption.
¶15The law governing their relations is, therefore, that of the Louisiana Code, Art. 2882. “By the effect of this loan the borrower becomes the owner <ff the thing lent, and if it be astrayod, in whatever manner the same may have happened, the loss is on his account. ”
¶16If in this case the loan was made in Confederate notes, which we admit argumentó gratia, then, these having been destroyed, i. e. rendered worthless by the collapse of the rebellion, the loss is on the defendant.
¶17But the text and provisions of our code do not stop here. Article 2884 says : “The obligation which results from a loan of money can never be more than the numerical sum mentioned in the contract. ” But that he is bound to pay! He must pay the numerical sum, which means the number of the standard (in this case dollars) mentioned in the contract.
¶18And, says the same Article in continuation: “If there has been augmentation or diminution of the value of the specie” (i. e. the kind of currency loaned) “before the time of'payment, the debtor is bound to return nothing more than the numerical sum” (and consequently he can return nothing less than that) “in such specie as has currency at the time of the payment.”
¶19In the case at bar, the time of payment was the months of May or June, 1864, when the bank pass-book was balanced, and when “Confederate notes” were not only worthless, but prohibited as a circulating medium; according to the Code, then, the depreciation must be borne by Barker, and he must pay the sum loaned him in “legal tender,” the specie which has currency at this time.
¶20The proclamation of May 1st, 1862, issued by the major-general commanding the national forces, declared that the circulation of Confederate notes was permitted “until further orders.” See General Order, No. 1, May 1st, 1862.
¶21On the 16th May, 1862, the major-general, by Order No. 29, prohibited all circulation of or trade in Confederate notes, after the 27th May, 1862.
¶22And by General Order No. 30, 19th May, 1862, after setting forth, in the strongest terms, the treason and bad faith of the public and private bankers of New Orleans, the major-general commanded: “II. That all private bankers, receiving deposits, pay out to their depositors only the current .bills of the city banks, United States treasury notes, gold ox-silver.”
¶23This is the supreme law of the department (State of Louisiana), has been, since 1862, and is now in full force, and of higher force than any statute of Louisiana.
¶24Re-hearing refused.