Dissenting.
My convictions of the law of this case, under the agreed statement of facts, are so .fixed from a very careful consideration of them — that I cannot by any process of reasoning, bring my mind to assent to the judgment rendered by the majority of this Court.
I exclude as wholly immaterial to a proper decision, all the facts as to the mistake about the sugars — which party was most in fault — as also the form of action brought. I admit broadly that Anderson, Adair & Co., were blameable in not receiving the Confederate notes for which the sugars were sold by Ansley & Co., when first tendered in Court. They were in truth and right at that time the property of Anderson, Adair & Co. Anderson, Adair & Co. had then no claim in law or equity whatever for the sugars sold by Ansley & Co., but only to the Confederate notes paid for them by the purchaser. I apprehend that no lawyer will dispute the proposition that, after making the tender, Ansley & Co. could, by bill in Equity, have compelled Anderson, Adair & Co. to have received said notes in payment, and to have granted to them a full acquittance from all liability for the sugars. But no step of this kind was taken for their protection. Ansley & Co., had they sealed up in a package the Confederate notes tendered by them, and deposited that *20package in some safe and usual monied depository, subject to the order of Anderson, Adair & Co., and promptly notified them of such special deposit — might also in this mo de have exonerated themselves from all liability which might subsequently arise from the depreciation or destruction of said notes. Neither the one course or the other indicated, was resorted to by Ansley & Co.
So far from taking any step whatever, indicative of their considering and treating the Confederate notes as the sole property of Anderson, Adair & Co., they withdrew, immediately after the tender, the notes from Court, and deposited them as money in Banle to their own credit, a/nd mimd them with their own monies in said institution, and contmued to use them by checldng on their general deposit account for tnno years as thei/r own pivpxarty.
I think that these notes were undeniably the property of Anderson, Adair & Co. The tender admits the fact. The mixing of these notes with their own monies by a general deposit to their own credit, and the use of them by checking on that general deposit was an actual conversion.
The simple question upon this state of facts, and the only legitimate one in the-case is, whether Ansley & Co., did not make themselves responsible by these acts to Anderson, Adair & Co., for the value which these Confederate notes had at the time of their conversion ? There is no question in the record as to what care Ansley & Co., were bound to use in reference to the notes tendered — but simply could they use them, could they appropriate them to their own business transactions — could they convert them to their own use without making themselves responsible for their value at the time of the conversion ?
One of the distinguished counsel of the defendants in error asked “ after the tender and refusal to accept, did the Confederate notes become a waif, which might be taken possession of by any comer or goer, and appropriated to his own purposes without responsibility to the owner ? Did they become lawful objects of general plunder ? Or did they still *21remain the property of Anderson, Adair & Co. ? If they still remained their property, they may have been in a very bad situation, indeed; with nobody bound to take even tne least care of them, but surely they were not in a situation quite so bad as that Ansley & Co. could lawfully take them and appropriate them to their own use ? Hence, the same repeated question returns on us, did Ansley & Co. appropriate these notes to their own use? "Was the legal effect of their treatment of them a conversion ?
That the use of them, by Ansley & Co., was a conversion, is demonstrated by a case in 2d Wallace Reports p. 252, with a force and perspicuity which 1 had hoped, would have led my colleagues to agree with me. The case was The Marine Bank of Chicago, after having given notice to all its customers,including the Fulton Bank of New York, that it would make collections only in the bills of the Bank of Illinois, (then at a discount of ten per cent.,) and after waiting a reasonable time, without getting any countermand of the Fulton Bank’s previous order to proceed with the collection of the promissory notes which were held for it by the Marine Bank, did proceed with the collection, and collected on notes belonging to the Fulton Bank, $3,037, in bills of the Bank of Illinois, and placed the money to the credit of the Fulton Bank, with notice, that it was subject to the order of the Fulton Bank at any time. About a year afterwards, the Fulton Bank demanded a settlement. The Marine Bank offered to pay in the bills of the same Illinois Bank, (which had then fallen fifty per cent, below par,) but not the identical bills which were recei ved on the collection of the notes. On these facts the Supreme Court of the United States, Mr. Justice Miller delivering the unanimous decision of the Court, held in affirmance of the judgment below, that'the Marine Bank was bound to account for the value which the hills of the Banlc, of Rlinois had at the time of the collection. The Courtjield, that the collection in that currency, was a proper one, after the notice which they had given, that they could not make collections in any other.
*22The only question in the ease, as it is in this, was : IIow did their treatment of the Illinois Bank notes affect them ? The decision of the Supreme Court of the United States was that it made the Marine Bank liable for the value of the Illinois Bank notes, at the time when the Marine Bank placed them to the credit of the Fulton Bank of New York, and thereby mixed them with its own funds, which were used in its daily business. The Court said : “It is true, that it is not in evidence what precise use was made by it of the money received for the collections, but it is proved that it was placed with the other money of the Marine Bank, and used in its daily business as its own.” Again, the Court say: “If it was defendant’s money, it was all right, because it could do as it pleased with its own; but if it was the plaintiff's money, held by defendant, as its agent, then the use of it by defendant would seem to be a conversion.”
Is it not manifest that the decision in Wallace's Reports, goes upon the hypothesis (and is it not undeniably true) that the Illinois Bank notes still remained the property of the Fulton Bank, and that as the Marine Bank, by placing them with its own funds, and using these mixed funds in its own daily business, converted them, and thereby became liable for the value they had at the time of the conversion ?
How, applying this principle to the case discussed, if the Confederate notes remained the property of Anderson, Adair & Co., after the first tender in Court, then Ansley & Co. converted these notes by mixing them up in a general deposit in BanTt with their funds, on which they daily cheeTeed, in transacting their commission business, and in buying and selling, and by thus using these Confederate notes, the unquestionable property of Anderson, Adair & Co., and not their own.
This mixing up of the funds of Anderson, Adair & Co., with their own, and thereby destroying the identity of those Confederate notes, and the use of both together indiscriminately, was an actual conversion by Ansley & Co.
*23This was the precise point decided in Wallace, or the case decides no point at all.
Here I might rest the argument, but the view taken of the case by the majority of the Court authorizes its extension. They say in effect that, notwithstanding the mixing of the funds — the property of Anderson, Adair & Co., — by Ansley & Co. with their own in Bank — the daily use of them in trade — the actual conversion of these Confederate notes to their own purposes — that because Ansley & Co., by letter, had said, that the Confederate notes were subject to the order of Anderson, Adair & Co. at any time, that this letter constituted a continuing tender, and that consequently the notes were oil the while, since the tender in Court, at the risk of Anderson, Adair & Co.; and that Ansley & Co. could not be viewed in the light of insurers. To my mind, nothing seems clearer than that there was, in fact, but one tender. Its legal effect was to exempt Ansley & Co. afterwards from interest on the amount in their hands and Court costs, should Anderson, Adair & Co sue them for it. It had this extent— no more — especially as there was no separation of the funds — to preserve their identity, and deposit of them to the order of Anderson, Adair & Co.
I apprehend that it is undeniable, that, had Anderson, Adair & Co., upon the receipt of that letter, drawn their order on the bank where the Confederate notes were deposited, the Teller would not have paid it, for the plainest of all reasons: that no funds had been placed on the books of the bank to their credit. The refusal to pay in .such case would not have given Anderson, Adair & Co. a right of suit against the bank. This demonstrates the proposition that the Confederate notes were not subject to thei/r order, and, necessarily, that the letter could not connect itself back with the tender in Court, so as to invest it with the character ascribed to it, of its constituting “ a continuing tender.”
It is a very great mistake of fact, to assert that the Confederate notes were at all times, after the original tender in Court, subject to the order of Anderson, Adair & Co. So *24far from this being true, (and I refer to the agreed statement of facts made by the Attorneys of the respective parties to sustain me,) I assert that they were never for a moment subject to the order or control of Anderson, Adai/r & Co. up to this time, and hence the legal conclusion, that the notes were all the while at the risk of Anderson, Adair & Co. is unauthorized by the facts.
I declare my utter inability, in a legal sense, to compre hend that letter as a tender at all; it contained no money) or Confederate .notes ; there was no exhibition of any accompanying it, nor presentment of any for acceptance.
To term it a tender is to confound, in effect, two things that are clearly distinguishable: a mere declaration of willingness and readiness to pay, with an actual exhibition of money and offer to pay it.
It should be borne constantly in memory, that a very long interval of time elapsed between the tender in Court and the “ letter ” spoken of, during all of which Ansley & Co. were using the Confederate notes of Anderson, Adair & Co. as their own. It is the conversion of them, by the mixing them with their own funds in bank, and the use of these mixed funds during this interval, that fixes the liability of Ansley & Co. to account for their value, at the time they placed them in bank to their own credit, and which destroys the connexion between the original tender and the letter, and strips the latter of the character ascribed to it of being “ a continuing tender.”
The idea of “ a continuing tender ” cannot be predicated of the Confederate notes originally tendered, as they had not been kept separate or marked, so as to establish their identitit/ ; but having been mixed by the general deposit in bank, not only with the funds of Ansley & Co., but with the funds of other depositors, and the funds of the bank itself. I might safely say, that it was a moral impossibility that the Confederate notes, the property of Anderson, Adair & Co., could be tendered again, and, consequently, there could not have been “ a continuing tender of them.”
*25Paid out, as these Confederate notes must have been, on the checks of Ansley & Co., in the prosecution of trade, or to some other depositor with the bank, or by the bank to some one to whom it loaned money, or paid a debt, value was thus received for these notes, and it matters not by whom, since it was the act of Ansley & Co. which placed them beyond the order or control of the owners. The letter, under the circumstances, amounted to no more than an averment of readiness to pay to A., A. & Co. an equal amount of similar Confederate notes — equal on their face at the time the letter was written, but not made equal in value to the Confederate notes of A., A. & Co. at the time of the deposit in bank.
To conclude, Ansley & Co., having failed to adopt any one of the means suggested, by which they could have put the Confederate notes received by them for the sugars at the risk of the owners ; but having converted them to their own use, as they did their own funds, and received value for them, it seems to me most unreasonable that now, when Confederate notes have become utterly worthless, Ansley & Co. are to be permitted to come into a Court of justice, and discharge themselves by payment in similar Confederate notes, which they happened to have on hand when the bubble burst.