dissenting. I am compelled to differ from the majority of the Court in the conclusions arrived at by them. Conceding that the ground on which the Circuit Judge placed his judgment of non-suit is not tenable, still, it does not appear to me that the action can be maintained. If this view is correct, it follows that the non-suit ought to stand.
The plaintiff, in order to succeed in his action of trover, must establish that the defendants engaged to hold the specific notes delivered by him to them, as-a security merely for the return of the Confederate currency loaned by them to him, and to return those specific notes upon the performance of the condition upon which they were held. It is not enough, to maintain this form of action, that the defendants merely undertook to deliver, upon the performance of the condition, notes of the same character and value as those deposited by the plaintiff. Nor can this action be maintained if the defendants had the right to use the notes in question.
The contract of the parties is to be looked to as decisive of this question. That contract was neither the ordinary contract that arises out of a bank deposit, in virtue of which a cash credit is immediately given to the depositor, and which gives rise to the relation of debtor and creditor, nor was it strictly a case of special deposit, where the bank is a mere bailee, bound to return the property specifically.
The plaintiff proved that he borrowed $4,000 of Confederate currency of the defendants, upon a deposit, with them, of bills of the defendants to a like nominal amount. He was to use the currency borrowed, for eight or ten days. It does not appear that he was to pay interest upon the loan. In point of fact, he tendered the same amount borrowed without interest added.
The language employed in concluding the agreement must be *447considered in relation to the subject-matter of the contract, and the relations of the parties.
The notes exchanged were, in a commercial sense, money, and were so treated by the parties. The individual bills actually interchanged cannot be supposed to have been the subject of special consideration between them. What they looked to was simply the kind and value of the currency in reference to which they were dealing.
The defendants’ business was to lend money for profit, and the plaintiff must be deemed to have approached them in that character. The transaction must be deemed a business transaction. If the bank were not to receive interest, and it is not pretended that they were, their only motive in making the transaction was the use of the currency received from the plaintiffs by way of exchange.
It appears that the bills of the South-western Railroad Bank were counted by the defendants and “put aside.” They were undoubtedly placed with other bills of a similar character. As these bills were the defendants’ own obligations, it is hardly probable that they would deem it necessary to resort to any extraordinary means of safe-keeping.
If the plaintiff’s idea of this case is correct, then the defendants were bound to keep the identical bills delivered by him, and to return them. If they placed them with their other funds, and paid them out, they were guilty of a conversion. Nor could they purge themselves of the tort by having other bills, of like character and amount, ready to deliver to the plaintiff upon his returning the currency borrowed of them. It is not a reasonable view to put upon the plaintiff’s testimony to assume that any such consequence was contemplated or intended by the parties.
The Courts have always discouraged attempts to convert ordinary commercial transactions into cases ex delicto, especially when, as in the present case, the effect will be to hold one party to his obligations, and allow the other to escape without fulfilling his.
It is one of the most admirable features of the common law that, while protecting the citizen in the enjoyment of his property to the extent of indulging his affections and tastes, and even his capricious likes and dislikes, it yields to the liberal spirit of commerce, and fosters confidence by encouraging mutuality and open dealing, and discouraging reserve and surprise.
I cannot regard the testimony in the case as establishing a tortious conversion on the part of the defendants.