This is an action to recover from the defendants the amount of a draft left with and collected by them for plaintiff.
The defence is, that the amount of said draft was collected in Confederate currency, which defendants say they are willing to pay, and they ask that the suit be dismissed.
Plaintiff obtained judgment, and defendants appealed.
They contend in this Court that plaintiff, by suing for the amount collected, and not for the draft or its value, has ratified their act in receiving Confederate currency, and are bound thereby.
The record shows that defendants placed the note for collection in a bank, where they kept an account, and that it was paid on the 21st September, 1861, some four or five days after the bank suspended specie payments. A clerk of the bank says that notes, deposited for collection prior to the date of suspension, were not collected in Confederate currency, unless under special instructions, and that the draft sued on was deposited before that date. The defendants have not shown that they were authorized to give such instructions, by their principal, who was absent. They attempted to show that they made a special deposit of the funds received in payment of the draft, but failed in the attempt. On the contrary, it appears that said funds were mingled and used with their own; which, it is true, were, at the time, in Confederate currency. It was incumbent on them to show that they have not used the money thus collected. By receiving and using the amount of the draft, they became the debtors to plaintiff, and must pay in currency, unless they show, which they have not done, that plaintiff ratified their act. A suit for money received and appropriated, is not such a ratification. They received what they used as money, and they must pay what is money. Confederate treasury notes are not money.
We do not think this a case for damages as for a frivolous appeal.
It is therefore ordered, that the judgment of the lower Court be affirmed, with costs.