concurring: The bank book of Brunot shows that the Allain notes were deposited with the bank in April, 1861.
The notice published by the bank on the sixteenth of September, 1861, announced that the bank had suspended specie payments on its liabilities — that thereafter Confederate money would be accepted in payment and received on dcimsit — parties having paper on collection in the bank were notified to withdraw the same-iwiless they consented to receive Confederate notes or local bank notes in payment of said paper to withdraw the same ; and no paper would, thereafter, be received on collection when the owners required other than treasury or local bank notes in payment thereof.
There is no proof that Brunot ever saw, or hoard of, this notice, or that he subscribed for or read the newspapers in which the notice was published. Its publication was not notice to Brunot.
But even if the evidence had established that this notice was known to Brunot, it simply requested him to withdraw the notes, unless he consented to have them collected in Confederate notes, or bank notes. His failure to withdraw the notes from the bank did not authorize the bank to collect them in unlawful money. If the bank did not wish to keep the notes for collection, unless it was permitted to take'Confederate notes or bank notes for them, it could have returned them to Brunot, but it could not take anything but lawful money for them without the consent of Brunot. This seems to have been the opinion of the bank when it published the notice aforesaid, for it said to its customers, “ unless you will consent to have your notes collected in Confederate notes or bank notes, take them away.” The consent of Brunot was never given. It is said that Confederate money was paid to Brunot, and that ho must be held to have approved the acts of the bank in receiving Confederate money for the Allain notes. A careful examination of the evidence has satisfied me that there is no proof that Confederate money was ever paid by the bank to Mr. Brunot himself, but that Confederate money was paid to the bearers of the checks drawn by Brunot on the bank, for $1500, $150, $100, and $17. In speaking- of these checks the witness says, “ I do not know that Brunot had any notice that the funds would be Confederate money; but his-*233checks were drawn against what he had to his credit, and were paid, in Confederate money.”
The evidence does not satisfy me that the Allain notes were collected, in Confederate money. Allain, the debtor, had an account with the bank, and he gave his checks on the bank for the notes, deposited by Brunot with the bank, as they matured. The witness says: “These, checks did not express Confederate money on their face, but it was understood and agreed that all our customers should take Confederate money.”
By whom was this understanding and agreement made ? The evidence does not establish any such agreement between the bank and Brunot, or between the bank and Allain, or between Brunot and Allain.
We have decided repeatedly that an agent will not be released from, responsibility, if he received Confederate money for his principal without authority to do so. Succession of Jesse W. Wilder, 21 An. 37].
We have also decided that one, who seeks to screen himself from liability on the ground that the transaction was based on Confederate money, must prove the fact, and not leave the matter to inferences or presumptions. Weaver v. Anfoux, 20 An. p. 1.
In this case, however, the inferences and presumptions are altogether in favor of the plaintiff.
The bank book in evidence shows that on the tenth of July, 1861, there was to the credit of Brunot, in the bank, $18,473 66. On the twentieth of March, 1865, this amount was passed to the credit of Mrs. Sophia Brunot, administratrix, on her check; and on the same day, as administratrix, she checked against this fund for six hundred dollars, which was paid in United States treasury notes. There were not two amounts to her credit as administratrix, one for Confederate money, and one for lawful money, as contended, but only one amount, $18,473 66, against which she drew.
I think the evidence establishes the right of the plaintiff to recover. I therefore concur in the iudgment rendered by Mr. Associate Justice Wyly.
Eor the reasons given by the Chief Justice, I concur in the decree in. this case.
R. K. Howell.