Vol. IV.]

PARKS v. COFFEY.

[No. 5.

was certainly quite as necessary to Alabama, while dissevered from her co-states, as while in union with them. This is indeed affirmed, or recognized, in most of the passages which we have quoted from cases in the federal courts. The latest of those in the supreme court, at Washington, relating to this matter, is that of Sprott v. United States, decided at the present term. [See report in the January No. 1875, of The American Law Register.] Miller, J., in delivering the opinion of the court, and speaking of the difference between "the so-called Confederate government and that of the states," says: "The latter, in most, if not in all instances, merely transferred the existing state organizations to the support of a new and different national head. The same constitutions, the same laws for the protection of property and personal rights, remained and were administered by the same officers. These laws, necessary in their recognition and administration to the existence of organized society, were the same, with slight exceptions, whether the authorities of the state acknowledged allegiance to the true or the false federal power. They were the fundamental principles for which civil society is organized into government, in all countries, and must be respected in their administration under whatever temporary dominant authority they may be exercised."

Anything more conclusive on this point, it would be both difficult and needless to produce. But we may add, that it having been repeatedly held by the highest court of this country, that the acts and ordinances of secession were mere nullities, absolutely void, and all the efforts made in support of them having proved ineffectual, it follows that legally, in contemplation of law, Alabama was never out of the Union. The Constitution and laws of the United States, though their operation was suspended, continued obligatory within her borders, during the whole period of the war. And she continued to be a member of what the Constitution in all its provisions designed to be "an indestructible Union, composed of indestructible states.

Of course, we are not to be understood as holding that because the courts and legislatures of Alabama during the war were such rightfully, de jure, therefore whatever they did must be lawful. Admit, for the sake of the argument, that the persons exercising public functions employed them in doing many illegal acts, even treasonable ones. What then? Concede that they became liable to be, and were, pursued, driven from office, and punished, by the federal government; and that their official acts of the character supposed must be treated as null and void. All this would not prevent the things which they had officially done that were not in violation of superior laws, or of the rights and obligations arising under such laws, from being valid and effectual, any more than the crimes of Charles I. and his decapitation for them, or those of James II., for which England dethroned and expelled him, invalidated the acts which they had lawfully done while they yet actually swayed the sceptre, as kings de jure of the realm.

Our conclusion then is, that the courts of Alabama, during the war, were a portion of the rightful government of the state; and that their judgments, decrees, and proceedings, not in violation of the Constitution and laws of the United States, or of any right or obligation arising under them, and not in violation of the Constitution of Alabama, are valid, and must have operation and effect accordingly.

Vol. IV.]

PARKS v. COFFEY.

[No. 5.

We have before mentioned that the views of our predecessors on this point, as expressed in Hall v. Hall, 43 Ala. 488; Powell v. Boon, Ib. 459; Martin v. Hewitt, 44 Ala. 418, and in other cases, have been modified by later decisions. We refer to the cases of Tarver v. Tankersley, Powell v. Young, and Riddle v. Hill, decided at the last (June) term of this court, and the opinions therein delivered by Brickell, J.

In them it was held, conformably with the opinion of the supreme court of the United States in Horn v. Lockhart, supra, that "judicial proceedings in this state during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the Constitution, are to be treated as binding."

This rectification of the judicial opinion of the court gave great satisfaction to the lawyers and people of the state. Its tendency was to prevent litigation from being fomented, and the peace of families from being disturbed. We have gone a step further (we hope with like beneficent consequences), in holding that the courts in which those judicial proceedings were had were a part of the rightful government of the state.

One consequence of this decision is, that no act of the legislature, or ordinance of a convention, is necessary to give validity to the judgments, decrees, and proceedings of those courts.

Another consequence is, that the records and papers of those courts, during the war, are to be preserved with the same care, and certified in the same manner, as those of the courts held since; and like punishments are to be inflicted for the destruction, mutilation, abstraction, or falsification of the records and papers of the one as of the other.

According to our views, the title to the land in controversy, acquired by appellants under a judgment rendered during the war, the executions upon which created a lien commencing at an earlier date than that created by the attachment for appellee, is valid. And the proceedings of the appellee to have the land sold under the judgment in his suit are injurious to appellants, and cast a cloud upon their title.

The decree of the chancellor is reversed, and a decree will be here rendered perpetually enjoining appellee from further proceeding to sell the land in controversy to satisfy his judgment.

Appellee will pay the costs of this suit in this court and in the court below.

BRICKELL, C. J., not sitting.

At a subsequent day of the term, appellee applied for a rehearing. The argument in support of it did not come into the reporter's hands. The following response was made thereto :

MANNING, J. Application is made for a rehearing in this cause, upon a supposed misapprehension by the court of the facts disclosed by the record. And in support of the application it is alleged that it was not averred by the appellants in their bill, or proved, that executions were regularly issued upon the judgment under which the land in controversy was purchased by them, without the lapse of the term.

The judgment in the suit of W. H. Webb & Co. against J. E. Wallace and Dixon Chitty, which is one of those under which appellants purchased the land, was rendered on the 10th day of October, A. D. 1861.

Vol. IV.]

PARKS v. COFFEY.

[No. 5.

Execution was issued on it in December, 1862, upon which the sheriff returned that he had "received interest and costs on the within fi. fa. April 1st, 1863." An alias fi. fa. was issued and delivered to the sheriff June 28, 1866, but not returned by him, and a pluries fi. fa. was issued and delivered to the same sheriff October 24, 1866, under which he sold the land, and it was bought by appellants on the first Monday in December, 1866, after having been duly advertised. All this appears by the transcript of the record of the cause, which is made an exhibit to the bill of complaint, as a part of it, and was also put in evidence.

The regularity of the proceedings upon the judgment of Webb & Co. against Wallace and Chitty was never disputed or objected to by either of the latter, and it was the land of one of them (Chitty) which was sold, under the execution, to appellants. If the execution ought not to have been issued without a scire facias to revive the judgment, advantage should have been taken of this by the parties, in a direct proceeding. The regularity of the process and proceeding cannot be collaterally assailed by a third person.

Speaking of an authority referred to, in Stewart v. Nichols, 15 Ala. 230, Collier, C. J., said: "The court seemed to assimilate the case before it to a fieri facias sued out after a year and a day after the rendition of the judgment, which is confessedly not void, but merely voidable by some direct proceeding." And again he said (p. 231): "In such case the judges held that if the execution issued without a scire facias after a year and a day, and the defendant did not interpose to set it aside, it was an implied admission that the judgment was unsatisfied and existed in full force." This removed the presumption of payment, arising from the plaintiffs' not taking out execution within a year and a day. See, also, to same effect, Sellers & Cook v. Hayes, 17 Ala. 753; Pollard v. Cocke, 19 Ala. 188.

The execution issued upon the judgment of W. H. Webb & Co. v. Wallace and Chitty, on the 28th of June, 1866, preceded by nearly three months the attachment of the land in September, 1866, by appellee, and being followed, without the lapse of a term, by the execution of October, gave to plaintiffs in it priority over the attachment. And it was under this latter execution appellants purchased the land.

It is not, therefore, necessary to examine the voluminous evidence relating to appellants' purchase of the same land under the judgment rendered in the case of Falls & Cunningham v. Wallace & Chitty, commenced by attachment other than that of appellee.

BRICKELL, C. J., not sitting.

The application for rehearing is denied.

CEIVE COLLATERAL

SECURITY.

- POWER OF NATIONAL BANK TO RE

-DE

— LIABILITY OF NATIONAL BANK FOR THE LOSS OF BONDS DEPOSITED FOR SUCH PURPOSE. GREE OF CARE OF BANK. DAMAGES. PROVINCE OF JURY.

THIRD NATIONAL BANK OF BALTIMORE v. BOYD.

The Third National Bank of Baltimore was organized under the National Currency Act of 1864, ch. 106. The firm of W. A. B. & Co., of which W. A. B. was the senior member, was a large customer of the bank through which all the banking business of the firm was transacted, and from which it received accommodations as needed. On the 5th of February, 1866, the firm was indebted to the bank about $5,000, and W. A. B. voluntarily proposed to the president of the bank to deposit with the bank about $37,000 in bonds, as collateral security for his present and future indebtedness. Subsequently, as agreed between W. A. B. and the president of the bank, certain bonds and stocks were deposited as collateral security for the payment of all obligations of W. A. B. and W. A. B. & Co. to the bank, then existing, or that might be incurred thereafter, with the understanding that the right to sell such collaterals, in satisfaction of such obligations, was vested in the officers of the bank. Some of the bonds were subsequently withdrawn and others deposited in their place. While these collaterals remained in the bank, the firm kept a deposit account with the bank, having an average amount of about $4,000 on deposit, and from time to time as it needed, obtained discounts ranging from $2,000 to $15,000, on the security of the collaterals; it sometimes owed the bank nothing, but left the bonds in its vault; at times when the firm wanted money for a very short time, it obtained it from the bank, on the security of these collaterals, on what were called "call loans," by checks. The officers of the bank considered the account of the firm a very desirable one, and the arrangement, by which every liability of theirs was secured by the collaterals, very advantageous to the bank. The firm was not indebted to the bank subsequent to July, 1872, when it paid its last indebtedness; the bonds were not withdrawn, but left in the bank under the original agreement. Between Saturday evening, the 17th, and Monday morning, the 19th of August, 1872, the bank was entered by burglars and certain of the bonds were stolen. By section 8 of the Act of Congress of 1864, ch. 106, a bank organized thereunder is authorized "to exercise all such incidental powers as shall be necessary to carry on the business of banking, by discounting promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits, by buying and selling exchange, coin, and bullion; by loaning money on personal security, and by obtaining, issuing, and circulating notes according to the provisions of this act." In an action by W. A. B. against the bank, to recover the value of the bonds which were stolen, it was Held:

1st. That the contract entered into by the bank was not a mere gratuitous bailment. 2d. That the bank had the power to enter into the contract, it being within the terms of the act of Congress.

3d. That the original contract of bailment being valid and binding, the obligation of the bank for the safe custody of the deposit did not cease when the plaintiff's debt had been paid.

4th. That the defendant was responsible if the bonds were stolen in consequence of its failure to exercise such care and diligence in their custody or keeping, as at the time banks of common prudence, in like situation and business, usually bestowed in the custody and keeping of similar property belonging to themselves; that the care and diligence ought to have been such as was properly adapted to the preservation and protection of the property, and should have been proportioned to the consequence likely to arise from any improvidence on the part of the defendant.

Vol. IV.]

THIRD NATIONAL BANK OF BALTIMORE v. Boyd.

[No. 5.

5th. That the proper measure of damages was the market value of the bonds at the time they were stolen.

Whether due care and diligence have been exercised by a bank in the custody of bonds deposited with it as collateral security, is a question of fact exclusively within the province of the jury to decide.

APPEAL from the circuit court for Howard County.

On the morning of Monday, the 19th of August, 1872, when the officers of the Third National Bank of Baltimore arrived at the bank, it was discovered that since the close of business on Saturday evening, the vault and safe of the bank had been broken into by burglars, and robbed of a large amount of money and valuable securities. The entrance had been effected through the walls of an adjoining building, belonging to Mr. John S. Gittings, by tenants of that building, who had rented it doubtless for the express purpose of carrying out the scheme of plunder. By appropriate and ingenious tools, the walls of both buildings, and of the vault, and the iron plates between the double walls of the vault had been perforated, and the safe within forced open. Among the valuables taken were some $64,000 in money belonging to the bank; $10,000 in the custody of the paying teller; $40,000 of coupon bonds belonging to the family of the acting president of the bank and in his custody; and various coupon bonds belonging to the appellee, the market value of which at that time was nearly $26,000. To recover the value of these last mentioned bonds the present suit was instituted by the appellee against the appellant in the superior court of Baltimore city, whence it was removed, on the suggestion and affidavit of the latter, to the circuit court for Howard County, where it was tried. There was much testimony in relation to the circumstances attending the proceedings of the burglars, and in regard to the precaution taken by the appellant, and by other banks in the city of Baltimore, to guard the money and other valuables in their custody. On one side, the object was to show that everything was done that could be reasonably required on the part of the defendant for the safe-keeping of the bonds in its vault; on the other, that there was such remissness in various respects as rendered the defendant liable to the owners of special deposits.

At the close of the testimony, the plaintiff offered seven prayers, of which the court granted the first, fourth, fifth, sixth, and seventh, and rejected the second and third. The first and seventh prayers are sufficiently set out in the opinion of this court; the fourth, fifth, and sixth are as follows:

4. That if the jury shall find that the bonds of the plaintiff were in the custody of the defendant under the agreement, and for the purposes set forth in the plaintiff's first prayer, and that the robbery and loss of the bonds thereby which have been given in evidence might have been prevented by ordinary vigilance and care on the part of the watchmen of the bank, or either of them, then the loss of the plaintiff's bonds by said robbery is no defence to the plaintiff's claim in this action.

5. If the jury find that the bonds of the plaintiff being in the custody of the defendant under the agreement, and for the purpose set forth in the plaintiff's first prayer, were lost or stolen by reason of any neglect of or inattention to duty on the part of any of the officers or employees of