HEADQUARTERS DEPARTMENT OF THE GULF, New Orleans, La., June --, 1862.
In the matter of the appeal of W. N. Mercer, president, and August Montreuil, cashier, of the Bank of Louisiana, defendants, from the judgment of the provost court, upon the complaint of A. Durand, complainant.
This is an application by the defendants, representing the bank, made to the general commanding, asking him to revise and set aside the judgment of the provost court made in favor of the plaintiff, Durand.
It is based upon the legal theory that over all matters within garrison camp, and perhaps geographical military department wherein martial law has been declared the power of the commanding general is absolute, and that, looking to him as the representative of the martial power of the government here, all applications for redress must be made when any wrong is supposed to have been done. This view being sound, as fa as I can see, I have, with the best thought possible under the circumstances, re-examined the case and the reasons assigned for the appeal.
Error is claimed on two grounds: First, that the provost court had no jurisdiction of the cause; and, second, that the judgment was not in accordance with the law which should govern its decision.
The argument assumes that law to be General Orders, No. 30, and does not dispute the authority which made or the effect of that order, but contents itself with endeavoring to construe the order.
The objection to the jurisdiction of the court is put upon two grounds: 1st, that the provost court has not jurisdiction of the subject-matter; 2nd, that the proper parties were not before it, so as to enable it to act with regard to the rights of those who were not summoned in the case.
It is said that this question, being one of a right of property, cannot be entertained by a court which only acts to punish the infraction of military orders and police regulations.
A technical answer to this objection, which is in the nature of a plea to the jurisdiction, would be that it does not appear this plea was put in till after the the hearing upon the merits.
It is a familiar rule that a party shall not be allowed to go into court and have a hearing on his case, take the chances of a division in his favor, and then, if adverse, repudiate the court before which has has appread and to whose judgment he has submitted his cause.
This rule has been held very strictly, both as to jurisdiction over the subject-matter and the parties; but in a court answer is not sufficient. Of what then do the defendants complain? The bank says the court has made an order which does that of which complaint its made? The bank nowhere complains that the general has not the power to make such an order, if in his judgment it becomes a military necessity, and that the first question put to him upon entering the city was what currency would be provided for the people to save them from starvation and bread-riots. It has passed into history that he permitted a vicious currency as a medium of circulation for the purpose of meeting this exigency. Again, it will be remembered that the bank now claims that it is exempted from the effects of this order because by order of another military commander, in September last (there was on civil law for it), it was obliged to suspend specie payments