text:
    Lavender, ad, et al. vs. Abbott, ad.
    1. Vendob’s Lien. Passes by descent.

    The vendor’s equitable lien for purchase money descends to the heir in the same condition as the ancestor held it.
    2. --Waiver of.

    The taking of porsonal security will not, of itself, displace the vendor’s equitable lien.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. P. C. Dooley, Circuit Judge.

      Cockrill for appellants.
    The note never was secured by a lien on the lands sought to be subjected. 2 Washburne R. P., 91.
    John Wells is an assignee of the note. Co. Lit., sec. 12; 2 Blacks Com., 241; 2 Redf. Wills, 356. Vendor’s lien does not pass to him. Shall v. Biseoe, 18 Ark., 142; Williams v. Christian, 23 lb., 255; Simpson v. Montgomery, 25 lb., 372.; Heeht v. Spears, 27 lb., 229; lb., 518.
    Abbott’s testimony concerning conversations with DuBose is incompetent. Const, of 1868, art. 7, sec. 22. Giles v. Wright, 26 Ark., 476.

      Lien lost by taking sureties. 2 Wash. R. P., 91. Nor will it prevail against a judgment creditor. Bayley v. Greenleaf, 7 Wheaton (U. S.), 416; Mason, 192; Dunccm v. Johnson, 13. Ark., 190; Hecht v. Spears, supra.

    The judgment of the Probate Court, classifying the claims in the third class, is conclusive on the point of their being liens When probated. Gantt’s Digest, secs. 98 and 113; Borden v-State, 11 Ark., 519; Sturdy and Wife, et al, v. Jacoway, 19 Ark.,, 499; Tucker v. Yell, 26 Ark., 427.

      L. A. and X. J. Pindall for appellee.
    The vendor’s lien does not arise from contract; it results from operation of law. Story’s Eq., 1217 to 1233; Jackman v. Holloch, 1 Ohio, 320.
    The assignee of the note for value simply holds a personal obligation. Williams v. Christian, 23- Ark., 257; Schnebley v. Ryan, 7 G. & J. Md., 126; Hall v. Chick, 5 Allen, 364.
    But the lien remains when the vendor retains a beneficial interest in the note. Crawley v. Riggs, 29, 558; Halloch v. Smith, 3 Barb. N. Y., 272; Moore & Cail v. Anders, 14, 635 ; White v-Williams, 1 Paige’s Ch., 506. Not lost by taking a note with personal security. Story, 1226.
    A waiver of it will not be .presumed where doubtful. Story’s Eq., 1223-4 — 6.; Plarris v. Hanks, 25, 514; Gar sen v. Green, 1 Johnson Ch. 309; Sheppard v. Thomas, 26, 634; Herman v-Beam, ’, 2 Ohio, 386 (a case in point); Barnet v. Marie, 3 Louis,. a 602; Bacchus v. Moreau, 4 Lousa, 314; Tenda v. Jones, 43 Miss., 792, S. C. 2d Am., 669; Tiffany & Bullard on Trusts and Trustees, 86 et seq.

    The lien passed to the legatee. Story’s Eq., 1220-27. See Herman v. Beam, supra, and Pollexfen v. Moore, 3 Ark., 273-It prevails to vendor’s privileges. Williams v. Stuart, 30 Geo.,. 210; Allen & Hill, ex’rs of Shanks v. Smith, adm’r, 25, 498.

      It is superior to the equity of a judgment lien. Tiff. & Bull, on Trusts. 88; Aldrich v. Dunn, 3 Blackf., 250; Tulleson v. ■Johnson, 6-7 Ohio, 366 ; Feet v. Beer, 14 Ind., 48; Webb■ v. Robinson, 14 Geo., 230; Ghanoe v. MaWharter, 26 Ga., 315; Story’s Eq., 1228; Shirley v. Sugar Ref., 2 Ed. Ch., 505; 1 Lomax, 271-2; Adams’ Equity, 314, 153 s. p.
   Walker, J.:

This suit was brought by Abbott as administrator of the estate of John Wells, to enforce an equitable lien upon certain lands, and to subject them to the payment of a note given for part of the purchase money.

There was also a cross bill filed by Charles P. Cochran and others, in which they set up a judgment against the estate of Alfred B. C. DuBose, which they claim to be a lien upon the lands claimed to be subject to the equitable lien of complainant in the original bill, and that their debt was contracted upon- the faith that DuBose was the owner of the land, and that it was unincumbered.

The facts, as appear from the pleadings, are that in the year 1857, Samuel Wells, the owner of 480 acres of land, situate in Arkansas county, sold the same to Alfred B. C. DuBose for the sum of $14,700, one-third of which was in hand paid, and for the payment of the residue of the purchase money, DuBose, with Dunn as security, executed to Wells ten notes for $4,900 each, due in 1858 and 1859, in consideration of which Wells executed to DuBose a deed for the land, and DuBose thereupon entered upon and took possession of the land. Soon after this, Wells died having made a will, leaving a widow and children, and divided these notes, or the money when collected, with other property- to his children. Under an agreement between the executor of Wells’ estate and DuBose, the money due upon the notes was to be paid by DuBose upon the order of the executor. Upon a settlement of the distributive shares due the heirs, there was found to be due John Wells, a minor son of the testator, the sum of $2,324.50, and an order was drawn by the executor in favor of the guardian of this minor son for that amount. On the 13th October, 1860, the guardian presented the order to DuBose, who took it up, and executed his note for that amount, it being a part of the purchase money due for the land.

John Wells died, and Abbott was appointed administrator of his estate, and has brought this suit upon this state of facts set forth with apt averments, in which he claims a vendor’s lien upon the land sold by Wells to DuBose, in part consideration of which the note in suit was given, in liquidation of that much of the original notes executed. DuBose having also died, his administrator and heirs are made parties defendants to the suit.

Defendant Lavender answered and set up in defense, that Wells took personal security for the payment of the notes, and that there is no equitable lien existing on the land. The other defendants answered by attorney.

The plaintiff answered the cross bill; admitted that a judgment was rendered in favor of plaintiff in the cross bill against DuBose, but says that more than three years elapsed between the time of the rendition of the judgment and the death of DuBose; that the judgment lien had expired, and had never been revived. He positively denies the allegation that the debt upon which the judgment was rendered was contracted upon the faith of the lands being owned by DuBose. That the debt was contracted seven years before DuBose purchased the land of Wells.

The case was submitted to the court upon the bill and cross bill, and the answers, agreed state of facts and depositions.

The court rendered a decree in favor of the complainant in the original bill for $5,332.81 the amount of the debt and interest, declared a vendor’s lien upon the lands, and ordered that they be sold to satisfy the same. Defendant Lavender appealed.

All of the necessary steps to bring the parties before the court appear to have been taken, and to bring the case to a hearing, as well upon the original, as upon the cross bill.

The plaintiffs in the cross bill have not appealed, and it may well be supposed that upon the coming in of the answer of complaint in the original bill and the proof taken to sustain it, they abandoned their suit, because it is evident that under the state of facts, they had no right to intex’pose their bill for relief.

There is no one claiming as purchaser of the land, nor is there any one except the complainant in the cross bill, who claims to hold a debt contracted by DuBose upon the credit that he acquired as owner of the land, which we have seen was wholly unsustained by the evidence, so that the issue here presented is-between the heir of the vendor, against the administrator and heirs of the vendee. And in order to simplify this issue, we may say, at the outset, that the heir must be considered as the-representative of the father, with all the rights which under the state of the case would attach to him if living.

This question came before the Supreme Coui't of Ohio in the case of Tierman v. Beam, 2 Ohio, 386, in which it was held that if the vendor retained the equitable lien at the time of his death, it descended to his heirs, or passed to his devisee in the condition it was at the time of his death.

Bispham, in his principles of equity, 356, says “the equity exists in favor of the legatee whose legacy has been taken in payment of the purchase of an estate in the hands of the heir."

Story, 1217, says “the vendor has a lien on the purchase money not only against the vendee and his heirs, and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid.”

That the vendor has an equitable lien upon the land conveyed by him, for the payment of the purchase money, may be conceded as a settled question in this State, and the courts of all the other States except Maine, Pennsylvania, Kansas, North and South Carolina. The counsel for the appellant is not understood as questioning this right, but insists that in this case the lien was discharged by the vendor, when he took personal security for the payment of the purchase money. The mere fact that the vendee executed a note for the payment of the purchase money with security, is not of itself sufficient to displace the vendor’s lien, but is a circumstance with others, to determine what the intention of the parties was at the time the note was executed. The parties to the contract have an undoubted right to contract for additional security without giving up or abandoning that which the law confers. The question as to whether the parties intended to rely upon an independent security is one of fact to be determined like all others from acts and declarations. Bispham, 355, says the lien of the vendor for unpaid purchase money is considered waived if a distinct and independent security for the purchase money is taken, as an illustration of which he instances the taking of a mortgage or other property to secure the payment of the purchase money, or other independent security, a pledge or the like. But, that the taking of such independent security, although an evidence of a waiver, is not conclusive evidence, and, that a mere personal security will not of itself operate as a waiver of the lien. When, however, a bill or note is taken as a payment of the consideration money, in other words, when the security was in the thing bargained for, the lien is gone. Story, at page 1224, says: “Generally speaking the lien of the vendor exists, and the burden of tlie proof is on the purchaser to establish that in the particular case it has been intentionally displaced, or waived by the consent of the parties.

“And if, under all the circumstances, it remains in doubt, then the lien attaches * * *. The taking of security has been deemed no more than a presumption under some circumstances, of an intentional waiver of the lien, and' not as conclusive of the waiver, and, if security is taken for the money, the burden of proof has been adjudged to be on the vendee, to-sliow that the vendor agreed to rest on that security, and to discharge the lien.”

There arc many other authorities to the same effect, and from which we may safely conclude that when an independent security, such as a mortgage on other property, a pledge, or where the negotiable note of a third party is taken and endorsed by the vendee, these acts would be held as evidence of an intention to waive, the lien rights, but would not be conclusive that such was the intention of the parties. But when the security is riot independent, as when a note with security is given to secure the payment of the purchase money, then it is to be held as cumulative, not independent security, and the party who assumes that it was the intention of the vendor, to waive his lien on the land, and rely upon the personal security, must prove such to have been the intention of the parties.

This the defendant has attempted to do by evidence. Winn, a. witness for the defendants, stated that in 1856 Wells sold to Du Bose the land in controversy, that he understood that one-third of the purchase money was paid in hand, the balance to be paid in future installments, for which notes were given, was intimate with the parties at the time the trade was made, and it was witness’ understanding that Wells, on taking the notes, demanded and required personal security for their payment; that Dunn went security on the notes; that Wells demanded personal security, because he said it was too slow a process to collect by enforcing a vendor’s lien ; that DuBose told witness that he preferred giving a lien upon the land, but that Wells insisted on personal security. Witness stated that his means of information were derived from an intimate acquaintance with the parties, and felt confident that he had heard both speak of the transaction in the manner stated by him.

This was all the evidence offered by the defendants.

The plaintiff then read in evidence the deposition of a witness, who deposed that he was present and saw the notes executed; that Dunn and perhaps Smith went on the note as securities. Smith urged Wells to take personal security. Witness remonstrated against it, and told Wells he might lose his lien. Wells was an ignorant man, said he would risk it, but made them promise that, if the personal security failed, he should have his lien. DuBose and Smith both promised that Wells should have his lien on the land. When this conversation took place, the notes were signed but not delivered. Smith had them. When witness remonstrated against taking personal security, Smith told Wells that he (Smith) had been a craeh lawyer in Memphis, and he knew that personal security on the note would not vitiate the lien.

Wells said that the reason why he wanted personal security was, that he wished to use the notes with his merchants in New Orleans. At this time we were on the porch, DuBose was in the house, and Wells told Smith to call DuBose out, and when he came out, Wells told him that witness thought personal security might invalidate his lien on the land; asked DuBose if he failed to pay the notes whether he would rob him of his lien. DuBose replied, certainly not. This witness also deposed that he was appointed guardian of John Wells in 1862. That Henry G. Wells had, before that time, been guardian. Witness received the note sued on from him. That in 1867 he called on DuBose for payment of the note, and assigned as a reason why he desired to collect the money, that he then had an opportunity to loan the money on real estate security. DuBose replied that the note was given for land, and was as secure as witness could possibly make it. Witness then left, and soon after called again on DuBose for payment of the note. DuBose told witness that the note was a land note, and was a lien on the part of his farm bought of Wells, and that the lien would hold until the note was paid. Witness, relying upon these representations, permitted the money to remain in the hands of DuBose. That the notes executed by DuBose and Dunn were never paid in the lifetime of Wells. That Halliburton, the executop of the estate of Wells, never collected the notes. That the note in suit was executed by DuBose to Henry Wells, the former guardian for his ward, John Wells, for that much of the original note or debt due by DuBose for the purchase of the land to which John Wells, one of the heirs and devisees of Samuel Wells, deceased, was entitled. That John Wells died intestate, and that plaintiff was administrator of his estate.

This is the evidence in regard to the taking of personal security for the purchase money. And whilst the evidence of Winn strongly tended to prove that the personal security was intended to be given in discharge of the lien upon the land, his testimony must be taken with allowance, when we see that he does not profess to have been personally present, but drew his information from conversations with the parties, and gives his understanding of the agreement from this source. Whilst that of Abbott is from actual presence when the notes were executed, and again when DuBose was called upon to pay this heir of Samuel Wells the amount due to him, the distinct declaration of DuBose that the note was, for the purchase money, and was a lien on the land, leaves the weight of the evidence in favor of the conclusion that it was not the intention of the parties to give personal security on the note as an independent security in lieu of the vendor's lien, but was intended to be, in effect, a cumulative, or an additional security, which the parties had an undoubted right to contract for.

Holding such to be the case, it follows that the vendor's lien was not waived by the personal security given for the purchase money, and that the court below properly decreed in favor of plaintiff.

Let the decree be affirmed and the cause be remanded that the decree may be executed.


source: Caselaw Access Project

author: Walker, J:

license: Public Domain

text:
    O’Bannon vs. Ragan.
    1. Appeal. Construction of Act of 1873 regulating appeals from justices of the peace.

    The act of April 29th, 1873, reducing the time for an appeal from the judgment of a justice of the peace from sixty to thirty days, did not apply to proceedings in which judgment had been previously rendered.
    2. -. A constitutional right which cannot be destroyed.

    The Legislature cannot so limit the time within which an appeal shall be taken as to render it impracticable for parties to perfect their appeals within the time prescribed.
    APPEAL from Arkansas Circuit Court.
    Hon. P. C. Dooley, Circuit Judge.
    By O’Bannon, appellant.

      Argued that, at the date of the judgment before the justice, when the appeal was prayed and granted, no affidavit was necessary. The act of 1873 was not approved until 29th of April. The appeal was properly perfected under the laws in force when taken.

      Dooly for appellee.
    Cited act of 29th April, 1873, which repealed all practice acts then in force, applying to cases like this in justices’ courts. This act required an affidavit on appeal.
    The bond should have been entered into before the justice— this was before the clerk. The appeal was not taken in thirty days after judgment. The old law was then repealed. It did not give a vested right to appeal on all judgments rendered. The new act did not take away the general right; only prescribed the mode and limited the time. Cooley’s Const. Lim., p. 384; ex parte MeOardle, 7 Wall, 507.'
   Walker, J:

On the 7th of April, 1873, Ragan recovered a judgment before a justice of the peace. On the same day, O’Bannon prayed an appeal which was granted. On the 19th of May, 1873, the transcript of the record before the justice was filed in the Circuit Court, upon an order from the Circuit Court to the justice before whom the case was tried, reciting that an appeal had been granted, and requiring the justice to certify the papers and record of the case to the Circuit Court. On the 31st October, 1873, Reagan filed a motion to discharge the appeal, because there was no affidavit showing that the appeal was not taken for delay, but that justice might be done. The court sustained the motion and dismissed the appeal. O’Bannon appealed.

The correctness of the decision of the court in dismissing the appeal is the only question to be determined.

At the time the judgment was rendered, the code practice was in force, under which it was not necessary to file an affidavit, that the appeal was not taken for delay , but upon filing a transcript of the judgment of the justice with the clerk, and the execution of a bond with security, the clerk shall issue an order to the justice to stay proceedings, and send to the Circuit Court a transcript of the judgment and proceedings had before him.

All this appears to have been done. But between the time of the rendition of the judgment by the justice of the ' peace, on the 7th of April, 1873, and the granting of the appeal by the clerk of the Circuit Court, on the 19th of May, 1873, an act of the Legislature, approved 29th April, 1873, was passed, which repealed the code practice, and required that an appeal might be granted by the justice before whom the judgment was rendered, but required as a condition precedent to the grant of the appeal, that the appellant, or some one for him, should make and file with the justice an affidavit that the appeal was not taken for delay, but that justice might be done. Sec. 3281, Gantt’s Big. The same section provides that no appeal shall be allowed, unless this pre-requisite is complied with.

The code practice, under which the appeal was taken, was repealed on 29th April? 1873, and as the appeal was taken on the 19th May, 1873, it must of necessity have been taken under the latter act, if in all respects constitutional, as there was then no other law in force. The effect of the repeal of the code practice was to obliterate it as completely as if it never had passed. Sedgwick, 129. The repeal of the code practice did not take from the party aggrieved the right to appeal, but conferred the right upon the justice, before whom the judgment was taken, to grant the appeal, and required as a condition precedent to the granting of the appeal, that the party who asked it should make affidavit that the appeal was not taken for delay, but that justice might be done.

Tbe thirty days allowed by the statute, in which to take the appeal, had not expired when the act passed, by eight days; and as the act took effect from its passage, left but a short time in which to comply with the requisites of the act.

It is quite probable that the appellant acted in ignorance of the_¿ fact that the code practice had been repealed, and this presents a hardship — the result of legislation — which we would, if possible, mitigate by holding the operation of the act prospective, and not intended to affect the suits commenced, or the right of appeal from judgments rendered under the code practice. But the effect of the repeal will not permit us to do so. Sedgwick says, that the repealed statute must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded whilst it was an existing law.-” And as this suit was not concluded when the repealing act passed, it does not come within the exception.

The question then is reduced to this, was the right of appeal, which was a constitutional right, so impaired • by the repeal of the code provisions, which gave to the party sixty days in which to take his appeal, and the substitution in its place of thirty days, in effect in this case a denial of the exercise of this right? This thirty days was the time proposed as applicable to all cases, a limitation which the Legislature most clearly had the right to make, nor should we question the power of the Legislature to fix the time for taking an appeal to eight days, if such could be supposed its intention, unless it should in effect be a denial of the right of appeal. But suppose that the thirty days from the date of the judgment had expired at the time the act passed, as the party seeking to appeal had sixty days in which to take his appeal under the code practice, which by force of the act of repeal was cut off, and as he could not appeal under the act of 29th April, because the thirty days had expired. In such a case the remedy would be cut off entirely, and we should hold the act unconstitutional as depriving the party of the constitutional right of appeal. But in the case under consideration, there was some time, after the passage of the act of 29th April, in which to take the appeal. The question is, was it a sufficient time in which to assert his right to appeal ? If the act had been promulgated at the time of its passage, there would have been eight' days left before the thirty days expired. Was this a reasonable time in which to taire the appeal. The Legislature had given thirty days as the proper time, certainly it was not intended to give a shorter time. The time given was a little more than one-fourth of the time intended to be given after the act had been promulgated. But in this instance such was not the case. The litigants resided in a county remote from the capitol. We have said the Legislature could not deprive a suitor of the right to appeal. So this court held in Anthony, ex parte, 5 Ark., 358, and Pope’s Ex. v. Ashley, Ex., 13 Ark., 262. And upon principle we think the time should be such as to afford the party a reasonable opportunity to assert this constitutional right; for to deny it, is in effect to afford no time whatever.

When considering the case before us in all its bearings, we do not believe that the Legislature intended^the act to apply to suits brought, and upon which judgments had been rendered, and if it did, that it had not the constitutional power to so limit the time for an appeal as in effect to deny the right of appeal in cases like the present, and consequently that the acts of 29th April, in so far as it tended to deprive the suitor of a reasonable time in which to comply with its provisions, was an invasion of the constitutional right of appeal, and that the act was inoperative in this and like cases, and so, that in fact, to this extent the practice under the statute in force at the time the act 29th April passed, remained in force, and that the appellant had a right to appeal without the affidavit required by the act of 29th April.

The court below erred in dismissing the appeal; let the judgment be reversed and the case remanded.


author: Harrison, J.:

text:
    Turner vs. Baker.
    1. Exceptions: To the rejection of evidence.

    'Where, upon exceptions to the rejection of evidence, only the conclusions to be drawn from the evidence are stated, this court will presume in favor of the ruling of the court below.
    2. Contract: Mutuality.

    Where A proposes to teach a school if sixty pupils are subscribed and B subscribes two scholars, neither is bound unless the requisite number are subscribed, although A may have taught the school, and in fact have had more than sixty pupils.
    3. Evidence: Parol inadmissible to vary writing.

    Where a contract is reduced to writing it is the only evidence of the intention of the parties.
    4. Contract: Entirety.

    A contract to teach a school for ten months at a given rate per month, is entire, and no part of the consideration is payable, or can be recovered before the end of the term.

      5..-Alteration.

    If one of the parties to a contract attempts to vary or change its terms, the other is thereby released and an unintentional part performance, which is withdrawn as soon as discovered, will not imply an assent to the change.

      6.-Signing of school subscription.

    It is not necessary that both the parties to a school subscription should sign the articles. When it is signed by the one who subscribed the pupils it is binding on both.
    APPEAL from White Circuit Court.
    Hon. John Whytock, Circuit Judge.

      J. M. Moore for appellant.

      The exhibit of the contract shows no mutuality and overrules the averment that plaintiff was bound. Newman’s (Ky.) PI. & Pr. 252 and cases cited. No consideration as to complainant, 2 Parson’s Con. No value of services shown rendered at defendant’s request.
    Plaintiff changed the contract, without showing assent of defendant.
    For these reasons the demurrer should have been sustained.
    The court erred in refusing to admit the proposed evidence regarding plaintiff’s conduct in taking possession of the schoolhouse, etc., as it tended to show him unfit to discharge the duties of a teacher. There was an implied contract of fitness. Story on Con., sec. 737; Story on Bailments, 437.
    The instructions for plaintiff were erroneous. The action was for value of services rendered. It should have been for preventing plaintiff from performing. 1 Par. on Con., 527 and note v.
    They also justified the departure from the contract on the part of plaintiff; also erroneous in authorizing the jury to find a usage, of which there was no proof.
    Defendant’s instructions should have been given. 1 Parsons on Con., 399, 70 and 73. He did not authorize subscription to a ten months’ school. Story Agency, 60 and 77. The contract was entire. Davis v. Maxwell, 12 Met., 286. Beub v. Moor, 19 John, 337. Jackson v. Jones, 22 Ark., 158. Berry v. Diamond, 19 Ark., 262.
    No part was demandable till the end of the term. 2 Parsons on Con., 34; Davis v. Maxwell, supra.

    The instruction for plaintiff misstates the rule of damages. Walworth v. Pool, 9 Árk., 394.

      To illustrate tlxe distinction in damages, between price of services rendered, and loss from being prevented from rendering them, see Walworth v. Pool, 9 Arlr., 394; Shannon & Com-stock, 21 Wendell, 457.

      Coody & McRea, for appellee.
    The whole matter presents a question of fact, which was submitted to a jury. The court will not reverse a verdict sustained by proof. Rose’s Digest, p. 559, sec. 4, 5, 6; 26, Ark., 309; 25 Ark., 49.
    A party electing to plead in a suit begun before a magistrate is bound by the rules of pleading Bellows v. Cheek, 20 Ark., 424; 6 Ark., 450.
    Failure to answer, was confession. Code sec. 146. The complaint must stand, on general demurrer, if the facts would constitute cause of action by any manner of stating them. 2 Ark., 128; 18 Ark., 286; 11 Ark., 12; 6 Ark., 215.
    The evidence was properly excluded. 1 Greenleaf, sec. 50, 51, 52; 7 Ark., 470; 8 Ark., 49.
    Character is not involved in an issue upon contract. Green-leaf on Ev., secs. 54-56; 6 Cowen, 675. Isolated acts cannot be shown to affect character. Greenleaf on Ev., sec. 55; 11 John, 38; 7 Cowen, 613; 2 Nott & McCord, 511; 10 Cush., 183; 11 ib., 4241-5.
    In support of instructions given for appellee. 5 Am. Repts., 51; Justus v. Garvey, 53 111., 401; 7 Am. Repts., 268; Cooper v. MeCrummin, 33 Texas, 383; Hopkins v. TJpsher, 20 Texas, 89; 24 Texas, 200; 43 111., 356; 4 N. H., 535. Appellant’s instructions properly refused. Story’s Agency, sec. 89; Brook v. Perry, 23 Ark., 32 and 289; 5 Ark., 672; 13 Ark., 125; 15 Ark., 543; 20 Ark.,' 293.
    Not necessary for both parties to sign the contract. Evidence of usage as to school sessions was properly admitted to the jury. 1 Greenleaf s Ev., sec. 292; 2 ib., sec. 251, and authorities cited ; 5 Ad. and El., 303, U. S.; 15 M. and W., 737.
   Harrison, J.:

The appellee sued the appellant before a justice of the peace,, as one of the subscribers to the following agreement:

To a school of ten months, to be taught by B. P. Baker, at the town of Searcy, commencing on the second Monday in January, 1871, we, the undersigned, do hereby subscribe the number of pupils affixed to each of our names, at the following rates of tuition, to-wit:

Spelling, Readings Writing, Primary Grammar, Primary Arithmetic, Primary Geography, each or all per month.$3 00
Practical Grammar, Practical Arithmetic, Familiar Seience,
Advanced Geography, each or all per month............... 4 00-
Rhetoric, Mental and Moral Science, Algebra, Geometry,
Trigonometry, Latin, Greek, each or all per month...... 5 00
Music on Piano, per month........................................ 5 00

The appellant subscribed two pupils.

The plaintiff, upon the trial before the justice, recovered judgment for seventy dollars, the amount claimed, and the defendant appealed to the Circuit Court, where, upon a trial anew, the plaintiff again recovered the same sum.

It was proven that the plaintiff, having leased a house — the Female Academy — for the purpose, taught the school in accordance with the terms of the agreement, dividing the term, however, into two sessions of five months each — the first of which, commenced on the second Monday, the 9th day of January, and the second, on the first Monday, the 4th day of September, 1871.

That previous to the commencement of the school he published the following circular:

SEARCY FEMALE INSTITUTE.

The spring session of this institution will open on Monday, the 9th day of January, 1871, and the Fall session on Monday, the 4th day of September, 1871. The course of study will be as extensive and varied as will be found in any institution of similar grade, and the Text Books the most improved in use. Faculty — B. P. Baker, Principal and Professor of Ancient Languages and Mathematics. Mrs. Fannie B. Thompson, Principal of Primary Department and Teacher of French. Mrs. Bettie M. Baker, Principal of the Department of Instrumental and "Vocal Music.

Terms — Per session of five months :

First Department...................................................$15 00
Second Department.......................... 20 00
Third Department................................................. 25 00
EXTRA.
French............................................................... 25 00
Music, Piano........................................................ 25 00
Use of Instrument................................................. 5 00

Incidental fee $1, in advance.

These terms will bo required invariably, one-half in advance, the other half at the close of the session.

Pupils will be charged from time of entrance to close of session, except in cases of protracted sickness. Punctual attendance at the opening of the session is important to all concerned.

Board can be had in private families at from $14 to $15 per month. For further particulars, address

B. P. Baker, Principal.
Searcy, Ark.”

That the defendant did not sign the paper himself, or read, or even see it, bnfc authorized the plaintiff’s agent, seeking to make up the school, and having the same, to make the subscription for him, who at the time told the defendant that the plaintiff would teach the school iS*áhcty pupils were subscribed. That no more than fifty-six pupils were oversubscribed, but that the plaintiffhad more than sixty in his school. That at the commencement of the school, two of the defendant’s children, in his absence from home, and without his knowledge or consent, entered as pupils, one in the primary, and one in the intermediate department, but, upon his return, were immediately withdrawn, and never, after the second day, again attended. For the two days they attended the defendant offered to pay the plaintiff according to the rate of tuition for the term, but he declined to accept the money. Some evidence of the customary length of a school term was given, which it is not necessary to state.

The defendant offered to prove, also, that previous to his engaging to send his children to the plaintiff’s school, the plaintiff) whom the defendant had never seen, was represented to him by his agent, and by one or more interested in getting up the school, as a refined gentleman, a superior teacher, and an excellent’ disciplinarian, and entirely free from religious bigotry and sectarianism, and as liberal and courteous towards all religious denominations. That for more than twelve months next before the plaintiff commenced his school, the Baptist church in Searcy had, on the Sabbath days, been occupying the Female Academy (in which the school was taught) for preaching, prayer meeting, and teaching/Sabbath-school, by common consent of the trustees, the entire community, and the teachers of the literary school, who preceded plaintiff, and without objection from any one. That they had no other house in which to worship or teach Sunday-school in the town, and there was no other suitable or comfortable house in the town that they could obtain. That a few days before the plaintiff commenced his school he procured, from a member and officer of the church, the key to the academy, under the pretense of repairing the house for the opening of his school, giving no notice or intimation of an intention to exclude the church and its Sunday-school from the house. That the following Sabbath morning the Sunday-school, including ladies, gentlemen, youths and children, assembled as usual at the house to hold Sunday-school, and finding the doors locked, sent to the plaintiff for the key, not suspecting a refusal, as they nor any of them had received any notice of such intention on his part. That he rudely and contemptuously refused to send the key, and himself followed the messengers to the academy, and informed the school that if they wished to get their books out of the house they could have the key for that purpose, but could not teach Sunday-school therein. That a member and officer of the church and Sunday-school attempted gently to l’emonstrate with him, saying that he very much regretted the course he was pursuing; that they (the Baptists) had expected to unite on him and endeavor to build up a good school, but his course was not calculated to effect that object; that it was true the Baptists were in the minority, but still had some influence in the community. To which the plaintiff contemptuously replied that he did not regard their influence, and after other unprovoked, rude and offensive remarks, left, leaving the school to disperse and return to their homes ; and that the plaintiff well knew at the time there was not another suitable or comfortable house in the town that could be obtained by the church for worship or Sunday-school, and that he never afterwards admitted them into the house, nor made any amends for his conduct. And that the defendant was a member and officer of the church, and superintendent of the Sunday-school; his wife also was a member of the church and teacher in the school, and his children pupils therein.

The refusal to admit this evidence formed one of the grounds of a motion for a new trial, and is assigned as an error of the court.

Whilst it is a clear proposition that whoever contracts for any particular employment or service impliedly warrants himself to be a 'fit person to discharge the duties thereof, and this fitness may require moral qualifications, as well as mental or physical, we can see nothing in the evidence excluded tending to show that the plaintiff did not possess all the requisites, moral, as well as intellectual, of a competent and proper teacher of youth. His refusal to allow the academy he had procured to teach in to be occupied for religious worship and Sabbath-school on Sundays, though, perhaps, under the circumstances, seemingly discourteous, may have been a measure of proper prudence to protect the interests of himself and pupils. He had the legal right to do so, and neither did the exercise of such right, though there might have been no obvious or apparent reason for it, nor the remark made by him, when told that the Baptists, though in the minority, still had some influence in the community, that he did not regal’d their influence, a remark not in the least derogatory to that highly respectable denomination of Christians, evince a character different from that he was represented to the plaintiff to possess (which representations were not, however, of the nature of a guarantee), or betoken such moral obliquity as would discharge the defendant from the performance, on his part, of the contract, if one existed between them. We are not informed what the other alleged offensive remarks were, or in what the rude and contemptuous conduct consisted, and are unable to understand what was intended to be proved, and as facts, and not conclusions which might be drawn from them, only were admissible in evidence, we must presume in favor of the ruling of the court below. There was no error in the refusal to allow the defendant to make the proposed proof.

The court, at the request of the plaintiff, instructed the jury, if they found from the evidence that the defendant subscribed or authorized the subscription of two pupils to the school article circulated by the plaintiff for a ten months’ school, to be taught in the town of Searcy, at the rates therein stated, commencing on the day therein named, and that the plaintiff did commence and teach the school for ten months, Lo find for the plaintiff the price of the tuition of the pupils subscribed in the departments they entered, although the school was divided into two sessions of five months each, and the defendant refused to send them, if they also found a usage of the country allo wing such a division of the term into two sessions.

The court seems to have overlooked the fact that the plaintiff did not obligate himself to teach unless sixty pupils were subscribed, and that they were never subscribed. It was the understanding of both parties that the plaintiff did not agree and was not bound to teach unless sixty pupils were subscribed, or, in other words, his assent to the agreement depended upon that contingency. The plaintiff not being bound, the defendant was not, for the contract must be binding on both parties at the time when made, else one party would be without a valid and available consideration for his promise. And until the contingency happened upon which the plaintiff’s assent depended, each had the right of revision, and it was the condition of the assent of the one as well as the other.

“A mere offer, not assented to, constitutes no contract, for there must be not only a proposal, but an acceptance thereof.” Sto. on Con., sec. 378; 1 Par. on Con., 475; McKinley v. Watkins, 13 Ill., 140; Esmay v. Groton, 18 Ill., 483; Tucker v. Woods, 12 John, 190; Brown v. Rice, 29 Mo., 322; Shupe v. Galbraith, 32 Pa. 10; Cook v. Oxley, 3 Term B., 653; Eskridge v. Glover, 5 Stew, and Port, 264.

As the contingency upon which the assent of the parties depended never happened, there was no contract, and the plaintiffs teaching the school imposed no obligation upon the defendant to pay for the pupils he had subscribed.

In the case of McKinley v. Watkins, above cited, the plaintiff and defendant had some years before traded horses, afterwards a dispute arose between them about the trade, and the plaintiff threatened to sue unless the defendant would give him a horse— or the worth of the horse the plaintiff had got from the defendant — the horse which the plaintiff had received in exchange having died. The defendant promised that if the plaintiff would not sue he would give him fifty dollars, or a horse worth that sum. The action was brought to recover the fifty dollars. The court held that the promise of the defendant to pay the fifty dollars, if the plaintiff would not sue, not having been accepted, the plaintiff could not maintain the action.

In the case of Cook v. Oxley, 3 Term. R., 653, the defendant offered to sell the plaintiff two hundred and sixty hogsheads of tobacco, and gave him until four o’clock in the afternoon to determine whether he would buy them or not. The plaintiff notified the defendant before that hour that he would take them, but the defendant refused to deliver them.. It was held that the defendant was not liable for not delivering the tobacco, for the plaintiff, not being bound by the original contract, there was no consideration to bind the defendant. Lord Kenyon, C. J., said: “Nothing can be clearer than that at the time of entering into this contract the engagement was all on one side, it was therefore nudum pactum.” Butler, J., said: . “In order .to sustain a promise there must be either a damage to the plaintiff or an advantage to the defendant; here was neither, when the contract was first made. Then as to the subsequent time the promise can only be supported on the ground of a new contract made at four o’clock, but there is no pretense for that. It has been argued that this must be taken to be a complete sale from the time when, the consideration was complied with, but it was not complied with, for it is not stated that the defendant did agree at four o’clock to the terms of the sale;” and Grove, J., said: “The agreement was not binding on the plaintiff before four o’clock, and it is not stated that the parties came to any subsequent agreement, there is therefore no consideration for the promise.”

The instruction, assuming that the subscription was a complete contract between the parties was erroneous, and should hot have been given.

The defendant asked seven instructions, the fourth and seventh the court gave, but refused the others. Those refused are as follows :

First — If at the time defendant authorized the plaintiff’s agent to subscribe his name to the school subscription, he believed and had reason to believe that it was a subscription for a session of five months and did not know it was a subscription for ten months, then said agent was not authorized to subscribe his name for a ten months’ school, and the defendant is not bound thereby; and, if it was the common custom of the community for schools to be taught for a term of five months .only, and the defendant was not informed by plaintiff’s agent, nor otherwise, that this was to be a school of ten months, you will find that the defendant did have reason to believe it was a school of five months, and gave no authority to said agent to subscribe his children for ten months.

Second — The contract is entire and not apportionable, no part of the compensation is deman dable or payable until the end of the term for which plaintiff was to teach, and if, after making the contract, he changed the terms on which he would teach by requiring payment at different and earlier dates, or by adding new conditions, not expressed in the subscription, he cannot recover unless he has proven that the defendant assented to such change.

Third — If defendant’s children went to plaintiff’s school without his knowledge or consent, and defendant, on finding them there, immediately stopped them, this was no assent to the changed contract and did not bind the defendant.

Fifth — Unless at the time the defendant authorized the subscription of the two pupils, the duration of the school, or the price of tuition, or the time of payment was expressed, then it was an agreement on the defendant’s part to send to only such school, and on such terms as to price and time of payment as was customary for schools taught in that community, and before plaintiff can recover he must prove that the terms, the price charged, and the time of payment, were according to the custom for such schools in the community.

Sixth — Unless both parties are bound by the contract sued on, neither is, and unless the plaintiff, as well as the defendant, signed it, the defendant is not bound.

There is no rule of law more familiar than that the terms of a written contract cannot be changed or varied by parol evidence.

The subscription itself is the only evidence of the intention of the parties, and, if otherwise valid as an agreement, the defendant was bound by it, notwithstanding he supposed such a school only was intended as was customary in the community.

The first and fifth of these instructions, which were substantially the same, did not therefore embody correct propositions of law and were properly refused.

The second and third we think were unobjectionable and should have been given. The defendant could not be bpund by a contract to which he had not assented.

Whilst it is certainly true that unless both parties were bound neither was, it does not follow that to bind both each should have signed the article of subscription. The sixth was not therefore improperly refused.

The verdict was not sustained by the evidence. The proof shows that sixty pupils were never subscribed, and the'contract never became complete, and the plaintiff had no cause of action against the defendant. The defendant should, as moved for by him, have had a new trial.

The judgment is therefore reversed, with instructions to grant the defendant a new trial.


author: English, Ch. J:

text:
    Berry, adx. et al. vs. Bellows, ad.
    1. Constitution op 1861:
    The provisions of the Constitution of 1861, except in so far as they were hostile to the Federal government, and the acts of the different branches of the State goverement thereunder, notin aid of the Confederate government, were valid, and could not be invalidated by the action of a subsequent Constitutional Convention. The doctrine of Hawkins v. Mlkins, 24 Ark., 286, re-affirmed, and subsequent cases overruled.
    2. Administration: Grant of during war.

    Letters of administration granted in this State in 1862, and while the Confederate government was in operation, held valid.
    3. Administration: Revocation of letters.

    Where, during the late war, an administrator enlisted in the army, abandoning his home and business, it was in the discretion of the Probate Court to revoke his letters, and the appointment of another administrator on that ground was an implied revocation.
    4. Payment: In Confederate money.

    The payment of a debt, in Confederate money, made and accepted in good faith at the time and place where it was current, discharged the debt.

      5.--: To an administrator when not valid.

    The payment to ¿.n administratrix, in Confederate money, of a debt that was secured by a vendor’s lien ; it not appearing that Confederate money was received in ordinary business transactions at the time and place of payment, and it appearing that the money so paid remained in her hands at the close of the war ; held insufficient to discharge the indebtedness.
    APPEAL from Crittenden Circuit Court in Chancery.

      B. C Brown, for appellants.
    The appointment of Mrs. Bellows as administratrix was equivalent to a judicial finding that Ellis’ letters were forfeited. Broom’s Legal Maxims, 729.
    The decisions in Penn v. Tolleson, 26 Ark., 546, and others on the same line, holding void the acts of the courts after May 6, 1861, are questioned. The courts and officers are to be held as having acted under authority of the Constitution of 1836. The acts of the Convention of 1861 were void.
    Sec. 25 of the Bill of Rights of the Constitution .of 1868 could not change existing facts, or make void valid acts. Lawson v. Jeffries, 47 Miss. R. 686, also, Hefferman v. Porter, 6 Cold., 391; Sutton v. Tilles, Id., 593; Wingfield v. Crosby, 5 Cold., 241; West v, 1 hompson & State, Ex. Rel.; Cain v. Hall, Tenn. Mss. Opinions; White v. Cannon, 6 Wallace, 443; Texas v. White, 7 Id., 733; Cooper v. Moore, 44 Miss., 386; Burden v. Curhart, 41 Ga., 76.
    Payment in Confederate money was good, Boyd v. Perkins, 4 Heis, 364; Cockrellv. Wiley, Id», 472; Coleman v. Wingfield, Id., 173; Turner v. Collier, Id., 89; Vance v. Smith, 2 Id., 344; McBroome v. Wiley, Id., 58; Cross v. Lilis, 1 Id., 83; Naff v. Ch'awford, Id., Ill; Sherfiy v. Argenbright, Id., 128; Montgomery v. Carr, 6 Cold., 199; James v. Thomas, 5 Cold., 465; Bavis v. M. C. R. R., 46 Miss., 552 ; Mesieux v. McGraw,’ 44 Miss. 100; Gilliam v. Brown, 43 Miss., 641; Williams v. Williams,
      Id., 430; Oreen v. Lign, 41 Miss., 530; McMath v. Johnson, Id., 439; Boyd v. Lalis, 39 Ga., 72 ; Jephson v. Patrick, Id., 569 ; King v. King, 37 Ga., 205.
    See also act of April 5, 1873, Pam. Acts, p. 77.
   English, Ch. J:

The original bill in this case was filed in September, 1866, on the chancery side of the Crittenden Circuit Court, by Henry W. Ellis, claiming to be the administrator of Quartus M. Bellows, deceased, against James G. Berry and Oliver P. Lyle.

After the original bill and answer were filed, ¥m. R. Bellows, the appellee, who seems to have been appointed admistrator de bonis non of Quartus M. Bellows, filed a supplemental bill, correcting an error in the original bill, stating additional facts, etc. The object of the original bill was to enforce a vendor’s lien for balance of purchase money alleged to be unpaid. The supplemental bill alleged that the land on which the lien was claimed, had been sold, after the suit was commenced, to satisfy a prior lien, which Berry and Lyle had agreed to discharge when they purchased the land of Quartus M. Bellows, but had failed to do so, and prayed for a general decree against them for an alleged balance of purchase money, evidenced by three notes. The defense of Berry and Lyle was, that they had paid the notes to a former administratrix of the vendor, in Confederate money, and taken them up. The court below treating this payment as invalid, rendered a decree against them personally, for the amount found fo be due upon the notes, principal and interest.

After the deeree was rendered, it seems that Berry died, and Lizzie T. Berry, who became his admiuistratrix, joined with Lyle in obtaining the allowance of an appeal by the clerk of this court.

The defense interposed in the court below, involves three questions:

First — Whether the order of the'Probate Court of Crittenden county, appointing Mrs. Ann W. Bellows, administratrix of Quartus M. Bellows, deceased, was void, because made on the 21st of January, 1862, and while the civil war was flagrant.

Second — Whether the order was void, because of other facts disclosed by the record, and which will be stated below ?

Third — -Whether, if her appointment was valid, the payment of the notes in controversy to her in Confederate Treasury certificates, was a valid discharge of the debt evidenced by the notes ?

The counsel for appellants has referred to the ■ curing act of April 5th, 1873, as an answer to the first-question. That act provides : “ That all the official acts of the clerks of the Probate Court, done and performed between the 6th day of May, 1861, and the 1st day of June, 1865, in relation to the administration and settlement of the estates of deceased persons, and in the appointment of guardians, and the settlements of their accounts, and also all acts of executors, administrators and guardians, done and performed, and all the orders, judgments and decrees of the Probate Courts, made and entered between the dates aforesaid, touching the estates of deceased persons, and matters of guardianship aforesaid, when the same have been done in accordance with the laws of the State, then in force, be and the same are hereby confirmed and made valid.” Pamphlet acts, 1873, p. 77.

This act might, perhaps, be an answer, to the first question but for section 25, article 1, of the Constitution of 1868, which was in force when the act was passed, and which section declares that “the-action of the convention the State of Arkansas, which assembled in the city of Little Rock on the fourth (4th) day of March, A. D. 1861, was and is null and void. All the action of the State of Arkansas, under the authority of said convention, of its ordinances, or its constitution, whether legislative, executive, judicial or military, was and is hereby declared null and void ; and no debt or liability of the State of Arkansas incurred by the action of said convention, or of the General Assembly, or any department of the government under the authority of either, shall ever be recognized as obligatory: Provided, That this ordinance shall not be so construed as to affect the rig’hts of private individuals arising under contracts between the parties, or to change county boundaries, or county seats, or to make invalid acts of justices of the peace, or other officers, in their authority to administer oaths, or take and certify the acknowledgment of deeds of conveyance, or other instruments of writing, or in the solemnities of marriage.”

If the effect of this clause of the Constitution of 1868 was to make null and void the order of the Probate Court in question, then the act of 5th of April, 1873, could not cure or impart validity to the order. But had the convention of 1868 power to make null and void, ab initio, the Constitution of 1861, the government organized under it, and the acts of all its officers, legislative, executive and judicial, with the exceptions named in the above clause ? We think not. A similar clause was contained in the preamble of the Constitution of 1864, which this court, in an elaborate and well considered opinion by Mr. Justice Walker, in Hawkins v. Filkins, 24 Ark., p. 286, construed and declared the legal effect of. It was there held that all the ordinances of the convention of 1861, and so much of the Constitution framed by it, and such acts of the State government organized under it, or of its officers, legislative, executive and judicial, as were in violation of the Constitution and laws of the United States, were void, whether declared so-to be by the convention of 1864 or not; and that such as were not in conflict with the Constitution and laws of the United States were valid • and that it was not in the power of that convention to make null and void from the beginning such as were valid. Such was the substance and effect of the decision referred to. The particu-, lar matter involved in that suit was the validity of a judgment of the Pulaski Circuit Court, rendered at the September term, 1861, and it was held valid, notwithstanding the seeming declaration to the contrary in the preamble to the Constitution of 1864.

Conventions are not omnipotent. The Constitution of the United States is above them, and limits their powers. They must provide for governments republican in form. They cannot impair the obligation of contracts, or make ex post facto laws.

Moreover, the delegates to a convention are the representatives, the agents of the people. The source from which they derive their authority, and the purposes for which they assemble, imply, in the American theory of governments, limitations upon their powers. They assemble to frame a form of government for the protection of their constituents in the enjoyment of life, liberty, property, and the pursuit of happiness, and they have no power to subvert these great rights, and defeat the very purposes for which they assemble.

The convention of 1861, it is now conceded, violated the Constitution of the United States in passing the ordinance of secession, and in attempting to transfer the allegiance of the people of the State from the Federal to the Confederate government, but if these grave errors made all other acts of the convention void, then, by a parity of reasoning, all of the acts of the convention of 1868 were void, for it made a gross attempt, in section 13, art. 15 of the Constitution framed by it, to impair the obligation of contracts. See White v. Hart, 13 Wallace, 646; Boyce v. Tabb, 18 Ib., 546.

If we are to treat section 25, of article 1, of the Constitution of 1868, as having the force and effect of constitutional law, then there was no valid civil government in this State from the time the ordinance of secession was passed until the ratification ■of the Constitution of 1864 (for its framers assembled without authority) a period of about three years, and the judgments and proceedings of the courts, and the rights that grew up under them during that time, were all made null and void, a proposition so monstrous and mischievous in its consequences as to shock the sense of justice of any reasonable and dispassionate mind.

The convention of 1668 had no more power to make void the valid acts of the convention of 1861, than the convention of 1874 had power to render invalid and inoperative from the beginning the acts of the convention of 1868.

Legislatures may repeal laws, and conventions may abrogate constitutions and frame others, but neither can destroy facts which have transpired under laws or constitutions which were valid when passed or adopted. Individuals and associations of men may make, but they cannot unmake facts.

Rights completely vested' under valid contracts, or perfected by valid judicial proceedings under existing laws, are not to be destroyed by mere pronouncements of a convention, as was attempted by the convention of 1868. Fletcher v. Peck, 6 Cranch, 87.

In Horn v. Lockhart, 17 Wallace, 580, the Supreme Court of the United States said; “We admit that the acts of the several States in their individual capacities, and their different departments of government, executive, judicial and legislative, during the Avar, 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, in general, to be treated as valid and binding. The existence of a State of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted,, property protected, contracts enforced, marriages celebrated, estates settled, and transfer and descent of property regulated precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution,” etc.

This is in substance and effect just what this Court decided in Hawkins v. Elkins.

The former judges of this court, who sat under the Constitution of 1868 (except Mr. Justice Harrison), held in Penn et al. v. Tollison, 26 Ark., 545, that an order of publication made by the Circuit Court, to bring in a non-resident party, in September, 1861, was null and void, and in Thompson v. Manken, Ib., 586, that the service of a writ during the war was void; and in Timms v. Grace, Ib., 598, that a judgment of the Circuit Court rendered in October, 1861, was void; and the same in Carroll v. Boyd et al., 27 Ark., 183; and in Cowser et al. v. The State use, etc., Ib., 444, that an order of the Probate Court granting letters of administration, etc., was void ; and the same in Vinsant, ad. v. Knox, Ib., 266. In fact following the sweeping announcements of Mr. Chief Justice McClure in Penn v. Tollison, the court held that all judicial, as well as executive and legislative proceedings and acts of the State government, from the passage-of the ordinance of secession to the ratification of the Constitution of 1864, were null and void.

We do not propose to follow these- decisions. We prefer the more reasonable doctrine announced in Hawkins v. Filkins, and approved, in effect, by the Supreme- Court of the United States-in the case above quoted from, and other cases.

The grant of letters of administration to Mrs. Bellows, upon the estate of her deceased husband, by the Probate Court of Crittenden county, in January, 1862, was a very inoffensive act, and in no way promoted or aided the rebellion against the United States. The order was not therefore void because rendered during the war.

Second — Was the order void by reason of other facts disclosed by the transcript; in other words, for want of jurisdiction in the Probate Court?

■ It seems there were four grants of administration upon the. estate of Quartus M. Bellows, deceased; first to B. W. Bellows, February 22d, 1861; second, to Henry W. Ellis (who filed the original bill), on the 22d of October, .1861;' third, to Mrs. Ann W. Bellows, 21st of January, 1862, and fourth, to Wm. R. Bellows, the appellee, after this suit was commenced.

On the 21st of January, 1862, Mrs. Ann W. Bellows filed a petition in the Probate Court, addressed to the judge thereof, stating that Henry W. Ellis, the administrator de bonis non of the estate of Q,. M. Bellows, deceased, was then in the army of the Confederate States of America, and had left the estate without an administrator, and praying to be appointed administratrix, etc. Upon this petition the court appointed her administratrix, fixed the amount of her bond, which 'she gave, filed the affidavit required by the statute, and the letters were issued. What evidence was before the court when the order was made the transcript does not disclose, and we have no means of knowing. The order does not revoke the letters of Henry W. Ellis otherwise than by implication.

The court had a general jurisdiction of the estate. The statute authorized it to revoke letters for waste or mismanagement, etc. Gantt’s Dig., sec. 36. The petition of Mrs. Bellows did not aver .that Ellis was wasting or mismanaging the estate, but that he had become a soldier in the Confederate army and left, etc. In becoming a soldier he had lost control of his own time, and was liable to be sent from place to place by the orders of officers in command. He was not at liberty to remain at home, and give such attention to, and take such care of the estate as might be necessary to preserve it from waste.

Non-management, by absence as a soldier on duty in the field, remote from the estate, might be as disastrous as mismanagement. He might be absent and probably was, from the indications in the transcript, until the close of the war. He states in the bill that when about to leave, he placed in the hands of Mrs. Bellows, all of the private and valuable papers of the estate, including the notes in controversy. She was the widow of the deceased, and had the first right to administer under the statute. She was also guardian, by appointment, of her minor children. She could not legally collect the debts due the estate, or dispose of property, in the absence of Ellis, without taking out letters. Under the circumstances, we think the Probate Court had discretion and jurisdiction to revoke the letters of Ellis, and appoint Mrs. Bellows administratrix. It would have been more regular to revoke his letters directly in the order appointing her, but his letters were by implication revoked. Whether there were errors in making the order, for want of affidavit, evidence, proper notice, etc., such as would have been grounds for reversal on appeal, or other direct proceeding to review the order, we do not decide’ in this case. The bill avers that Berry contrived the appointment of Mrs. Bellows with the view of paying to her the notes in Confederate money, but this is possitively denied in the answer, and no proof was read at the hearing to sustain the allegation.

Third — As to the payment of the notes in Confederate money.

Berry paid the notes to Mrs. Bellows, after she administered, in Confederate money, and ■ she delivered up the notes to him. At the time of payment, Lyle, like Ellis, it seems, was away in the Confederate army.

The bill alleges that Mrs. Bellows declined to take the Confederate paper “ until Berry operating on her woman fears, and want of intelligence upon the subject, induced her to believe that said treasury notes were a legal tender for said debt, and perhaps that under the law of the State of Arkansas, she would be guilty of an offense if she did not receive them in payment of the notes, and, as orator was informed, thus influenced, she did receive of Berry the treasury certificates, and delivered up to him the notes,” etc. The bill was not verified by affidavit, and Berry, in his sworn answer, positively denies these allegations, and averred that Mrs. Bellows accepted the Confederate money voluntarily, and delivered up the notes.

The deposition of but one witness, on this subject, was read on the hearing. He states that when Berry offered the Confederate paper to Mrs. Bellows, she refused it because she thought it bad money; and that Berry told her the money was a legal tender, and if she refused it would stop the interest.

This suit was brought before the code of practice was adopted, and it required two witnesses, or one with strong corroborating circumstances to prove the allegations of the bill'against the sworn denials of the answer, under the former practice applicable to this case.

It must be assumed therefore, that Mrs. Bellows accepted the Confederate money in payment of the notes without fraud or duress.

The bill avers, and the ^ answer admits, that this payment was made at some time in the year 1863, but at what time of the year is not stated, nor does the only witness who was examined on the subject, state the time of the payment.

That Confederate money was at any time a legal tender in payment of debts — that creditors could be legally forced to accept it, no one pretends. Neither the Confederate nor the State government attempted to make it a legal tender. The people of the South were left at liberty to accept or decline it, in payment of debts, except in instances where military commanders attempted to force them to receive it.

Had Confederate money, at the time the payment in question was made, any value that can be recognized by the courts, or was it no more than so much blank or spurious paper? We will let the Supreme Court of the United States, whose loyalty to the Federal government has never, that we are aware of, been questioned, answer this question for us.

In Thorington v. Smith, 8 Wallace, the former sold to the latter, in November, 1864, at Montgomery, Alabama, land for $45,000, of which Smith paid $35,000 in Confederate money, the only currency then in circulation there, and gave his note for ten thousand dollars, payable one day after date, for balance of purchase money. After the close of the war, Thorington filed a bill to enforce a vendor’s lien upon the land for the unpaid purchase money evidenced by the note, and Smith was permitted to pi’ove that the sale was for Confederate money, and though the note on its face was payable in dollars, that it was the understanding and agreement of the parties, that the note was to be paid in Confederate money; and the District Court dismissed the bill on the grounds that the contract was illegal, etc. On appeal, the Supreme Court held that the contract could be enforced in the Courts of the United States; and that though the note on its face was payable in dollars, yet the word dollars should be interpreted in the light of circumstances existing at the time the contract was entered into, and that it was permissible to prove that the note was to be paid in Confederate dollars; and that it was a valid contract to the extent of the current value of such paper at the maturity of the note.

Chief Justice Chase, who delivered the opinion of the court, after determining how, and in what sense, the Confederate Government was to be regarded as a government de facto, said, “It was by this government exercising its power throughout an immense territory, that the Confedei’ate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent states. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities, for except in that event, there could be no payor. They bore, indeed, this character upon their face, for they were made payable only after the ratification of a treaty of peace between the Confederate States and the United States of America.” While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force.

“It seems to follow as a necessary consequence from this actual supremacy of the insurgent government as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign government, temporarily occupying a part of the territory of the United States. Contracts, stipulating for payments in this currency, cannot be regarded for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relation to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. Ve cannot doubt that such contracts should be enforced in the Courts of the United States, after the restoration of peace, to the extent of their just obligation.”

In Delmas v. Insurance Company, 14 Wallace, 661, on error to the Supreme Court of Louisiana, the Supreme Court of the United States, following Thorington v. Smith, held that the notes of the Confederacy actually circulating as money at the time a contract was made, might constitute a valid consideration for such contracts.

In that case, the consideration of a note made in New Orleans, was Confederate money. After the contract was made, an article in the Constitution of Louisiana was adopted, declaring “all agreements, the consideration of which was Confederate money, notes, or bonds, null and void, and that they should not be enforced in the courts of the States.” The Supreme Court of the United States held that the contract in question was valid, and that the article of the Constitution quoted was inoperative as impairing the obligation of contracts.

In Hanaur v. Woodruff, 15 Wallace, 448, Mr. Justice Field, reviewing the case of Thorington v. Smith, and distinguishing it from the ease before the court, said: “In the latter ease (Thorington v. Smith) the transaction was in a currency imposed by irresistible force upon the community, in which currency the commonest transactions in the daily life of millions of people, ■even in the minutest particulars, were carried on, and without the use of which there would have been no medium of exchange ■among them. The simplest purchase in the market of daily food would, without its use, have been attended with inconveniences which it is difficult to estimate. It would have been a cruel and ■oppressive judgment, if all the transactions of the many millions of people, composing the inhabitants of the insurrectionary ¡States for the several years of the war, had been tainted with illegality, because of the use of this forced currency, when those transactions were not made with any reference to the insurrectionary government.”

In Planters’ Bank v. Union Bank, 16 Wallace, 484, the latter bank was indebted to the former for Confederate money deposited, and collected, etc., which was not paid over on demand during the war. The court held that the Planters’ Bank ought not to be permitted to recover more than the damages sustained by it in consequence of the failure of the Union Bank to deliver Confederate notes when they were demanded, and that those damages were to be measured by the value of those notes in United States currency at the time when the demand was made, and when the notes should have been delivered. The suit was between the Planters’ Bank of- Tennessee and the Union Bank of Louisiana.

In the Confederate note ease, 19 Wallace, 555, Mr. Justice Field, reviewing the former decisions of the court, said: The treasury notes of the Confederate government were issued early in the war, and though never made a legal tender, they soon, to a large extent, took the place of coin in the insurgent States. Within a short period they became the principal currency in which business, in its multiplied forms, was there transacted. The simplest purchase of food in the market, as well as the largest dealings of. merchants, were generally made in this currency. Contracts thus made, not designed to aid the insurrectionary government, could not, therefore, without manifest injustice to the parties, be treated as invalid between them.”

Keppels ad. v. Petersburg Railroad Company 3 Am. L. R. 389, United States Circuit Court, Virginia, was a suit by the administrator of a stockholder of the company, who was a citizen or Pennsylvania, to compel the company, created by statutes of Virginia and North Carolina, and having its principal business office at Petersburg, to account for dividends declared by the company during the war. Chief Justice Chase, after deciding other questions, said: “At the time several of the dividends were declared, the chief currency, and when the others were declared, almost the entire currency of that part of the country in which the railroad was operated, was in Confederate notes, and whatever currency of bank notes there may have been in circulation, was of no greater real value. This currency may fairly be said to have been imposed on the country by irresistible force. There was no other in which the current daily transactions of business could be carried on, and there could be no other while the rebel government kept control of the rebel States. The necessity for using this currency was almost the same as the necessity to live. No protest, no resistance, no rejection could avail anything. - At the same time this currency, though it depreciated rapidly, had a sort of value. Its redemption, though improbable, was not impossible, and, until the downfall of the Confederacy, it had a greater or less degree of purchasing power. Under these circumstances, we cannot refuse to take notice of the fact that the dollars which the company received were not of either description of dollars recognized as lawful money by the United States; nor can we hold the officers of the company as incurring any liabilities to the stockholders by receiving the currency actually in circulation for its earnings, beyond that of prompt payment in the like currency to such stockholders as were in a situation to receive such payment, and payment as soon as practicable in currency of equivalent value to such as were resident in States, intercourse with which was, at the time, not only cut off by the civil war, but was also interdicted by the Congress of the United States.”

Though Confederate money became utterly valueless at the «lose of the war, when the government which issued it had fallen; yet during the war, in this State as well as in other Southern States, where it constituted the only currency in use, it had a value which, as shown by the above decisions, has been recognized by the courts of the United States.

A judge of the Court of Appeals of Virginia has well said that Confederate notes were never lawful money as a legal tender. They were never so declared to be'even by the laws of the Confederate States. They were a substitute for money, like bank notes; and, like them, were only a commodity — they had a purchasing value. Buckner v. Dearing, 2 Am. L. R., 786.

In Jones v. The City of Little Rock, 25 Ark., 303, this court held (opinion by Mr. Justice Gregg) that small bonds issued by the city in the resemblance of greenbacks, to circulate as money, were illegal, and that it was criminal to issue them, yet, notwithstanding this decision, they continued to circulate in this community, in all its local business transactions, for four or five years after the decision was made, very nearly at par with the currency of the National Banks. They were made the medium of exchange in multiplied thousands of transactions, as was Confederate money in the same community during the war. They paid for labor, food, merchandise, farm produce, rent, purchased property and discharged debts. Is it now to be held that all contracts based upon this city money were illegal, and that debts paid by it Avere not extinguished ?

It may be safely asserted that no court entitled to respect would now decide that when a creditor, acting for himself, accepted Confederate money in payment of a debt at any time during the war, when, and in a Southern State, where it circulated as currency, such payment did not extinguish the debt.

But Mrs. Bellows was an administratrix, and accepted Confederate money in payment of notes executed to her deceased husband, for whose estate she was acting as trustee. Was such a debt, so paid, extinguished in whole or in part, or was the payment a mere nullity, as seems to have been held by the court below? In Hendry, adm’r, v. Cline et al., 29 Ark., 114) we held that such a payment to an administrator extinguished the debt, but in that case it appeared that the administrator used the Confederate money received of the debtor in payment of the debts of the estate, and thereby creditors sustained no loss.

In this case the bill does not aver what disposition the administratrix made of the Confederate money received by her in payment of the notes, nor that there were any creditors, nor that the estate was insolvent. Nor does the answer state what disposition she made of the money, but it avers that the estate was solvent, and that she was entitled to one-third of the money for dower. But the allegations of the answer, it seems from the recitals in the decree, were put in issue by replication, and no evidence was introduced at the hearing as to the solvency of the estate, or the existence of debts against it. By the statute in force at the time the notes were paid, the widow was entitled' to dower in the choses in action, subject to debts of the estate, Act 21st February, 1859, which was amended, after the payment, by act of March 8th, 1867, by striking out the words, “Subject to his debts.” Acts of 1866, p. 277.

"We are not at liberty to assume, in the absence of proof, that the estate owed no debts, and that the administratrix was entitled, as widow, to one-third of the choses in action for dower, but will treat the entire payment in question as if made to the administratrix in her representative character.

In King, ex'r, v. Fleece et al., 7 Heiskell, 275, the Supreme Court of Tennessee said: “ It admits of no doubt that if Confederate treasury notes were received by the owner of a note, or other obligation, voluntarily in payment thereof, this would be

a good payment, and discharge the obligor. On the other hand, it is equally well settled, that if payment be made to an agent of the holder, in the absence of special authority, either expressly given or fairly to be implied, the agent will not be authorized to bind his principal by the receipt of Confederate money, and if he assume to receive the same in payment of the debt, the obligor will not be discharged.” Citing Scruggs v. Lester, 1 Heisk., 15; 4 Humph., 444-46; ib., 62.

By a statute of Tennessee, it was made the duty of the clerks of the several courts to receive the amount of any judgment or decree rendered in the court of which they were clerks, either before or after execution issued. In November, 18.62, the clerk of the Circuit Court of Marshall county received payment of a judgment in Confederate money, and the question as to whether this was a valid payment of the judgment came before the Supreme Court of Tennessee, in H. and R. Douglas v. J. R. Neil et al., 7 Heiskell, 488. Mr. Justice Freeman, who delivered the opinion of the court, said: “ We held, in Turner v. Collier (4 Heisk., 89) that á sheriff, or other public officer, under the circumstances of the country in December, 1861, in a time of civil war, in the absence of instructions to the contrary, would be justified in receiving, on executions in his hands, what was passing current in the country in payment of debts. In this decision we followed two decisions of the Supreme Court of North Carolina, decided in 1866. * * * (Atkins v. Mooney, Phillips’ L. R., 32-33. Emerson v. Mallet, Phillips’ Eq. R., 236-37.) With the reasoning and conclusion of the case of Turner v. Collier, we are still satisfied, and adhere to it. It is true that that was the case of a sheriff with an execution in his hands, but the principle must be the same in cases of clerks, and public officers who, by virtue of their official position in those times, were required to collect and receive money in their official characters. The normal state of the country was broken up by the civil war, to which Tennessee was a party. A government was in existence, holding sway over the country, moulding and directing in aid of its policy all the powers and agencies not only of the various State governments which remained intact, but even the very currents of public opinion.

“We need not here go into a discussion of the particular chaiacter of that government, whether a simple government de faeto as defined by publicists, or a government of paramount force, as denominated by Chief Justice Chase, in Thorington v. Smith.

It was a government as a matter of fact, not a myth, and in the language of Chief Justice Chase, fits existence was maintained by active military power within the territory held by it/ against the authority of the Government of the United States, and while it existed, he says fit must necessarily be obeyed in civil matters by private citizens/ We know as a matter of history in our State that the Legislature of the State gave currency to Confederate notes by authorizing all tax collectors and revenue officers to receive those notes for State and County taxes, and for other revenue due the State and Counties; and the Bank of Tennessee was required, as the fiscal agent of the State, to receive these notes from such officers. This necessarily, while the State remained in the hands of the Confederate forces, gave currency to this paper, and indicated distinctly the public policy of the State to be that these notes should pass as currency. In fact, by these acts, they were placed on a level with the notes of the Bank of Tennessee, which were receivable in payment of the public taxes of the State. In the language of the opinion of the court, in Turner v. Collier, fio require of public officers to collect on execution, or in discharge of official duties, in such funds as were insisted on in that case, gold and silver, or convertible bank paper, would have been to require an impossibility, and to hold such officers responsible for that which was impossible to have been done in these changed times, when circumstances were so different, would be such injustice as no court ought to sanction.”

“The notes of various banks of our State in other days were never a legal tender, but they were the currency of the country, accepted as such by the people, and of such universal use as currency, that the officer who received them, having no instructions to the contrary, was always held to have done so properly, and the debt to have been discharged and satisfied.

“The case of Boyd v. Sale, 30 Geo. R., 74, holds the doctrine we have thus laid down. The case was a payment to a Sheriff in 1863. The court say: ‘The defendant paid the amount due to the Sheriff in the only circulating medium in the country at the time. There was no notice given the Sheriff not to receive Confederate currency, nor to the defendant that such currency could not be received in payment of the debt. To protect himself against receiving the common currency of the country, it was his duty to give notice to the collecting officers, or to the party, not to receive it in payment of his demand/ In answer to the argument that it was a hard case on plaintiff, the court sayr ‘So it is; but on the other hand, if the defendant, the debtor, is required to pay it over again, it will be equally hard on him/ and they go on to add that no notice having been given not to pay in snch currency, and it having been paid in good faith, the debt was discharged. See also the case of King v. King, 37 Ga., 205; Campbell v. Miller et al., 38 Geo., 304; Hutchins v. Hullman, 34 Geo., 346. These authorities, we think, place the question on the true ground, both in reason and sound public policy.

“* * * Confederate notes were (as shown by evidence) almost the only circulating medium in Marshall County at the time of the payment, and must necessarily have been received by all in payment of debts of this character, as well as in all the business transactions of the country. Shall the public officers be held responsible for doing what every body else did at the time, when they violated no instructions in doing so ? We think not. We think the true rule is that if the officer acted in good faith, and took these notes when they were passing as the currency of the country, and generally received by all in business transactions, he will be justified and the debt discharged. As a matter of course, any bad faith on his part would render him liable, or any fraud or advantage taken to compel its reception by the debtor, would vitiate the payment, and render it ineffectual to discharge the debt. In a word we do not think the public officers of the country, while conforming to the public policy of the State, and not violating any instructions of parties, should be compelled to bear the losses incident to the results of the war. It would by an exceedingly hard rule that would try the measure of their responsibility, not by the circumstances surrounding them at the time, but by a state of things so entirely different, as now exists.

“It is equally unjust to maintain that parties who had claims in our courts in the form of judgments, shall be held to have had an insurance or guaranty against all the losses incident to that great civil convulsion through which the country passed, in the form of a liability on the part of officers and their sureties to them; or that parties paying debts in the then universal currency of the country, to officers, shall alone be held not to have discharged their liability, when it was done in good faith, and no fraudulent advantage taken, while all other payments of debts made under like circumstances of good faith, shall be held good. Sound policy, as well as principle, demand that the business transactions of every kind during the period of the war should have been considered as settled, and be held to stand as the parties made them, and as the end of the war found them. All were involved in the dangers and took the perils of the strife, and all should bear its legitimate losses as part of the burden imposed on the society of which they made a part, and no man or class of men should be permitted to reap advantage by reason of the great public misfortune to which ■ his country was subjected by reason of being involved in a great civil war.”

In Turner v. Collier, the case above referred to by Judge Freeman, the court said : It is insisted that the Sheriff could only receive payment of executions in his hands in gold and silver, or convertible bank paper. The law requiring this of him, must necessarily, in justice and fairness, be construed to apply to, and contemplate the normal state of things existing at the time it was passed, when gold and silver, or convertible bank paper made up the currency of the country, but cannot be held to apply to a time of public war, such as was then upon the country, when gold and silver had ceased to be a currency, and were simply commodities, bought and sold in the market, and when convertible bank paper was a thing unknown.”

In Neely v. Woodward, 7 Heisk., 497, a distinction was recognized between a collection made by an agent, who voluntarily received Confederate money in payment of a debt of his principal, without his instructions or consent, express or implied, and an officer who was required by law to make the* collection.

In North Carolina, by a long tx’ain of decisions, it has beexx held that in the absence of fraud or bad faith, persons acting in a ixduciaxy character, and receiving Confederate money, were to be charged only with its value at the date of the receipt, unless it was x’eceive so late in the war as to amount to notice that the cestui que trust would not receive it. State v. Sludder et al., 72 North Carolina R., 436, axxd cases cited. In that case an administrator received Coxxfederate money in payment of a debt of the estate in May, 1863, and was charged only with the value of the money at the time it was received.

In Brown v. Wright et al., 39 Ga., 101, the court said that a guardian, or other trustee, who in good faith, received Confederate notes, etc., in payment of a debt on account of the trust, when prudent men were generally receiving them in payment of all dues in the transaction of their own business, would be protected.

In King v. King et al., 37 Ga., 220, held that payment made in good faith in Confederate money, the common currency of the country at that time, to the attorney of a trustee, and by him paid ©ver in good faith to the trustee, who received the same without objection, was a valid payment.

We know, as a matter of public history, that from an early period of the war, to its close, gold and silver did not circulate as currency in this State, nor was there any convertible bank paper in circulation. United States curréncy, or greenbacks, was not introduced into the State in any considerable quantity until General Steele captured Little Rock, in September, 1863; and after that until the close of the war, the people outside of the Federal military lines, had little or no means of obtaining it.

Generally through the State, it was impossible to collect debts in any legal tender currency, coin or paper, during the war. As the war progressed, became more and more terrible and doubtful as to its final result, people who had coin hid it away, for the purpose of resorting to it as a means of living in the event of extreme emergencies. Confederate money was the only currency used in ordinary transactions. It gradually depreciated as its quantity increased, and the result of the war grew more doubtful, but (save in exceptional localities) it circulated freely in ordinary business transactions, paid debts and public taxes, until General Steele captured the capitol of the State, after which it rapidly declined until the close of the war, when the government which issued it fell, and the paper became worthless.

The rule adopted in North Carolina-and followed in Tennessee, .as indicated in the cases above cited, may be stated thus : That payment to a public officer, or other person acting in a fiduciary character, in Confederate money, at so late a period of the war, and when the paper was so greatly depreciated, as to amount to notice both to the party receiving it, and the party paying it, that the creditor, or cestui que trust, would not receive it, was not a valid payment. But, on the contrary, if the payment was made, and accepted in good faith, at a time when Confederate money was generally received in ordinary business transactions in the community where the payment was made, it would be a valid discharge of the debt.

In this case the notes in controversy were executed before the ■commencement of the war, and were secured by a vendor’s lien ■upon the land. It does not appear at what time in the year 1863, the payment was made. It may have been, for aught we know, late in the year, and after the capture of Little Bock by the Federal troops, and when Confederate money was rapidly on the decline. Moreover no evidence whatever was introduced at the hearing to show that Confederate money was generally received in ordinary business transactions in Crittenden county at the time when payment was made. It is a matter of public history that the Federal troops occupied Memphis, opposite, and Helena below Crittenden county, on the Mississippi river during the whole of the year 1863, and Confederate money may have been so greatly depreciated in that county at the time the payment was made, that no person in the exercise of ordinary prudence would have accepted the money in payment of an individual debt contracted before the war, and secured as the notes in controversy were, much less a trust debt.

Whether there were unpaid creditors of Q. M. Bellow’s, does not appear, but it is shown that there were minor heirs, of whom Mrs. Bellows, the administratrix, was guardian. It also appears from a transcript of the proceedings of the Probate Court of ■Crittenden county, in the matter of the administration of the estate of Q,. M. Bellows, made an exhibit to the answer of Berry and Lyle, and thus brought to our notice, that in October, 1865, Mrs. Bellows filed her account for final settlement, as administratrix, in the Probate Court, having inter-married, as stated by her, with one Mays, on-, 1863, by which her administration ceased; and in her account she charges herself with the notes of Berry and Lyle, and credits herself with the same amount of Confederate money received in payment of the notes, which she stated that she still held subject to the order of the court.

Of course, at the time this account was filed, the war having closed, the Confederate money was worthless. Whether she ■could have used it for any purpose of the estate after she received it, and before it became worthless, we have no means of knowing from the record before us. Her account was continued, and what action the Probate Court finally took upon it, does not appear. It was incumbent on the defendants below to make out their defence of a valid payment of the notes to the administratrix. This they failed to do under the rule established by the adjudications above cited. Whether we would go so far as the courts of North Carolina and Tennessee have gone in upholding payments made to trustees in Confederate money, we need not state, but we are certainly not disposed to go further than they have gone in that direction.

It may be a hardship that the appellants parted with their ■Confederate money, when it had some value, and now have to pay the debt again, but having failed to make out their defense no relief can be granted them on this appeal. If they have any remedy, it is against Mrs. Bellows for the value of the Confederate money paid over to her. Green v. Brien et al., 1 Cooper Tenn. Chancery Rep., 477.

Decree affirmed.