text:
    Glenn v. Case, admx.

    'Confederate money — when it satisfies a debt. A note was paid and satisfied by a payment, in July, 1863, in this State, of Confederate treasury notes, received by the holder of the note without any evidence of threats or protest, even where martial law prevailed, and a military order rendered the receipt of such money compulsory.
    Relief will not be granted where parties are in pari delicto.

      Appeal from Independence Circuit Court.

    Hon. Bichard H. Powell, Circuit Judge.
    "Watkins & Bose, for appellant.
    Wassell & Moore, for appellee.
   Wilshire, C. J.

In this ease William W. Glenn filed Ms bill of complaint, on tbe chancery side of the Independence circuit court, at the November term, 1867, against Sarah Case, as administratrix of George Case, deceased, the object of which was to declare a debt due from George Case, on the first day of July, 1868, and on that day paid by him to complainant, in Confederate treasury notes, to be a claim against the estate of said Case, for the difference between the actual value, on that day, and the face of the Confederate notes.

At the hearing, the court below dismissed the bill, and entered a decree against the complainant for costs, and he appealed to this court.

The material allegations of the bill are, that George Case, on the 29th day of October, 1860, in his life-time, made his note, believed to be under seal, for the sum of $250, payable to William W. Glenn, one day after date, with interest at ten per cent, per annum, from date, till paid; that said note was due and wholly unpaid on the first day of July, 1863, and the said Case, at that time, applied to and required the complainant to receive and take in payment of said note Confederate treasury notes at their par value; that, at that time, the county of Independence was within the Confederate military lines, and under the command of General Thomas C. Hindman, an officer of the Confederate army, who but a short time before had proclaimed martial law within the State of Arkansas, and, by an order to the people, commanded them to receive Confederate treasury notes at par, as a common circulating medium, in all business transactions, under the pain and penalty of trial and punishment, by a court-martial, for disobedience to such order, which, the complainant alleges, was in force on the first day of July, 1863; that said Case, at that time, took advantage of the proclamation and military order of said Confederate military commander, and the unsettled condition of the country, and threatened the said complainant, if he refused to take Confederate treasury notes in payment of the amount of the note due from him to complainant, to report complainant to the nearest provost marshal, to be dealt with according to the conditions of said military order; that the complainant, fearing the results in such case, and being intimidated by such threats, and knowing the severity as well as the uncertainty of military law, received from said Case the amount due on the note in Confederate treasury notes, at par, and gave up Case’s note to him; but, at the time of doing so, the complainant protested against the unfair and oppressive conduct of Case, and declared that he did not consider the note as settled or paid; and the complainant prayed that the defendant be required to bring said note into court, and that an account be taken of the actual value of the Confederate treasury notes at the time they were received by him, and that amount allowed as a credit on the note of Case, and the balance due upon said note be declared to be a claim against the estate of said Case, and the defendant, or his administratrix, be directed to pay the same to the complainant.

The defendant, by her answer, denies any knowledge of the debt, alleged in the bill of complaint to be due from her intestate to the complainant, but states, as her belief, that her intestate was at one time indebted to the complainant in some amount, which she alleges was fully paid off and discharged, in the life-time of her intestate, without any force, threats or compulsion on his part. She stated that the note mentioned in the cv/j qilainant’s bill of complaint, is not in her possession, and that she can find nothing pertaining to it in the papers of her intesf'dc, &e.

The proof adduced upon the hearing does not establish the allegation of threats and compulsion, charged in the bill. None of the witnesses testify that they were present when Case paid the debt, alluded to in their depositions, due from him to Glenn. They all allude to conversations with Case, either before or after the payment. It is true that some of the witnesses state that Case told tliem, before the payment, that he intended to make Glenn take Confederate money in payment of the debt due from him.

The testimony of "Williams and Burr is, that Case told them he had paid Glenn in Confederate money; and Burr states that in the conversation with Case, after the debt was paid, Case told witness, that Glenn said, when the payment was made, that “ he had no use for the money.” There is no testimony to show that Case, at the time of payment, or at any other time, made the threats charged in the bill.

If a debtor induces his creditor to receive from him any thing but lawful money, in discharge of his demand, by threats of imprisonment, and the creditor has reasonable grounds to believe that his debtor is in a condition to execute the threat, it is a receipt under duress, and will not discharge the debt. It is as essential to the complete discharge of a debt, payable in money, in any thing but lawful currency, that the free, unrestrained consent of the creditor should be coupled with the receipt of such by him. In this case, had the complainant proven the threat alleged in his bill, he would, undoubtedly, have been entitled to relief. But, as there is no evidence to support the allegation of threat and compulsion, the transaction must be treated as an executed contract between the parties.

It was held by this court, in the case of Latham v. Clark, decided at the present term, that contracts base upon or for the payment of “ Confederate money,” was opposed to public policy, illegal and void. We think that executed contracts of this character should not be disturbed,. The parties, as was held in Latham v. Clark, being in pari delicio, the courts will not grant any relief, but will leave them in the condition in which they have put themselves and in which the courts find them. This doctrine is laid down by Story, in his treatise on contracts. He says, on this subject, that “ relief will never be granted where the parties are in pari delicto, unless in cases where public policy would be thereby promoted; for it is not the benefit of- the party, but of the public, that is regarded.”

"We find no error in the record of the court below. ■ The judgment .is affirmed.


source: Caselaw Access Project

author: Wilshire, C. J.

license: Public Domain

text:
    Glenn, et al., v. Case, admx.

      Appeal from Independence Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    "Watkins & Rose, for appellants.
    WIassell & Moore, for appellee.
   Wilshire, C. J.

The only question presented in this case is precisely the same as that determined in William W. Glenn v. Sarah Case, admx., &c., decided at the present term. The decision in that case is the law of- this case.

Let the judgment be affirmed.


author: Harrison, J.

text:
    Harrison v. Trader and wife.

      -Appeals — when transcript must he filed. The appellant will not be permitted to file in this court the transcript of the record after the term to which, the appeal was taken, except upon a showing of due diligence, and upon notice to the appellee.
    Where the appeal was taken November 19,1867, and the transcript filed July 8,1869, and there is no such showing, or leave of court, the appeal is considered as not having reached this court, and the cause is stricken from the docket.

      Appeal from Phillips Circuit Court.

    Hon. Jambs M. Hanks, Circuit Judge.
    J. C. Palmer, for appellant.
    English, Gantt & English, for appellees.
   Harrison, J.

The appellees have filed a motion to dismiss the appeal in this ease, upon the ground that the appellant had failed to prosecute the same by filing the transcript within the time prescribed by the statute.

The appeal appears to have been taken on the 19th day of November, 1867, hut the transcript was not filed until the 8th day of July, 1869, and then without leave of the court.

Although, as was decided in Clay’s Ad. v. Notrebe’s Ex., 11 Ark., 631, the appellant does not necessarily forfeit his appeal by failing to file the transcript in the time prescribed by law, he will only be permitted to file it after the term to which it was taken, upon showing that he has used due diligence, and that the failure was not owing to 'laches or neglect, and after notice to the appellee of his application. \

The transcript, not having been filed until more than a year after the term to which the appeal was taken, without such showing, or the leave of the court, the appeal has not yet reached this court, and the case is therefore improperly upon the docket, and will be ordered to be stricken from it.


author: Warwick, Special J.

text:
    White v. Reagan.
    Special judge — must be qualified elector. A person who is not a qualified elector can not sit as special judge of the circuit court.
    A person may be a qualified elector, and hot a registered voter.

    Right op objection. A party may question the authority of an individual to try his case as special judge; if the objection is overruled, the grounds of the objection may be spread upon the record, and brought before this court, by bill of exceptions, to enable it to determine the right of said individual to exercise the powers of a special judge.
    It is error for the court below to refuse to hear evidence, or to pass on the objections to the authority of special judge.
    Time por piling pleas. Under the former practice the defendant has until the cause is regularly called, in its order on the docket to file pleas to the merits, and the court could not abridge the time ; and it is error to strike out pleas, before the case is so called, as not being filed in time.
    Judgment op nil digit. It is error to award judgment of nil dicit where a plea remains undisposed of.

      Appeal from Washington Circuit Court.

    Hon. J. M. Pitman, Special Circuit Judge.
    'G-arhand & Nash, for appellant.
   Warwick, Special J.

At the February term,, 1867, Heagan brought suit, in tbe Washington circuit court, against White and W. I). Taylor, in debt, on promissory note. At same term White filed two pleas, and at the next term, withdrew one plea, viz : Statute of limitations. At the February term, 1868, Reagan asked and obtained leave to amend his declaration.

It appears, from the bill of exceptions, that, after the amendment was filed, White filed three special pleas, which were stricken out as not having been filed in time. At the March term, 1869, the presiding judge being disqualified to act in this and other causes, an election was had for special judge, in pursuance of article 7, section 9, of the Constitution.

At this election the Hon. James M: Pitman, “a duly licensed and enrolled attorney of said circuit court, ivas elected to preside as special judge, and took the oath prescribed by the Constitution.”

Appellee, Reagan, at this term, (March, 1869,) filed a motion to strike out the three pleas of White, the appellant; which motion, coming on to be heard, the appellant entered and filed a protest against the Hon. James M. Pitman .presiding as special judge, in the trial of this cause., for that he was disqualified from holding the office, &c.; which protest the court refused to act or decide upon, and to which refusal exceptions were taken and signed. The court sustained the motion to strike from the files appellant’s three pleas.

Judgment was rendered by the court, sitting as a jury, against White and Taylor, nil dicil, from which White appeals.

The protest, filed by White against the special judge, was supported by affidavit, spread upon the records, and made a part of the bill of exceptions. Among other reasons, it assigned that the special judge was disqualified, by reason of not being a qualified elector of this State. This, Jf true, was a sufficient reason why the special judge could not hold the office or preside in the case. Art. 8, sec. 3, Constitution.

By the term “qualified elector,” we do not mean simply a registered voter, for we conceive that one may be a qualified elector, entitled to hold office, sit on a jury, &c., and yet not be entitled to vote, under the law, for want of certificate of registration.

A qualified elector is oue who is not embraced in any of the six subdivisions of article 8, section 3, of the Constitution, and a certificate of registration is evidence thereof, the want of which is not conclusive as to the right of a claimant to office.

It is the well settled rule of this court, which we shall not disturb, that a party may question the authority of an individual to try his case as a special judge; and, if the objection is overruled, the grounds of the objection, and the authority of the judge, may be spread upon the record, by a bill of exceptions, in order to enable this court to determine his right- to exercise the powers of special judge in the case. Rives v. Pettit, 4 Ark., 582; Adams v. The State, 11 ib., 466; Sweeptzer v. Gaines, 19 ib., 96. The refusal of the court to hear evidence or pass on the objections raised to the authority of the special judge,pro or eon, was manifest error.

It was clearly error, in sustaining the motion of the appellee, do strike from the files the three pleas of the appellant. At the February term, 1868, the cause was submitted to the court, and, before judgment, the appellee was permitted to withdraw the trial and amend his declaration, and the case continued.

The cause then stood for trial, on call, at the next or a future term of the court. Under the former practice of this State, the defendant had until the calling of the case, in its regular order on the docket, to file pleas to the merits, and the court might, in its discretion, extend, but could not abridge, the time by a rule of practice. Cornish v. Sargent, 18 Ark, 266; 12 ib., 718; 10 ib., 137. At the time of filing these pleas, the case does not appear to have been called, and from the record certainly was not called, in its regular order on the docket, until two terms thereafter.

The court also erred in rendering a judgment nil dicit, for the record shows one plea, filed by White at the February term 1867, undisposed of.

The judgment, as to appellant White, reversed, and cause remanded.

Judge Gregg, being disqualified, did not sit in this, case.

Hon. W. I. Warwick, Special Supreme Judge.