author: Harrison, J.:

text:
    Sanders vs. Simmons.
    Illegal Taxes: Not recoverable from the Collector.

    The assessment of appellant’s land was fraudulently and illegally raised by some unauthorized person, and the taxes extended on the increased assessment; he tendered the appellant, the C®llector, the sum legally due which was rejected, and, in order to avoid the accrual of the penalty and the sale of the land, he paid the full amount demanded, and afterward sued fer the excess. Held he could not recover without showing that the excess remained in the appellant’s hands; he was protected by the warrant accompanying the tax book and need not look beyond it.
    APPEAL from Lincoln Circuit Court.
    Hon. David W. Carroll, Circuit Judge.

      J. M. Cunningham, for appellant.
    It does not appear that the increased assessment was not made by the Board at an adjourned day. The act of 1871, section'65, is only directory, and the functions of said Board not limited to the time. Regina v. Cor. of Durham. There are no negative words. See Colt v. Eves, 12 Conn., 243; People v. Peck, 11 Wend., 604; People v. Allen, 6 ib., 486; Ex Parte Heath, 3 Hill N. Y., 42; Pond v. Negus et al., 3 Mass., 230; Jackson v. Young, 5 Cow., 269; Walker v. Chapman, 22 Ala., 116; Mc-Quffee-v. State, 17 Ga., 497; Hart v. Plum; Cale v. Meade, 2 Denio, 160; Merchant v. Longworthy; City of Lowell v. Hadley, 8 Met., 180; Striker v. Kelly, 7 Hill, 9; People v. John Doe, 1 Mich., 452 and 453; Colt v. Eves, 12 Conn., 243.
    The officer acted officially under process and is not liable. Hunt v. Balleio, 9 B. Monroe, 390; Camp v. Mosely, 2 Fla., 171; McDonald v. Wilkie, 13 111., 22; Tefft v. Ashbaugh, ib., 602; Whipple v. Kent, 2 Gray, 410; Churchill v. Churchill, 12 Vt., '661; Heydon v. Conway, 12 Miss., 295; Holmes v. Nuncaster, 12 Johns., 395; Yates v. St. John, 12 Wend., 74; State, use, v. Ch'ow, 6 Eng., 642; State, use, v. Sadler, 1 Eng., 235; Huddleston Speer, 3 Eng., 406; 2 Hill on Torts, 187.
    There was a remedy through the Auditor. See sec. 65, of act -of 1873, p. 337, or from the Clerk, see sec. 198, p. 390, or by certiorari, under sec. 18, of amended Code.
    These statutory remedies are exclusive. Camden v. Allen, 2 Dutch., 398; Victory v. Fitzpatrick, 8 Ind., 281; McCormick v.
      Terre Haute, etc., 9 Ind., 283; Commonwealth v. Garrigues, "28 Penn., 9; Sedg. Con. and Stat. Law, 313.

      L. A. & X. J. Pindall, for appellees.
    The valuation of the lands after the Board adjourned was illegal.
    The Board had no right to change the Assessor's valuation, but to put the raised value, if proper, in another column on the form. Acts of 1871, p. 149-50, secs. 65, 66 and 71, But the court was not in legal session when the act was done, and it was void. Ferguson v Ch'ittenden County, 6 Ark., 479; Chaplain v. Holmes, 27 Ark., 414. The court could not constitute a subcommittee and delegate its authority.
    The powers attempted to be vested in the Board were unconstitutional. See Const, of '68, art. 10, sec. 2.
    The Clerk, in exercise of special powers requiring discretion, cannot act by deputy.
    The matters complained of can only be shown by proof de hors the record, hence injunction lies. Cleghorn v. Tostlewait, 43 111., 428; Gantt's Dig., sec. 3451. Besides certiorari would quash the whole tax book, which is not sought.
   Harrison, J.:

The real property of the appellee was assessed in 1872, and appraised by the assessor at $13,050. No change in the valuation was made by the county board of equalization, but after it adjourned the value fixed by the appraisement was fraudulently and by forgery altered and raised on the assessment list, as if done by the board, by some unknown person to $34,290.

The value thus fraudulently raised was carried to the tax book for that year, and the taxes upon it extended therein, making an excess of $564 over the amount of taxes legally chargeable. Appellee tendered to the appellant, who was the tax collector, the taxes legally clue, but the appellant demanded the full amount charged against the lands, and being about to add the penalty of twenty-five per centum thereto, and to proceed to sell the lands, appellee paid him the amount demanded.

This suit, which was commenced on the 25th day of September, 1874, was brought by the appellee to recover said excess of $564. .

The appellant demurred to the complaint, on the ground that it showed no cause of action. The court overruled the demurrer, and the plaintiff recovered judgment for the amount claimed.

The appellant had nothing to do with the assessment of the property, and was not presumed to know anything about its valuation, except what appeared upon the tax books. The warrant upon the tax book in his hands was in the nature of an execution, and to collect the taxes stated therein, and to pay the same into the county treasury, was a duty he might not disobey. Gantt’s Digest, sec. 5139; Gossett v. Kent, 19 Ark., 602; Black, on Tax Titles, 200. He could not, therefore, be amenable to the appellee for an injury occasioned by the performance of that duty.

There is no clearer proposition of law than that an officer, having in his hands a warrant or legal process from competent legal authority, is not bound to look beyond such warrant or process, but will be protected in its execution. State, use, etc., v. Sadler, 1 Eng., 235; State, use, etc., v. Crow, 6 Eng., 642; Wattles v. Marsh, 5 Cow., 176; Ford v. The Treasurer, 1 Nott. & McCord, 234; Whipple v. Kent, 2 Gray, 410; Savacool v. Boughton, 5 Wend., 170; Hill v. Bateman, .2 Strange, 710; 8 Bac. Abr., 690.

If the appellant, upon settling with the auditor and the board of supervisors, was not required to account for and pay such illegal excess into the State and county treasuries, and the same .remains in his hands, the appellee could recover it from him; but such is not shown to be the case, and the presumption is the other way. For the fraud practiced against the appellee he must seek relief from the State and the county, to whom the appellant paid the money over.

The judgment of the court below is reversed and the cause remanded to it, with instructions to allow the demurrer and to proceed according to law.


source: Caselaw Access Project

author: S. W. Williams, Sp. J.:

license: Public Domain

text:
    Vaughan, col. vs. Bowie et al.
    1. Taxation: For district school purposes.

    The revenue act oí March 25th, 1871, prohibited the levy of more than five' mills tax in. the rural school districts.
    2. Equity Jurisdiction.
    A court of equity having jurisdiction of a part of the subject matter, will dispose of the whole case.
    3. -. Statute conferring it-, effect of.

    The act of April 24th, 1873, conferring jurisdiction on courts of equity to enjoin the collection of illegal taxes and assessments, operated on suits pending at the time the act went into effect.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. Read Fletcher, Special Judge..

      Attorney General Hughes.

    Called the attention of the court to act of 23d July, 1868, sections 18, 20, 21, 32. No estimate by trustee was made. The law is mandatory. Ciarle v. Crane, 5 Mich., 154. Shawner v. Carter, 2 Han., 115; Cooley’s Const. Lim., 75.
    County Court could not exceed a levy of five mills. Act of 25th March, 1871.
    The State therefore, submitting the questions to this court,, makes no legal objection to affirmance of th& decree. \

      M. L. Jones, for appellees.
    Cited and noticed on section 146, Rev. act of ’71, and sections 18, 22, 32, 35, 37, 38, 40 of school law of 1868.
    Equity will interfere to enjoin an illegal or void tax, where the collection would be attended with injuries cognizable on other grounds. High on Inj., 194, 216; Blackwell on Tax Titles, 563, 583 ; Clayton v. Lafurgen, 23 Ark., 137; Osbwrne v. Bank, of U. 8., 9 Wheaton, 738; Bivrnet v. Cincinnati, 3 Ohio, 73; Downs v. Chicago, 11 Wall., 108; Williams v. Peinny, 25 Iowa, 436; Jeffersonville v. Patterson, 32 Ind., 140; Wood v. Draper, 24 Barb., 187; Heywood v. Buffalo, 14 N. Y., 534.
    Such as, in this case, multiplicity of suits, 1 Sto. Eq. Juris., 64 K, 66, and clouding of titles by sale, and deeds; and danger of sale of property haying peculiar value; in which is no adequate legal remedy.
    Certiorari not adequate, it must be by the court and never in vacation. Ba. Ab. Title Certiorari; Petersdorf Ab., same title; Comyn’s Dig., same title; Albany Water Works v. Albany Mayor’s Court, 12 Wend., 292 ; The People v. Albany, ib., 263; Bradner v. Superintendents, 9 Wend., 433; Whittelsey v. Zane, ib., 432; Comstock v. Porter, 5 Wend., 98; Monroe v. Baker, 6 Cow., 396; Starv. Trustees of Rochester, 6 Wend., 564; Zinck v. Langton, Douglas 794; The King v. Eaton, 2 Term. R., 89.
    The court acquired jurisdiction, in any view, upon the passage of the act of 24th April, 1873, pendente lite, that act being remedial. 1 Kent’s com., 458; also note (2) (a ;) Underwood v. Billy, 10 Serg. and R., 97 ; Tate v. 8toolzfoos, 16 Serg. and R., 35 ; Bleakney v. Far. and Mee. Bk., 17 Serg. and R., 64; Hepburn v. Curts, 7 Watts, 300; Foster v. Essex Blc., 16 Mass., 244; Cooley’s Const. Lim., 381.
   S. W. Williams, Sp. J.:

The appellees filed their complaint in chancery on the 18th of April, 1873, in the Jefferson Circuit Court, in which, in behalf of themselves and others, tax payers of school district No. 22, in said county, they allege that an illegal school tax of fifteen mills per cent had been levied by the County Court on the tax payers of said district. Much was said in the bill which applied to and tended to show the illegality of the entire tax, on the ground that the five mills per cent allowed by law was not legally voted by the inhabitants of the district, and the answer contained much which was intended to sustain its legality, all having reference t the time and manner of voting the tax by the citizens o f the district.

This general statement is sufficient as to this; for, as the court below refused the injunction as to five mills-per cent, both in the temporary injunction and the final decree, and as Bowie and his associates have not appealed from the decree as to the 5 mills, it will be useless to set out the lengthy allegations having reference only to this, as it is not of importance here, except upon the question of jurisdiction, the vote of the tax being de hors the record, and the subject of extrinsic evidence, and the whole tax being in litigation, the jurisdiction of the court below would seem to be clear upon this ground alone. To the decision of the case, however, upon this point we do not deem it necessary to go at length into the facts, as we shall decide the main question involved on other grounds.

The 146th section of the act of 25th March, 1871, in effect, prohibits any tax district such as number 22, not being a separate district in a city or town, from levying in any event, by vote or otherwise, exceeding five mills per cent. The language of the act is: “ Such rate as may be determined on by the qualified electors of said district, in the manner prescribed by law, not exceeding five mills on the dollar.” It is, therefore, clear that as to the ten mills per cent levied by the County Court, which the court below perpetually enjoined, the tax is illegal and void upon its face, and could have been quashed upon certiorari, and needed no allegation or proof de hors the record, to show its illegality. But being connected with the five mills per cent tax, the legality of which was contested on the ground of irregularity and illegality in voting it, which was matter de hors the record, and equity, having jurisdiction of a part, had jurisdiction of all. This case is, in that respect, like that of Creedup et al. v. Franklin County, and Berry as Sheriff, ante, and is in harmony with Floyd v. Galbraith, 27 Ark., 676, and Oliver v. Railroad, ante.

The only question presented is whether the court below had jurisdiction.

In the case Murphy v. Harbison, 29 Ark., 340, it was held that for a tax clearly illegal on its face, the remedy was at law., and this court declined to review the case of Floyd v. Galbraith, which first announced this doctrine, in which case there was a dissenting opinion, on the ground that the mooted question of jurisdiction was settled for the future by statute. Mr. Chief Justice English, who delivered the opinion of the court in that case, says: “The appellant, having a plain and simple remedy in a court of law, and averring in his bill no such facts as to bring the case within any of the established subjects of equity jurisdiction, the cqurt below, according to the decision of this court in Floyd v. Galbraith et al., 27 Ark., 676, properly sustained a demurrer to the bill. There was a dissenting opinion in that case, but we are not disposed to review the decision in the case now before us, because an act was passed shortly after the decision was made which was intended, perhaps, to settle the mooted question of jurisdiction. It provides that the judge of the Circuit Court may grant injunctions and restraining orders in all cases of illegal and unauthorized taxes and assessments by county, city or other local tribunals, boards or officers. Gantt’s Digest, sec. 3451.

This reference by the Chief Justice was to the act of April 24-th, 1873, which was approved on that day, and became a law ninety days thereafter, as it contained no clause giving it effect immediately, as required by the Constitution of 1868, if it was intended to have effect before ninety days. This act was in force several months before this cause was finally decided. The final decree was rendered November 23d, 1873. Even if the court did not have jurisdiction at the inception of this case, did not the statute cure the defect ? All constitutional objection aside, and we see none, in this case, the effect of the statute is retrospective in its operation upon all undetermined cases. This court expressly recognized this doctrine in the case of .O’Bannon v. Ragan, decided at the present term, and that case was made an exception to the general rule regulating the effect of repealing statutes upon pending suits, on the ground that in the particular case the time allowed for an appeal by the new act in its effect upon that case, deprived the party practically of the constitutional right of appeal.

As no such question arises here, we think the act of 24th of April, 1873, applied to pending cases that remained undetermined at its passage. If the rule established in Floyd v. Galbraith applied to this case at all, then the law as then announced which denies a remedy in equity where the tax appears to be void on the face of the record, was changed by this act, and the jurisdiction was given. In delivering the opinion of this court in the case of O’Bannon v. Ragan, Mr. Justice Walker, after commenting upon the aci of 29th April, 1873, which changed the mode of taking an appeal from a judgment of a justice of the peace, as prescribed in the Code, and shortened the time allowed therefor from sixty to thirty days, uses this language : “Presents a hardship which we would, if possible, mitigate by holding the operation of the act prospective, and not intended to affect suits commenced, or the right of appeal from judgments-rendered under the Code procedure. But the effect of the repeal will not permit us to do so. Sedge wick 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.”

We see no constitutional obstacle to prevent the operation of the act of 24th of April, 1873, upon all cases pending at its passage. The effect given to this statute by us is well sustained. See Foster v. Exeter Bank, 16 Mass., 245; Underwood v. Lilly, 10 Serg. & Rawle, 97; Tate v. Stoolzfoos, 16 Serg. & R., 35;. Blakeney v. Farmers and Mech. Bank, 17 Serg. & R., 64; Hopburn v. Curts, 7 Watts, 300.

Judge Cooley, in his work on Constitutional Limitations, says-the bringing of suit vests no right to a particular decision,, and the case must be determined on the law as it stands when the judgment is rendered. It has been held that a statute allowing amendments to indictments in criminal cases might constitutionally be applied to cases then pending, and it has also been decided that a statute changing the rules of evidence might be applied to pending suits, even under a constitution which forbade retrospective laws; and, if a case is appealed, and the law is changed pending the appeal, the appellate court must decide, according to the law in force when the decision is rendered. See-Cooley’s Const. Lim., 381.

The general rule is, that a party has no vested right in a defense based upon an informality not affecting his substantial interests. See Cooley’s Const. Lim., p. 370. Here the Constitution of 1868, under which this suit was commenced, and the act of 24th of April, 1873, was passed, authorized the Legislature to confer such jurisdiction as it might see proper upon inferior courts. The act of 24th April, 1873, affected all pending suits to which its subject matter applied, and the court properly •enjoined the tax. <

Although it would be sufficient to rest this case, as we do, upon the act which, confers jurisdiction in all cases of illegal taxes, yet we .do not overlook another ground of equitable jurisdiction which exists in this case, to-wit: That this suit was brought by Bowie and many other citizens and tax payers of the school district, in behalf of themselves and other tax payers, to enjoin a tax, apart of which, “to wit: ten mills per cent.” appeared to be illegal, and the illegality of the balance, if illegal at all, as claimed in the bill, depended upon facts de hors the record, while as to the ten mills there might be a remedy for each tax payer separately by certiorari, yet to give to all the tax payers the protection of the law from illegal taxation, it would require a multiplicity of suits at law. Mr. Justice Walker, in delivering the opinion of this court in the case of Creedup v. Franklin County, says: “And whilst we will sustain the jurisdiction of a Court of Chancery, upon this ground, under the state of case presented, that, as to part of the tax, its illegality had to be shown by extrinsic evidence, we will remark that there is another ground of equitable jurisdiction which should not be overlooked. In this case, as it is shown, the illegal tax thus assessed amounts to $11,923.91. These plaintiffs have sued in-behalf of themselves and of the other tax payers of the county, this they may do in equity, but suppose we send them back to a court of law to assert their rights. We know that at the common law there can be no combination of parties, each tax payer must sue in his OAvn right to remove the tax erroneously assessed against him; what a multiplicity of suits at laAv must bo brought in order to get redress for an injury Avhich it is proposed to stop in a single suit in equity. We have no means of knoAving of a certainty the number of tax payers in Franklin county, but may suppose that they exceed two thousand. Of these perhaps five hundred may be able to assert their rights at law, whilst one thousand five hundred, who pay less tax, being in moderate circumstances, or too poor to employ counsel to stop the payment of an erroneous tax, ten times less than it would cost to employ counsel to prosecute suit. The mere suggestion of the situation, if left to redress at law, shows that it, in effect, would amount to a denial of redress to offer it to them. In such case chancery will interpose to prevent multiplicity of suits.

Although we have contented ourselves with deciding this case upon grounds strictly in harmony with our former decisions, we have not felt at liberty to omit some reference to this additional ground of chancery jurisdiction. Whether or not the court below had jurisdiction at the commencement of this suit, it was conferred by statute before the final decree was rendered, and we find no error in the same, in perpetually enjoining the collection of the ten mills tax, from which decree this appeal was taken.

Let the decree of the Jefferson Circuit Court in this cause be-in all things affirmed.


author: English, Ch. J.:

text:
    Gist, adm’r, vs. Gans.
    1. Considebation: Confederate money.

    Suit on a note, plea that it was executed for Confederate money, and was-therefore illeg-al and void; held that the plea was demurable.
    2. Evidebce: Competency when one of the parties is dead.

    Under a plea of non est factum by an administrator to a declaration on a note alleged to have been executed by his testator, the plaintiff should' not be permitted to testify that the deceased executed the note just as it was at the time of testifying; the evidence relates to a transaction between the parties, and is within the constitutional inhibition.
    3. ——. Same.

      Semble. Where it is competent for a party to testify to the existence or non-existence of a fact he may be permitted to do so, though his testimony may inferentially affect a fact or transaction as to which he is incompetent to testify.

      ■4. Non est Pactum: Burden of proof under plea of.

    Under the special plea of non est factum the burden of proof is on the defendant.
    •/>. Alteration: Not evidence of fraud, etc.

    An apparent alteration on the face of an instrument creates no legal presumption that it was fraudulently altered; and under the issue of non est factum the question must be determined from the appearance of the instrument in consideration with the evidence introduced.
    ■6. Pbopebty Note: Demand before suit, when it ceases to be necessary,

    A promise to pay a given sum in cotton, at a fixed rate per pound to be delivered at a designated place when called on by the payee, is a property note, and demand is necessary before suit; but upon the death of the maker, demand ceases to be necessary, as the administrator could not, according to the due course of administration, comply with it; and it will be sufficient to probate and present the claim as in case of other demands.
    APPEAL from White Circuit Court.
    Hon. M. L. Rice, Special Judge.

      Turner & Moore, for appellant.
    The court erred in sustaining demurrer to the plea of illegality ■on account of Confederate money. Latham v. Clark, 25 Arle., •574; Jordan v. Walker, 26 id., 1; ILingv. Carnall, ib., 36; Carl Lee v. Carlton, 27 ib., 379. It was good at least to reduce the amount of recovery under act of March 5th, ’67, which it is argued was not obnoxious to the objection made in Leaeh v. Smith, 25 Ark., 248. See also Thorington v. Smith, 8 Wall., 1 and 19 ib., 548.
    And in admitting the testimony of plaintiff, the proof as to the apparent alteration was part .of the res gestee between plaintiff and intestate. Strong v. Devin, 55 Barb., 342; Stanley v. Whitney, 47 id., 586, and in refusing to make the declarations of law asked by defendant Wilde v. Ormsby, 6 Cush., 314; note to p. 322, 2nd Pars. 5th Ed.; Jaokson v. Osboon, 2 Wend., 555; Ely v. Ely, ■6 Gray (Mass.,) 441; Wheat v. Arnold, 36 Ga., 482; Hill v. Cooly, 46 Penn., 261; Chism et al. v. Toomer 27 Ark., 108;
      Burnham, v. Ayer, 35 N. H., 354; Sheldon v. Hawes, 15 Mich., 522; Porter adm’r, v. B>oby, 2 Rice Eq., (S. C.) 49; Bow v. Jewell, 18 N. H., 356.
    This was not a money contract, and might be paid in property. 2 Par. on Con, (5th Ed.,) p. 651. See Bradley v. Farrington, 4 Ark., 532 ; Jeffrey v. TJnderwood, 1 ApL, 119 ; Hudspeth v. Gray, 5 Id., 158; Gregorys. Bewley et al., 5 ib., 318.
    Demand was necessary. Rice v. Churchill, 2 Denis, 145 ; Bobdell v. Hopkins, 5 Cowau, 516; Vance v. Bloomer 20 Wendall, 196; McMurry v. State, 6 Ala., 325; Bundridge v. Harris, 1 Wash. (Va.,) 326 Mury; 2 Parsons on Con., 649, 657 and notes; 1 ib., 539 and notes.

      Coody, for appellee.
    All other matters in this case are abandoned by appellant’s notice for a new trial, save the rulings of the court on special plea of non est factum 19 Ark., 122 and 683 ; 20 Ark., 36; 23 Ark., 19. See Fowler v. Bender, 18 Ark., 262. The burden of proof is on the pleader. Peed v. Latham, 1 Ark., 66; Rogers v. Biamond, 13 Auk., 480; 4 Met., 221; 17 Pick., 418; 7 Ind., 129; 3 Sneed, 342; 10 Conn., 182; 6 Cow, 192; 8 ib., 71; 3 Vt., 521-22; Burk Ch.119; 6 Ala., 707.
    No presumption is raised by an apparent alteration. It is a question of fact. 10 Am. Rep,, 232; citing Hunt v. Gray, 35 N. Y., 227; 2 Par. on Cons., 721; Bavis v. Finney, 1 Met., 221-2; Gooch v. Bryant, 13 Me., 386; 20 Vt., 205; 1 Halst., 215; 5 Harris & J., 36 ; Clarke v. Rogers, 2 Greenl., 147. It must be material. 2 Parsons on Cons., 718; 5 Mass., 540; 6 ib., 519; 3 Ohio St., 445; 9 Ark. 122. The note was for a sum certain, and no demand was necessary. Hoys v. Tuttle, 8 Ark., 124; Williams v. Green, 14 Ai’k., 325.
    On admission of plaintiff’s testimony, see Giles, adm’r, v. Wright, 26 Ark,, 476.

      The finding of the court, sitting as a jury, will not be disturbed on weight of evidence. Jacksonv. Rutherford, 23 Ark., 24.
   English, Ch. J.:

On the 12th day of August, 1867, Leon Gans, after notice to James M. Gist, administrator, presented to the Probate Court of White county, for allowance and classification, the following claim against the estate of John F. Thomas, deceased, properly authenticated by affidavit:

“ Stony Point, April 25th, 1862.
$895.25. Due Leon Gans eight hundred and ninety-five 25-100 dollars borrowed money, and payment for a mule, for-which I promise to deliver cotton at Des Arc at eight cents per pound when called for. Jno. F. Thomas.”

Gist, the administrator, interposed two pleas: First — A special plea of non est faotnm. Second — That the note sued on was a Confederate money contract, and illegal and void. Demurrers were interposed to both pleas, sustained as to the second and overruled as to the first, and the plaintiff declining to answer over to the first plea, judgment was finally rendered, after protracted proceedings not material to be stated, in favor of defendant, and plaintiff appealed to the Circuit Court.

The Circuit Court reversed the judgment of the Probate Court for errors appearing of record, and opened the case for trial de novo. A demurrer to the second plea was sustained, defendant was permitted to amend the first plea. The cause was tried by the court sitting as a jury on the first plea, finding and judgment in favor of plaintiff, motion for a new trial was overruled, bill of exceptions and appeal by defendant.

First — The second plea, as amended in the Probate Court, and to which a demurrer was there sustained,, as well as in the Circuit Court, is, in substance, as follows.:

And for a second and further plea in this behalf, said defendant says actionem, non, because he says that as to the sum of-dollars, the loaned money mentioned in said note, the same was the amount of a certain currency commonly called Confederate money, which was pretended treasury notes, issued and circulated by the late so-called government of the Confederate States, as a currency to aid, assist and support said so-called Confederate States in the prosecution of the late war of resistance and rebellion against the authority of the government of the United States, and to dissolve the Union of the States of the said United States, contrary to the peace and public policy of said United States and the people thereof, which Confederate money was then loaned by said plaintiff to said deceased in his lifetime, as money and currency to be by him paid out and circulated as currency, contrary to the public policy and the peace and interest of the people of the United States, and the mule mentioned in said promissory note was estimated and sold to said deceased by said plaintiff at its estimated value in the same pretended currency, to-wit — Confederate money, and that said note was to be paid off and discharged in cotton at its estimated value in Confederate money, and was dischargeable in Confederate money if not paid off and discharged in cotton, according to the original stipulation thereof. And so defendant says that said contract was against the public policy of the government and people of the United States, to the great detriment of the interest and peace of said government and people, and is void, without this that said note was executed for or upon any other consideration whatever than as' aforesaid ■, and this defendant is ready to verify. Whereupon,” etc.

The causes assigned for demurrer are numerous and need not be stated.

The plea attempts to answer and defeat the whole cause of action, on the ground that the note was a Confederate money contract, illegal and void.

The logic of the plea is that Confederate money was illegally issued, and therefore a contract between individuals in an ordinary private transaction, based upon such money is tainted with the illegality and void.

The substance of the plea is that plaintiff loaned defendant’s intestate Confederate money, the amount not stated; that intestate owed plaintiff for a mule, value in like money, for which sums the note was given payable in cotton, and to be discharged in Confederate money if the cotton was not delivered, and therefore the whole note was alleged to be illegal and void.

In Latham v. Clark, 25 Ark., 574, a majority of the judges of this court (sitting under the constitution of 1868) decided that contracts based upon Confederate money between individuals in the ordinary course of their private transactions, were illegal and void. Mr. Justice Harrison dissenting, thought proper to follow the more reasonable views of the Supreme Court of the United States, as expressed by the Chief Justice in Thorington v. Smith, 8 Wallace, 1, and to which views the same court has adhered in a number of later decisions, as shown by us in the case of Berry, adx. et al. v. Bellows, adm’r, ante.

Had the plea sought to scale the contract to a Confederate money value (as in Roane v. Green and Wilson, 24 Ark., 210), we might examine the act of March 5th,-1867 (Acts of 1866, p. 195) to inquire whether it was unconstitutional as impairing the obligation of contracts, as held in Leach v. Smith, 25 Ark., 246, and Green & Wilson v. Roane, 24 Ark., 15, or whether it merely attempted to change a rule of evidence, and permit parties to prove, by parol evidence, the character of written contracts made when Confederate money was circulating as a currency. But such was not the object of the plea, its substance and purpose being to defeat the whole cause of action, on the ground that the contract was illegal and void. The court below properly sustained a demurrer to the plea.

Second — The special plea of non est factum, as amended, and on which the cause was tried in the Circuit Court, is as follows :

“ Defendant says, upon information and belief, that the words when called on,’ appearing on the instrument sued on, were not on or a part of said instrument when it was executed by said John E. Thomas, but have been (as he believes) fraudulently added thereto by said plaintiff, or by his procurement, since it was executed, and without the knowledge or consent of said deceased in his lifetime, or of the defendant since his death.”

A demurrer was interposed to this plea, and overruled, and the cause submitted to the court sitting as a jury, and the court found for the plaintiff and gave judgment $1,170.50, being, as stated in the entry, the principal and interest on the instrument sued on from time payment was demanded.

It appears from the bill of exceptions taken by the defendant that on the trial, the plaintiff read in evidence the note sued on, and copied above. Also the notice served by plaintiff on the defendant, 20th July, 1867, that application would be made to the Probate Court for the allowance and classification of the claim, etc.

Plaintiff was then permitted to réad in evidence, against objection of defendant, the following portion of a deposition of plaintiff taken at Philadelphia, Pa., on the 13th day of February, 1871: '

I reside in the city of Philadelphia, and am the plaintiff in this suit. I knew John F. Thomas in his lifetime; he executed the note sued on, just as it is; it has not been altered in the least.”

To the reading of this deposition defendant objected, when offered, as inadmissible, being testimony of a transaction between plaintiff and intestate in his lifetime, and deponant not being called on by defendant, or required by the court to testify, but the court overruled the objection.

Defendant then exhibited to the inspection of the court the instrument sued on.

J. W. Bradley, witness for defendant, testified that he was an old merchant of many years’ experience in observing the hand-: writing of others, and, upon inspection of the instrument sued on, which was exhibited to him, was of the opinion, from the appearance of the instrument, that the words “when called on,” in it, were in different ink, and written by a different pen from the body of the instrument, or the signature thereto; that the handwriting of said words was not the same as the signature, and he thought appeared to be different from the balance of the body of the instrument, but of this he was not certain.

On cross examination, he stated that when a party would be at his desk, when there should be different inks and pens, he might, upon discovering that an instrument he had written was incomplete, pick up a different pen and use different ink in completing it, all at the time of the transaction, and before the signing of the instrument; witness had done such a thing himself.

It was admitted at the bar, by plaintiffs attorney, that the body of the instrument was in the handwriting of plaintiff.

This was all the evidence.

The defendant asked the court to declare the law as follows:

First — If the instrument sued on appears to have been altered, the burden of proof, on the special plea of non est factum, is shifted to the plaintiff, and it is incumbent on him to explain this appearance.

Second — If the words “when called on,” in said instrument, appear to have been written with a different pen and different ink from the rest of the body of the instrument, and from the signature thereto, this is sufficient evidence to require the plaintiff to remove, by proof, the suspicion thereby attached to the instrument.

Third — If the words “when called on” have been fraudulently added to the instrument by the plaintiff, or by his procurement, since it was executed, this avoids it, and entitles the defendant to judgment against him.

Fourth — The instrument sued on is a property note, or contract for the payment or delivery of cotton, and no right of action could accrue on it to plaintiff until the cotton was demanded of the intestate or his administrator.

Fifth — The law and evidence in the case are for the defendant.

The court gave the first and third of the above declarations, but refused the second, fourth and fifth.

And of its own motion made the following declaration:

In lieu of the fourth declaration asked by the defendant, the court declares that the note sued on is a note for the payment of money with a privilege to the obligor to pay and discharge the same in cotton, at eight cents per pound.

The court found the facts in the case as follows:

First — From an inspection of the instruments sued on, I am of opinion that the words when called on were not written with the same pen or same ink with which the body and signature were written, and that they were not written by the person who wrote the signature.

Second — I find from the evidence that the instrument was not altered or changed by the plaintiff, or by his procurement, after the same was executed and delivered.

Third — I further find that said instrument was not altered or' changed by any person after the same was executed and delivered.

Fourth — In deciding the case, I take judicial notice of the general condition of the country, and the insecurity of property, especially of cotton, at the time of the execution of the note, and for several months afterward.

The grounds of the motion for a new trial were, that the court erred in refusing the second, fourth and fifth declarations of law, asked by defendants, and in the declaration of law as made of its own motion, and in admitting the deposition of plaintiff", and that its finding and judgment were contrary to law and evidence.

(a.) Was the deposition of the plaintiff admissible?

Section 22, Art. 7, of the Constitution of 1868, which was in force when this case was tried, provides that: “ In the courts of this State there shall be no exclusion of any witness, in civil actions, because he is a party to, or is interested in the issue to be tried, etc., etc. Provided: That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify by the court.” Gantt’s Digest, sec. '2482.

In this case, the plaintiff" was not called to testify by the defendant, nor required to testify by the court. His deposition seems to have been taken, in the ordinary mode, on his own behalf, offered in evidence on the trial by his attorney, and admitted against the objection of the defendant.

Part of the deposition is not within the constitutional rule of exclusion.

He states: I reside in the city of Philadelphia, and am the plaintiff in this suit. I knew John F. Thomas in his lifetime.” His place of residence, his being the plaintiff in the suit, and his personal -knowledge of the defendant’s intestate, were matters not directly connected with the note in controversy — not elements of the particular transaction in issue. These facts he could state without any violation of the rule. But he states further : He,” (meaning Thomas,) “ executed the note being sued on just as it is; it has not been altered in the least.”

The first clause in this sentence: He executed the note sued on just as it isrelates directly to the transaction between him and the deceased in issue. The plea alleged that the words when called on,” which appeared in the note sued on, were not in it when it was executed by Thomas, but were fraudulently added by plaintiff, .or by his procurement, after its execution. This was the very matter in issue, and the plaintiff was permitted to testify that Thomas executed the note just as it was when presented at the trial. Such is the substance and effect of the part of the deposition we are considering.

The constitution forbade the plaintiff from testifying as to any transaction with the deceased. The execution of the note by the deceased to the plaintiff was a transaction between them, and whether the note did or did not contain the words “ when called on ” at the time it was executed was a material element of that transaction, and we think it was incompetent for the plaintiff to testify in effect, as he was permitted to do, that these words were in the note when it was executed. Giles, adm’r, v. Wright, 26 Ark., 476; Stanley v. Whitney, 47 Barb., 587; Strong v. Dean, 55 Barb., 337; Stevens, et al., v. Hartley, et al., 13 Ohio State E., 531; Green v. United States, 9 Wallace, 655. The competency of the remaining clause of the sentence, “ it has not been altered in the least,” is not free of doubt. The clause; taken with its context, means: The note has not been altered in the least since its execution.

When the note was signed by its maker, and delivered to the plaintiff, its execution was complete, and the personal “transaction” 'between them, involved in the issue now under consideration, was closed. If the plaintiff altered the note, or procured it to be done, after it was delivered to him, it was an act subsequent to the execution of the note, and the close of the transaction ; in other words, the alteration of the note after delivery, if made, was not a transaction with the maker, or any part of a transaction with him.

Suppose the plaintiff had sworn, more specifically, that after the delivery of the note to him, it was not altered by him, nor by his procurement, he would simply have sworn to the non existence of a fact alleged to have transpired after the execution of the instrument. Such testimony would not relate directly to a transaction with the maker of the note, but it might relate inferentially, or argumentatively, to the execution of the note, which was a transaction with the maker of the note. Thus, the note has not been altered since it came into my possession, therefore the words “when called on” must have been in the note when it came into my hands.

The question is a nice one and not free from doubt, but we . are inclined to the opinion that when it is competent for a party to testify as to the existence or non existence of a fact, he may be permitted to ido so, though his testimony may inferentially affect another fact, or transaction as to which he is incompetent to testify.

But be this as it may, it is sufficient for the purposes of this case, to decide, as we have above, that the court below erred in admitting that clause in the deposition of the plaintiff in which he swears the “that (Thomas) executed the note sued on just as it is.” If the deceased maker of the note had been alive and in court, he might have sworn to the contrary, and the object of the framers of the clause of the constitution in question, was to prevent the living from testifying to transactions with the dead, who cannot be heard in their own behalf, unless the court for the ends of justice, shall require the living adversary to testify.

(.B.) Did the court below err in refusing the second declaration of law moved by the defendant?

The special plea of npn est factum was a plea in confession and avoidance. It confessed the execution of the note, and attempted to avoid it by alleging that it had been fraudulently altered after its execution, by the plaintiff, or by his procurement. The onus probandi was on the defendant. Rogers et al. v. Diamond, 13 Ark., 480; Pope v. Latham, 1 Ark., 66; Chism v. Toomer, 27 Ark., 111.

The court made the first declaration of law moved by defendant, that, “if the instrument sued on appears to have been altered, the burden of proof, in the special plea of non est factum is shifted to the plaintiff, and it is incumbent on him to explain the appearance.”

But the court refused to make the second declaration that, “if the words ‘when called on’ in said instrument, appear to have been written with a different pen and different ink from the rest of the body of the instrument, and from the signature thereto, this is sufficient evidence to require the plaintiff to remove, by proof, the suspicion thereby attached to the instrument.”

Mr. Parsons says: “In the absence of explanation, evident alteration of any instrument is generally presumed to have been made after the execution of it; and consequently it must be explained by the party who relies on the instrument, or seeks to take advantage from it. Such is the view taken by many authorities of great weight. But others of perhaps equal weight, hold that there is no such presumption, or, at least, that the question whether the instrument was written as it now stands before it was executed, or has since been altered, and whether if so altered it was done with or without the authority, or consent of the other party, are questions which should go to a jury, to be determined according to all the evidence in the ease.” 2 Par. on Contr., p. 721-2. He cites cases pro and eon in note (7.)

In 1 Smith’s Leading cases (Hare and Wallace Notes), 961, conflicting cases are also cited, but no attempt to reconcile them, or to state what rule is supported by the weight of authorities.

We have examined with care the cases cited by counsel for appellant.'

JaeJcson v. Osborn, 2 Wend., 555 : In this case the plaintiff offered in evidence a deed, in which it appeared that the name of the grantee was written on an erasure, in a handwriting different from, and, to appearance, written some considerable time after the residue of the written part of the deed, but (as the greater part of the witnesses thought) not after the signatures of the grantors to the deed. The court held that the erasure appearing on the face of the deed was a suspicious circumstance, and required some explanation on the part of the plaintiff.

In Ely v. Ely, 6 Gray, 439, the plaintiff offered in evidence a mortgage, upon the face of which appeared to be interlined a clause of general warranty, etc. The defendant offering no extraneous evidence in relation to the deed, and it appearing to the court, upon inspection, that the interlineations were in the same handwriting and ink, and that, so far as could be judged by the color of the ink, were made at - the same time as the rest of the body of the mortgage, the court allowed the mortgage to be read to the jury, but instructed them that the burden of proof Avas on the plaintiff* to shoAV that the interlineations, etc., were made before or contemporaneous with the execution of the mortgage, and that, in the .absence of all proof to the contrary, as fraud was never to be presumed, the presumption of law was that the interlineations, etc., were made prior to or contemporaneously with the execution of the mortgage. The Supreme Court said that upon the question of the interlineations, the court below rightly instructed the jury that the burden of proof was upon the plaintiff to show that they were made before the delivery of the mortgage. But that the further instruction that, in the absence of all proof to the contrary, the presumption of law was that the interlineations, etc., were prior to or contemporaneous with the execution of the mortgage, was wrong; that there is no such legal presumption; that the burden is on the party offering the instrument to prove its genuineness, and that alterations apparent on its face were honestly made. To what extent he shall be required to introduce evidence will depend upon the peculiar circumstances of each case. The alterations may be of such a character that he may safely rely upon the paper itself, and the subject matter, as authorizing the inference that thealtei’ation was made before the execution, or he may introduce some very slight evidence to account for the apparent interlineation. But there is no presumption of law, either that the alterations and interlineations apparent on the face of a deed were made prior to the execution of the instrument, or that they were made subsequently. That question is to be settled by the jury, upon all the evidence in the case offered by the parties, and the surrounding circumstances, including, of course, the character of the alterations and the appearance of the instrument alleged to have been altered.

In Wheat v. Arnold, 36 Georgia, 482, the plaintiff offered in evidence the note sued on, and its admission was opposed on the ground that it had been altered, erased, interlined, ante dated, increased to a larger amount, etc. Held that if, on the production of an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance.

In Hill v. Cooley, 46 Penn. State R., 260, it was alleged that the words “Payable at N. Holmes & Son” had been added to the' note sued on, and offered in evidence by the plaintiff, after it was signed, and the appearance of the note favored the allegation. The words were admitted to be in the handwriting of one of the payors who wrote the body of the note. Had they been written in a straight line from where they started, they would have interfered with the signature, but they started upward so as to avoid it, and they gave the paper a very suspicious aspect. The court held that the words added were a material alteration, were sus- • picious in appearance, and that the onus of explaining them was on the plaintiff, before the admission of the note.

In Porter v. Doby, 2 Richardson’s Eq. Rep., 51, it appeared that the seal was carefully cut from the obligation offered in evidence, leaving a mere filament by which it was allowed to remain attached to show what had been the character of the instrument. The seal was as effectually destroyed as if it had been crossed or erased. Held that the alteration was attributable to him who had been in possession of the instrument, unless he accounted for it.

In Shelden v. Hawes, 15 Mich., 522, it was alleged that the •words “at ten per cent, interest” had been interpolated in the note sued on. They were in different ink from the rest of the note, and not written in a manner usually to be expected in such papers. It was held that the alteration being peculiar in appearance, and favorable to the plaintiff by adding three per cent, to ■the interest, created sufficient ground of doubt to require some ■explanation.

In Dow v. Jewell, 18 New Hamp., 356, and in Burnham v. Ayer, 35 ib., 352, held that when a material alteration or erasure appeared on the face of the deed, the presumption Avould be that it was done after'execution,Sunless accounted for by the party producing it.

In Cole v. Hills, 44 New Hampshire, 234, a later case than those cited from the same State by the counsel for the appellant, the court, after a review of cases, said: “It seems to us, then, that the proper rule is that the instrument, with all the circumstances of its nature, its history, the appearance of the alteration, the possible or probable motives to the alteration, or against it, on the part of all persons connected with it, or in whose possession it may have been, and the effect of the alteration upon the rights and obligations of the parties, respectively, ought to be submitted to the jury, Aiho should find from all these whether the alteration was made before or after its execution, and if after,. Avhether it was with, the assent of the adverse party, and, consequently, whether it rendered the instrument invalid or not.. Whether the handwriting of the alteration is the same with the body of the instrument, Avhether it is the same with that of the signature, Avhether the ink is the same or different, whether,, from the appearance, the body of the instrument and the alteration were written at the same time or at different times, whether the party claiming or the party sought to be charged is to be benefited by it, whether the alteration was made before or after its' execution, and if after, by whom, and for what purpose, are all questions of fact for the consideration of the jury. It could serve no good practical purpose for the court to.go into these inquiries first, to determine whether a party has made a prima facie case. Upon the usual proof of the execution of the instrument, it should, without reference to the character of any alteration upon it, be admitted in evidence, leaving all testimony in relation to such alteration to be given to the jury,' with proper instructions upon the facts in each case. Beaman v. Russell, 20 Vt., 205; Baily v. Taylor, 11 Conn., 331. In ninety-nine cases in every hundred the jury would be able to settle the question readily upon a preponderance of the evidence, where they should consider the paper in connection with all the circumstances above stated. But if they should not be able to do so, and could not find any preponderance of the evidence as to when the alteration was made, or if there is an entire absence of evidence and of circumstances, both in the instrument and in the evidence aliunde, from which an inference can be legitimately drawn as to the time when it was actually made, then the presumption arises that the alteration was made after the execution of the instrument; and this is a presumption of fact which the jury are to make under the proper instructions of the court, where they shall be unable to find the fact from any evidence or circumstances in the case. That is clearly the doctrine of our decisions. Hill v. Barnes, 11 N. H., 395; Burham v. Ayer, 35 N. H., 354.

We have also carefully examined the cases cited by counsel for appellee.

In Hunt v. Gray, 35 New Jersey, 228, the court said: “There was a material interlineation apparent on the face’ of the note in suit, and the first question which arose at the trial was whether the plaintiff was bound to explain such circumstance before resting his case. Prof. Parsons, in his treatise on Contracts, vol. 2, p. 228, says ‘ that, in the absence of explanation, evident alteration of an instrument is generally presumed to have been made after execution of it, and consequently it must be explained by the party who relies on the instrument, or seeks to take advantage of it.’ This doctrine is assuredly sustained by many authorities, but the learned author just referred to admits that the opposite view has an equal sanction in judicial opinion. In England there are several cases to the effect that if a bill or note exhibit the appearance of alteration, the holder must account for it. But these decisions are all of recent date, and appear to be based as much on reasons derived from the policy of the stamp acts as from considerations resting on the general principles pf the law. On the other hand, a large number of the authorities in this country adopt the rule that when an alteration exhibits itself on the face of an instrument, it must be submitted to the jury with attendant circumstances, and that there can be no judicial presumption founded on inspection that the change was made after the execution of the paper, whether under seal or otherwise. The cases on both sides of this question are collected with much fullness in the notes to the last edition of Smith’s Lead. Cas., vol. 1, part 2, p. 1168. But whatever the rule of law in this respect may be elsewhere, the practice in this State has always been to refer, under ordinary circumstances, the question as to the time of the alteration of a written instrument to the consideration of thé jury. The mere fact that the writing presents symptoms or evidence that a change has been made in the language employed, does not of itself create a legal intendment that such alteration was effected subsequently to the perfection of the contract.”

In Den v. Wright, 2 Halst. (N. J.), 176, on motion to overrule a deed on account of two alleged erasures and alterations which had not been accounted for, the rule was directly put in force that it is the province of the jury to decide whether an alteration be made before or alter the sealing of the instrument. Same view of the case in Cumberland Bank v. Hall, 1 Hals., 215.

In Davis v. Jenny, 1 Met., 221, the question as to when the alteration of the bill was made was left to the jury on the appearance of the paper, its character, relations of the parties, etc. Chief Justice Shaw expressing no opinion as to the presumption of law.

In Gooch v. Bryant, 13 Maine, 389, there was no other evidence of the alteration of the note than what arose from inspection, from which it appeared that one of the figures in. the date had been altered. The important inquiry, said the court, was when the alteration was made. If altered after signing and delivery, it would vitiate the note ; if before,, it would not.. As to the time, no evidence was offered by either party. The alteration was not, in itself, proof that it was done after signature ,- it might have been made before. If the alteration was prima fade evidence that it was done after, it must be upon the ground that such is the presumption of law. But we do not so understand it. It would be a harsh construction, exposing the holder of a note, the date of which had been so altered as to accelerate payment or to increase the amount of interest, to a. conviction of forgery unless he could prove that it was done before signature. It would be to establish guilt by a rule of law when there would be at least an equal presumption of innocence. But such cannot-be the law; it is a question of evidence, to be submitted to the jury,”

In Beaman’s adm’r v. Russell, 20 Vermont, 213, after a review of English and American cases, the court said: “ Amid the conflict of authorities in this country, and with the little aid that can be derived from the modern English cases, I should be disposed to fall back upon the ancient common law rule, that. an alteration of a written instrument, if nothing appears to the contrary, should be presumed to be made at the time of its execution. I think this rule is demanded by the actual condition of business transactions of this country, and especially of this State, where a great portion of the contracts made are drawn by the' parties to them, and without great care in regard to interlineations and alterations. To establish an invariable rule, such as is claimed in behalf of the defendant, that the party producing the paper should, in all eases, be bound to explain any alteration by extrinsic evidence would, I apprehend, do injustice in a very great majority of the instances in which it should be applied. Such a rule might be tolerated — might, perhaps, be beneficially adopted — in a highly commercial country like Great Britain, in regard to negotiable paper, which is generally written by men trained to clerical accuracy, and is upon stamped paper, the very cost of which would induce special care in the drawing of it, but I am persuaded that-its application here could not be otherwise than injurious. It is not often that an alteration can be accounted for by extraneous evidence, and to hold that, in all cases, such evidence must be given, without regard to suspicious appearances of the alteration would, I think, in many instances, be doing such manifest injustice as to shock the common sense of most men.”

In Wishes v. Cauld, 5 Harris & John., 41, the names of the attesting witnesses were erased from the deed offered in evidence, but whether before or after execution did net appear: Held, that it was incumbent on the party wishing to avoid the deed to prove that the .erasure was made after its execution; that the court was not bound to presume that the ei'asure was made by the grantee, or those claiming under him, after the execution of the deed.

In Clark v. Rogers, 2 Greenleaf, 147, it appeared that names were added to the instrument offered in evidence: Held, that fraud or forgery was not to be presumed. We have also examined a number of authorities not cited by the counsel for the parties.

In Huntington et al. v. Finch & Co., 8 Ohio State Rep., 449, the court said: “ The rule established by the greater weight of authority, both in England and in this country, appears to be that when the alteration is suspicious, and beneficial to the holder of the paper, the party seeking to enforce it is required to explain it before he can recover; but when the alteration is not peculiarly suspicious and beneficial to the holder, the alteration will be presumed to have been made either before the execution of the paper or by the consent of the parties.” This rule, in effect, is supported by Bailey v. Taylor et al., 11 Conn., 531; Tillon v. Clinton & E. Ins. Co., 7 Barb. S. C., 565; Stoner v. Ellis, 6 Ind., 161; Farnsworth v. Sharp & Co., 4 Sneed, 56.

Mr. Greenleaf says: Generally speaking, if nothing appears to the contrary, the alteration will be presumed to be' contemporaneous with the execution qf the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury, upon proofs to be adduced by the party offering the instrument in evidence.” 1 Greenleaf Ev., sec. 564.

In this State we all know that many mstruments are written by unskillful persons, and that erasures, interlineations, etc., frequently appear on the face of notes, bonds, bills, deeds and other contracts. We are, therefore, not disposed to sanction a more rigid rule than that expressed in the paragraph above copied from 3 Ohio State Rep., which seems to be in harmony with the views of Mr. Greenleaf.

Persons holding and expecting benefit from instruments have’ two motives not to alter them: First — If the alteration be material it avoids the instrument; and Second — It is a criminal act. Yet such alterations have frequently been made by persohs who hoped to avoid detection and escape punishment. If the alteration is suspicious, and beneficial to the party producing and relying on the- instrument, it is, perhaps, incumbent on him to explain it, but the question is for the jury on the appearance of the instrument, circumstances connected with it, and any evidence introduced by the parties.

In this case the plaintiff read the note in evidence without objection, and was permitted to read his own deposition. Defendant called a merchant of experience, who was of opinion that the words when called for were written with different pen and ink from the body and signature of the note. There seems to have been no indication, however, on the face of the instrument that they were written at a later period. They might have been added, the witness conceded, with a different pen and ink at the time the note was executed.

Whether there was anything in the appearance of the words alleged to have been added to the note after its execution calculated to awaken suspicion that the instrument had been tampered with we do not know, as the original is not before us. The court below could judge better of this than we can.

We cannot hold, therefore, that the court erred in refusing to make the second declaration of law moved by the defendant.

It was the province of the court, sitting as a jury, to determine the issue from the appearance of the instrument, and the evidence submitted in connection with it. The law raised no presumption that the instrument had been fraudulently altered by the plaintiff.

The court found the issue for the plaintiff, and we should not be disposed to disturb its finding if the deposition of the plaintiff had been excluded, but a portion of it was, as we have seen, incompetent, and we cannot undertake to say that the finding was not influenced by the incompetent portion of the deposition.

(c) The court below, in refusing the fourth declaration of law asked for plaintiff, and in making a contrary declaration of its own motion, decided, in effect, that the note sued on was not a property note, but a money note, with a privilege to the maker to discharge it in cotton, and that demand before suit was not necessary.

In Jeffrey v. Underwood, 1 Ark., 108, the instrument was: “On or before the 25th of this month I promise to pay John'I. Underwood fifty dollars, to be paid in a horse, to be valued against good trade, for keeping the mare.” The instrument was sealed. Held, that it was a property obligation, and debt would not lie upon it.

In Hudspeth et al. v. Gray & Go., 5 Ark., 157, the note was a promise to pay William F. Pope, or order, ninety days after date, $702.30 in Louisiana funds, with interest, etc.: Held, that it was not a money note, but payable in the bank notes of Louisiana, issued for circulation, and that neither debt nor indebitatus assumpsit would lie on the note. That a special action on the case in assumpsit was the proper remedy.

In Day et al. v. Lafferty, 4 Ark., 450, the obligation sued on was: “$129.50. By the first of April next we promise to pay Lorenzo H. Lafferty one hundred and twenty-nine dollars and fifty cents, for value received, payable in current Arkansas bank notes.” Dated 24th December, 1840. Signed and sealed by the obligors.

The defendants pleaded tender after the day of payment named in the obligation, and a demurrer was sustained to the plea. This court, by Mr. Justice Dickinson, said : “We consider the law well settled that, if a party consents to pay specific articles, he must meet his contract at the time and in the manner specified. Tender cannot be made after the day, unless the damages are capable of being reduced to certainty by computation, nor can it be pretended that it is possible to do so, in this instance, without the intervention of a jury. Even if a party failed to make a defense, a writ of inquiry must issue to ascertain the damages. It is, therefore, not one of those cases in which the doctrine of tender is -applicable.” The effect of this decision is that the ■ obligation sued on was not payable in money but in bank notes, the value of which would have to be assessed as damages.

In Gregory v. Bewley et al., 5 Ark., 318, an action of debt was brought on the following obligation: “ One day after date we, or either of us, promise to pay to Hawkins Gregory, executor, etc., the sum of two hundred and twenty-seven dollars and twenty-five cents, with interest, etc., which may be discharged in Arkansas money, for value received.” Signed and sealed January 26th, 1842. A demurrer was interposed to the declaration, on the ground that the action should have been covenant, and not debt: Held, in effect, that the obligor had the privilege of paying the obligation in Arkansas money at its maturity, but failing in that, the obligation lost its alternative character, and became a simple and absolute bond for the direct payment of mpney, and that debt would lie.

In Vance v. Bloomer, 20 Wend., 196, the note was: “Hue G. Bloomer or bearer 44 dollars 30 cents, to be paid in ready-made clothing after this date.” Held, that it was a property note, and there must be a demand of clothing and refusal before suit. See cases cited.

In Crockett v. Moore, adm’r, 3 Sneed, 147, debt was brought upon the following note: “ Hue James Hunter eight hundred dollars, payable in good bar iron, at six and one-fourth cents a pound, being- for value received of him this 24th April 1841.” The instrument was sealed, and it was insisted that the action should have been covenant and not debt. The court conceded it to be a property obligation, but held that on failure to pay it in iron, the price of which was fixed in the instrument, the measure of damages was the sum named in the obligation, which being a sum certain, debt would lie. Similar ruling in Marrigan v. Page, 4 Humph., 247, where the promise is to pay a stated sum by a day named, which may be discharged in cotton at the market value, to be delivered at a place mentioned, it is a property note up to the day of payment, but if the promisor fail to avail himself of the privilege of paying in cotton by the day named, then the sum stated in the note becomes a money debt. Bloomfield v. Hancock, 1 Yerger, 101; Lawrence v. Dougherty et al., 5 Yerger, 435.

But such is not the character of the note before us. The sum to be paid is stated; the place where the cotton was to be delivered is mentioned, and the price per pound fixed, but no time of delivery was agreed on; the maker of the note was to deliver the cotton at Des Arc, when called on. Until demand and failure to deliver the cotton the maker of the note was not in default. “Due Leon Cans $895.25, borrowed money and payment for a mule, for which I promise to deliver cotton at Des Arc, at eight cents per pound, when called on.” The plaintiff it seems, loaned the promisor some money, (Confederate, perhaps, from the date and place named in the note,) and let him have a mule, and the money and price of the mule amounted to the sum named in the note, which was to be paid in cotton delivered at Des Arc, at the rate per pound agreed on, when demanded. Such, we think, is the manifest meaning of the contract, as indicated on its face. Could the plaintiff have sued the maker of the note immediately upon its execution without demanding the delivery of the cotton ? Had the maker of the note taken the cotton to Des Arc on the next day, without demand, and offered it to plaintiff, would he have been obliged then to accept it? We think both questions must be answered in the negative.

Perhaps if the plaintiff had delayed making the demand for an unreasonable length of time, the maker of the note would have been privileged to tender the cotton without demand, but surely the plaintiff could not convert a cotton into a money debt by merely neglecting to call on the debtor for the cotton. If, while the maker of the note was living, the plaintiff had sued him in the Circuit Court on the note, he would have been ®bliged, we think, to aver a demand of the cotton, and failure to deliver it before suit, and if this allegation had been put in issue by a proper plea, the plaintiff would have been bound to prove it on the trial, or fail in his action. But Thomas, the maker of the note, died, (the record does not show when,) and Gist, the appellee, became his administrator. Suppose the plaintiff had gone to him, after he had qualified as administrator, with the note, and demanded that he deliver at Des Arc cotton enough at eight cents a pound to pay the note, could the administrator legally have complied with such demand ? Surely not, because, under our system of administration, all claims against the estates of deceased persons, payable out of the general assets, must be properly authenticated, allowed, classed and ordered paid by the Probate Court, before the administrator can legally pay them. Walker, as adm’r, v. Byers, 14 Ark., 246.

The plaintiff, therefore, pursued the proper course with his claim. He authenticated it by affidavit, and on the 20th day of July, 1867, caused, a notice to be served on the administrator (furnishing a copy of the claim) that on the 12th of August of the same year, he would present the claim to the Probate Court for allowance and classification. ¥e have above stated what proceedings were had in the Probate Court.

The case was tried in the Circuit Court on the appeal, 5th September, 1872, and judgment rendered in favor of the plaintiff for $895.25, the sum specified in the note, with six per cent, interest added, not from the date of the note, but from the time the notice was served on the administrator, making the total sum of $1,170.50, with an order that the judgment be certified to the Probate Court.

There may be claims that take precedence of this, or the estate may be insolvent, and only a pro rata can be paid on it. How then could the administrator, upon demand of him, and in advance of any action by the Probate Court, legally undertake to pay the debt by delivering cotton at Des Arc at eight cents per pound ?'

It was a claim properly adjustable in the Probate Court, to which the plaintiff resorted.

But, for the error of the court below in admitting the plaintiff's deposition, as above indicated, the judgment must be reversed and the cause remanded for a new trial.