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CONFEDERATE MONEY.—In a contract, the consideration of which was Con
federate notes, it is immaterial whether the party first agreed to pay money for such notes, or to pay property for them, and then executed a promissory note for the property, the consideration, which was the
basis of the promise, being Confederate notes, was illegal, null and void. PROMISSORY NOTE.-A promissory note given for a supposed liability, which
has no foundation in law, is without consideration and void.
Ashley Circuit Court.
Hox. HIENRY B. MORSE, Circuit Judge.
G. W. Norman, for appellant.
W. D. More, English, Gantt & English, for appellee.
The appellee brought his complaint at law upon a note for $1000. The appellant answered the complaint, by admitting the making of the note, and averring that she had sold the appellee one hundred bales of cotton, for two thousand six hundred dollars, in treasury notes of the so-called Confederate States, then in rebellion against the United States government, and she received the two thousand six hundred dollars in such treasury notes, and gave her receipt for the same, and agreed to deliver the cotton, and did deliver sixty-six bales, which were afterwards sold by appellee for $8,717 o, in United States currency, and the balance of her cotton, without fault of hers, being burned, at the instance of the appellee she executed the note, sued upon, as the balance of the consideration on her part in said agreement, and for no other consideration; that said treasury warrants were utterly valueless and void, etc.
The appellee demurred to the answer. The circuit court sustained the demurrer, and rendered final judgment against the
appellant for the amount of the note and interest, from which judgment she appealed to this court.
The appellee here says: “The only question presented by the transcript is: Was there a consideration for the note sued on?"
There was an agreement by the appellant to transfer a considerable amount of valuable property, and an agreement on the part of the appellee to pay her a certain amount of notes, which this court has repeatedly held to be illegal and void. If the promise was made by the one party, without any consideration on the part of the other, such promise cannot be held binding. If this answer be true, and for the purposes of the demurrer it is taken as true, the appellee paid over Confederate notes; he neither paid, nor promised to pay any thing else, then there was no consideration moving from him but the Confederate notes, and it is not material whether the appellant first agreed to pay money for such notes, or to pay property for them, and then executed the note in lieu of the property; the consideration, which was the basis of the promise, was Confederate notes received. That, and that alone, was all that was given, or to be given, for the cotton or note. Then, if these notes were illegal and valueless, the appellee sustained no injury in passing them to the appellant, nor did he thereby confer any benefit upon her; and it has been holden that such notes, issued in violation of the laws of the State and United States, and to aid in the rebellion against the lawful government, must be so considered.
A promissory note, given for a supposed liability, which has no foundation in law, is without consideration and void. Haynes v. Thorn, Foster, 386.
It therefore, follows that the circuit court erred in sustaining the demurrer to the appellant's answer. For that error the judgment is reversed, and the cause remanded, with instructions to overrule the demurrer and to proceed according to law.
CONFEDERATE MONEY.-In a cor
corts that may be set up in an answer, federate notes, it is imm money for such notes, o
Raction 116, Code of Practice, stand each promissory note for
Furrer may be sustained as to some and basis of the promis PROMISSORY NOTE.- .
terstood that a litigant is not bound to prore bas no foundat
plea or defense, not denying title in plaintiff, ndant, is bad on demurrer.
The appellant be circuit court. 1870, the appa
county by the
npellant brought his complaint at law, in the Ashley court, for three bales of cotton; at the March term, The appellee filed his answer containing four paragraphs.
first: That martial law had been proclaimed in the ty by the Governor; that civil law was suspended, and the ernment of the county turned over to military officers,
A. Lockhart was such officer in command of that county, and by his order the appellant was required to turn over the cotton to George W. Norman, as the administrator of Rufus Whitlow.
The second : That Norman, as administrator, under such order, directed appellant to turn over said cotton to the appellee, and it was so delivered for said Norman.
The third: That the appellee, under Norman's order, received the cotton and “turned it and the proceeds of it," orer to Norman.
The fourth: That the cotton was the property of Norman, as such administrator, and that appellant had taken the same
without right, and that the cotton was turned over to Norman, who, as administrator, was the owner.
The appellant demurred to the first three paragraphs or causes of defense in the answer; the court overruled the demurrer; the appellant rested, and final judgment went against him for costs, from which he appealed.
The third and fourth paragraphs of section 116, of the Civil Code, relating to what the answer of a defendant shall contain, read as follows:
“Third. A statement of any new matter constituting a defense, counter claim or set off, in ordinary and concise language, without repetition.”
“ Fourth. The defendant may set forth in his answer as many grounds of defense, counter-claim, and set oft, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” Section 121, provides that the plaintift may demur to the answer, etc.
Thus it is declared that a defendant may set up any number of defenses he may have, but each defense must be separately stated, in a paragraph distinguished by number. Then each of these pleas, or paragraphs of defense, stands upon its own merits. A demurrer may be sustained as to some paragraphs and overruled as to others.
The question then recurs, do the facts set up in the first paragraph constitute a defense? This paragraph does not claim that the cotton belonged to Norman, to the appellee, or Whitlow's estate. It admitted the taking and did not deny ownership in the appellant; it did not aver any public or military necessity for taking the property, and that he was required by military order to take the same. It is a rule, well understood, that a litigant is not bound to prove more than he avers; hence the demurrer should have been sustained to this paragraph.
The second paragraph is equally bad. It does not deny the
Mason, Ad. ". Bull, Ellis & Co. (DECEMBER
appellant's ownership of the cotton. It admits the taking and avers he did it under an order from Norman, without claiming that Norman had any title to the cotton.
The third paragraph, likewise, avers that appellee took the cotton and turned it, and the proceeds of it, over to Norman, without averring title in Norman, or want of title in appellant, or that he was compelled, by military order, to take the cotton, and it was demurrable.
The fourth paragraph is different. It denies appellant's right; sets up title in Norman, as administrator, etc., and, if true, is a good defense to the action.
For the error in not sustaining appellant's demurrer, the judgment is reversed, and the cause remanded with instructions to allow the pleadings amended herein, and for further proceedings to be had according to law.
Masox, Ad. v. BULL, ELLIS & Co.
ADMINISTRATION— Authentication of Claims.—Verification of claims against
the estate of a deceased person, by one cognizant of the facts, under act of March 5, 1867, or by agent or attorney, under act of March 18, 1867,
is sufficientand these acts are not in conflict with each other. RECORDS-Proof of.-Parol evidence is admissible to prove the contents of a
record, ancient or recent, after proof of its loss or destruction, satisfactory to the court.
Appeal from Pope Circuit Count.
Hon. William N. MAY, Circuit Judge.
Clark of Williams, for appellant.
The claim was not authenticated by affidavit, as required by