Waymack . Heilman, et al.

[JUNE

Wassell & Moore, for appellees.

BENNETT, J.

sum.

In October, 1864, John II. Rosenbaum executed to Micajah Waymack, the appellant, his writing obligatory for $500, and a mortgage on lands, in the county of Pulaski, to secure the Rosenbaum died, leaving the appellees his heirs at law. In 1866 Waymack filed his bill to foreclose the mortgage; appellees answered the bill, setting up, as a defense, that the consideration of the writing obligatory and deed of mortgage was "Confederate money," lent and advanced to Rosenbaum by appellant. The bill was dismissed for want of equity; complainant brought error. There are but two questions presented

by the bill, answer and proof.

First. Is the proof adduced sufficient to sustain the averments in the answer?

Second. Is a contract, the consideration of which is Confederate money, illegal and void?

The first is a question of fact, the second a question of law. The answer was supported solely by the deposition of Henry C. Heilman, the son of the defendant, Mrs. Heilman, who testified "that he saw Mr. Waymack, the complainant, at the house of the defendant, Mrs. Heilman, and he proposed to sell her a mortgage on John Rosenbaum's tract of land. He (Waymack) said that John Rosenbaum had made the mortgage to him for $500, in Confederate money, and he offered to sell it to her (Mrs. Heilman,) for half the amount in greenbacks."

This was all the testimony in the case. It is urged by appellants that parol evidence cannot be introduced to show consideration, as the action is founded upon a written instrument. We e can see no point in this objection. Although it is a settled principle, both in the English and American courts, that parol evidence is not admissible to contradict, vary or materially affect, by way of explanation, a contract in writing, upon the ground that written evidence is of a higher grade than the

TERM, 1871.]

Waymack v. Heilman, et al.

mere verbal declarations of witnesses, and consequently when parties have agreed upon terms of a contract, which is afterwards reduced to writing, the verbal agreement is merged into the written contract. Yet it has been often held as no violation of these doctrines, or if so, in terms as well settled as these doctrines themselves, that although, upon the face of the instrument in writing, the usual expression of consideration, such as "for value received," may be found, yet the maker may show, as against the payee, or other person standing in the same situation, that the note or bond was given without consideration, or that the consideration has failed, or that fraud, in respect to it, was practiced upon him by the other party and under some circumstances, that the consideration was illegal. The American cases to this point are collected by the learned annotators upon Phillips' Evidence, Cowen & Hill, Ed. 3 vol. 158-172.

The rule which forbids the admission of parol evidence to contradict or vary a written contract, is not infringed by any evidence of known and established usage respecting the subject to which the contract relates. See Vaugine et al. v. Taylor et al., 18 Ark. 65; Clinton v. Estes, 20 Ark. 216, and cases there cited.

The question of admissibility having been disposed of, it remains but to ascertain whether the testimony presented sustains the answer. The evidence, though weak, we think was sufficient for the chancellor to have found that the consideration of the note, for the security of which the mortgage was executed, was for Confederate money.

Was such a contract illegal and void? We deem this question as res adjudicata. The language of this court in the case of Latham v. Clark, 25 Ark. 574, is conclusive.

The doctrine seems now to be pretty well settled that the courts, in cases where the contract is founded upon an illegal consideration, will leave the parties where it finds them, giving no relief and no countenance to claims of this sort.

Finding no error in the proceedings of the court below, the decision will be affirmed.

[JUNE

Palmer v. McChesney.

PALMER V. MCCHESNEY.

MANDAMUS---Hearing upon.-Under section 519, Code of Practice, the hearing upon mandamus is to be by the court, and not by the judge at chambers.

SPECIAL JUDGE--Election of.---Under section 758, the clerk is not authorized to hold an election for a special judge at chambers.

APPEALS--- What requisite.---Appeals only lie from the final orders or judgments of the circuit court, and only from such final orders or judgments as cannot be corrected, on motion, in the court below, and not then, until the question has been submitted to and overruled by the inferior court.

Appeal from Independence Circuit Court.

HON. ELISHA BAXTER, Circuit Judge.

Watkins & Rose, for appellant.

Montgomery & Warwick, for appellee.

MCCLURE, C. J.

This cause comes here from Independence county. It ap pears, from the transcript in the case, that McChesney, as school trustee, presented to the judge of the Independence cir cuit court, at chambers, a petition for a mandamus, the prayer of which was to compel the appellant to pay over to him certain money collected as school funds. The defendant demurred to the petition; the judge overruled the demurrer, and the appellant answered. It is not necessary to say anything about the matters set up in the answer, only that the multitude of counsel evinced great ignorance of the law.

The appellant filed with the clerk an affidavit, under the provisions of section 758, stating that he did not believe that the judge would give him a fair and impartial trial, together with a motion for a special judge, which motion was overruled by the court. Thereupon the judge awarded a mandamus against the appellant, and Palmer prayed an appeal to this court, and filed a supersedas bond. All these proceedings occurred at chambers. Section 517 of the Code says: "The court

TERM, 1871.]

Palmer v. McChesney.

shall hear and decide all questions of law or fact arising on the motion, and the granting or refusing of the writ shall be the final order in the motion."

Section 518 says: "During the pendency of the motion, the court, or judge, in vacation, may make temporary orders for preventing damages or injury to the applicant, until the motion is decided."

Section 519 says: "The writ of mandamus, as treated of in this chapter, is an order of a court, of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law," etc.

The language of the Code, just quoted, goes to show, clearly, that the hearing upon mandamus is by the court, and not by a judge at chambers. At a hearing at chambers, it very seldom happens that there are any attorneys present, save such as are employed in the case. How, then, can the clerk, under the provisions of section 758, hold an election for special judge, of the practising attorneys of the court, not engaged in the case?

Appeals only lie to this court from the judgment or final order of the circuit court, (section 566), and they only lie in relation to such final orders and judgments as cannot be corrected, on motion, in the lower court, and not then, until the inferior court has had the question submitted to it, and has overruled the same. (Section 886.)

The transcript, in this case, does not purport to be the copy of the record of any court of this State, and, of course, does not show the final order or judgment of any court.

The case will be stricken from the docket.

English & Wilshire v. Chicot County.

ENGLISH & WILSHIRE v. CHICOT COUNTY.

[JUNH

COUNTY-Powers of—how construed.--Counties are political corporations, and as such, their powers are strictly construed.

AUDITING ACCOUNTS.---The power to audit and settle claims for or against a county, must be confined to such claims as the county had authority to contract.

SUBSCRIPTION TO RAILROAD STOCK.---The power to subscribe the internal improvement fund of a county, to the capital stock of a railroad company, does not carry with it the power to make the county responsible in her political character.

CANNOT ISSUE BONDS IN PAYMENT.---The act of January, 25, 1855, authorizing counties, "having or controlling internal improvement funds or credits granted to it by the State," to subscribe to the capital stock of any valid, duly authorized railroad company, did not authorize the counties to issue bonds of the counties in payment thereof, which, by any possibility would have to be paid by the tax payers of the county.

Appeal from Chicot Circuit Court.

HON. H. B. MORSE, Circuit Judge.

English, Gantt & English, for appellants.

The county court of Chicot had authority to subscribe the internal improvement fund of that county; see sec. 52, chap. 101., p. 713, Gould's Dig.; and that the Mississippi, Ouachita and Red River railroad company, was a valid and duly authorized railroad company; see State v. same, 20 Ark., 495, on quo warranto. Having authority to subscribe for stock, the power to issue its bonds, for stock taken, follows as an incident. Seybert v. City of Pittsburg, 1 Wallace U. S., 272; 2 ib., 110; Commonwealth ex rel., Ribneth v. Council Pittsburg, 41 Penn.State R. 278; and the presumption is, that the bonds were regularly issued; Hartrup v. Madison City, 1 Wallace, 291. Even if there were irregularities in issuing the bonds, they are nevertheless valid in the hands of bona fide holders; Mercer Co. v. Hacket, 1 Wallace, 83; ib., 392.

Garland & Nash, for appellees.