27 Ark.] OF THE STATE OF ARKANSAS. 303 TERM, 18711 Cooksey. v. McCrery. COOKSEY v. McGRERY. CONFEDERATE MccvEv-7 -Not a valid parnent.—The payment in confederate money is not a valid discharge or payment of a debt or obligation. (Thompson ps. Mankin, 26 Ark., 586, a.nd Vinsaint vs. Knox, page 266. Approved.) APPEAL FROM DALLAS CIRCUIT COURT. Hon. E. J. SEARLE, Circuit Judge. English,. Gantt & -English, for Appellant. Gallagher, Newton & Hem . pstead, for • App' ellee. GREGG,' J.—The appellee -brought his' . suit, to' the • -March term, .1868, of the Dallas Circuit Court, upon . a bond, . executed by the appellant to Benjamin E. Williamson, • on the 27th of June, 1867, for • the , sum of $400, conditioned, that_ whereas said Williamson had• purchased, certain Internal ImprOvement Lands from / the State, and . executed his note in the sum of $200 therefor, and that the . said Cooksey • should well and tru-, . pay off said note and safely - indemnify said- 'Williamson from any -damage or loss, •and transferred to -him the certifi7 cate of purchase. And he alleged, as a breach, that the said appellant._ did not . indemnify • and save said Williamson from damage, but neglected and failed to pay off said note when the same became due and payable, or, thereafter, but that on the 20th day of February, 1863, said Williamson' died, and afterwards ters of administration were granted N. A. Williamson and J. D. Bellah, and that in November, 1863, said note was presented to them as • such administrators, and they paid off the same, and that thm-eaf ter their letters of adm inistration were revoked and letters de bonis non granted to appellee, and that he, as such administrator, had sustained damages to the amount of $400. At the April term, 187 . 0, , the appellant appeared and fired four, . pleas. - The first, that the, plaintiff had . not been -damaged. The •second, that the appellant was ready and willing to pay .
304 CASES IN THE SUPREME COURT ' [27 Ark. Cooksey v. MeCrery. '[HECEMBEli cff and discharge said writing obligatory when the same became due, but the same was then in the hands of the officers of the government of the .State of Arkansas, then in rebellion against the government of the United States, and that, while :Aid writing obligatory, in said bond referred to, was in the 'Rands of said officers, then in rebellion, said plaintiff paid off: the same 'to them. .The third, that on the 18th of November, 1863, the plaintiff paid off said writing obligatory, to the officers of the State, then in rebellion, in confederate money, Arkansas war bonds or Arkansas treasury notes, which money had been issued and put in circulation to carry on war ,against the United States ; and . .thus said writing came into the hands of said plaintiff, contrary to public policy. The, fourth, a general averment of payment in confedeiate money, to officers engaged in rebellion, etc. • The pleas were all duly sworn to. At the September term, 1870, 'the court sustained a demurrer to all the pleas, and the appellant declining to plead further, a jury was enipaneled and assessed the appellee's damages at three , hundred and fifty-nine dollars, whereupon the court rendered judgment for the . penalty of the bond and ordered exebution for the amount of damages so assessed, from which ruling and judgment this appeal is prosecuted. •The first plea seems to be bait a general . issue. The appel-lee alleged, that by reason of , the appellant's failing to comply with the conditions in his bond, he was damaged in the sum of four hundred dollars ; the plea avers that the •appellee had not, at any time since the making of the bond and conditions therein, been in any manner damnified by reason of any matter' or thing in said condition mentioned. This appears to us a traverse of the breach alleged, and we see no sufficient reason why the demurrer should have been sustained to this plea. The second plea avers that the writing obligatory was Mr: paid to ■any one . entitled to collect the same,, but was paid to pretended officers of the- State, then engaged in rebellion.
27 Ark.] OF THE STATE OF ARKANSAS. . 305 TERAI, 1871.] Cooksey v. MeCrery.. The banding of money over to persons not authorized to re-Ct;i ie it, is certainly no valid payment of a debt. The third and fourth pleas aver that the payment made was in confederate notes, or Arkansas, war bonds or trellsury notes, issued in aid of the rebellion against the United States. Tinder . the decisions of this court, these pleas, if true, necessarily defeated. the appellee's right of recovery. Latham, vs. Ark., 574; Jordan vs. Walker, 26 Ark., 1; Penn vs. Clark, 25 660, and Tollison, 26 Ark., 545; Booker, vs. Robins & Page, Ib. other cases. The record further shows that N. A. Williamson and J. D. Bellah, who, it is alleged, made the payment, were not legaily authorized to do so; Thompson v. Mankin, 26 Ark., 586; Yin-sant v . s. Knox, decided at present terth; and hence, if paid by them, it was of their own choice and not binding upon the appellant . , and for that reason the appellee's . demurrer should have been held to reach back and defeat his declaration. For these reasons the judgment must be reversed and the. cause remanded to be proceeded in according to law and not inconsistent with this opinion. SEARLE, J., being disqualified, did not sit in this case. Hon. S. R. HA.RRINGTON, Special Supreme Judge. 27 Ark.-20
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