48 Ala. 512 | Ala. | 1872
On the 1st day of May, in the year 1870, Allen, the appellee, commenced suit by summons and complaint against Bozeman, the appellant, in the circuit court of Hale county. The complaint contains two counts. One is upon a stated account for $3,017 18, rendered on September 21st, 1863. The other is a count upon a promissory note executed by the defendant on the first day of September, 1863, payable one day after date to the order of W. W. Allen & Co., for the sum of $5,817 18, which note was indorsed by the payees to the plaintiff. In answer to the complaint, the defendant pleaded three pleas in short by consent: 1. The general issue; 2. Illegal consideration; 3. Statute of limitations of six years. Issues were taken upon all these pleas, and the parties went to trial on the issues thus made. The cause was submitted to the jury upon the evidence of the note and an agreed statement of facts, which was in the following words, that is to say: “Of the amount of the note sued on, which is for $5,817 18, the sum of $2,800 is Confederate money or treasury-notes advanced or loaned by W. W. Allen & Co., the payees of said note. A part of said Confederate money was advanced in 1863, and a part'in 1862. The balance of said note, to-wit, three thousand and seventeen dollars and eighteen cents was for a good consideration, being for goods, &c., sold and money advanced to defendant, by Allen & Co., for several years before the war, to-wit, between the years 1851 to 1858. The said sum of twenty-eight hundred dollars was paid to third persons on orders or drafts drawn in favor of third persons by said Bozeman on Allen & Co., and were charged to him as money paid to his use and account.”
This was all the evidence; and on this evidence the court charged the jury: (
1. “ That the plaintiff is entitled to recover the amount
This charge was excepted to by the defendant; and thereupon the defendant moved the court to give the following charges:
1. “If the jury believe the evidence, they must find for the defendant.”
2. “If the jury believe that a part of the consideration of the note sued on was Confederate States treasury-notes, or Confederate money, loaned by the payees to defendant, then the said note is illegal and void, and there can be no recovery in this action under the first count.”
These charges were also refused by the court, and the defendant excepted.
In the case of Hickman v. Jones, (9 Wall. 197-200,) it is said by the highest court of the Union, that “ the rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the State to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government defacto, in such a sense as to give any legal efficacy to its acts. It was not recognized by the national, nor by any foreign government.” It was, then, but an organized insurrection to separate a portion of the States of the Union from the territory of the Union. In whatever light such an effort may be regarded as a revolutionary act, it was in point of law illegal and criminal; and every act in aid of it is necessarily impressed with the same illegal character. The history of the large quantities of what is called Confederate treasury-notes, or Confederate money, issued and put in circulation by this organization, called “ The Confederate States Government of America,” is too well known to doubt that these treasury-notes were so issued and put in circulation to aid the success of the rebellion. They were not issued for any of the peaceful purposes of life or of peaceful commerce.
The judgment of the court below is, consequently, affirmed.
Note by Reporter. — At a subsequent day of the term, the appellant applied for a rehearing. This application did not come into the Reporter’s hands. The following response was made by
The court is of opinion that the rehearing should be allowed. There was a plea of illegal consideration, and some evidence to sustain it. This, under the law as settled in this State, puts the onus of proof on the plaintiff to show that he is an indorsee and holder for valuable consideration. — Battle v. Weems, 44 Ala. R. 105, and cases there cited. The original opinion in this case is, therefore, modified to this extent.
The judgment of the court below is, therefore, reversed, and the cause is remanded for a new trial.