Cowan v. McCutchen

| Miss. | May 15, 1870

Tarbell, J.:

This suit was brought upon a promissory note, of which the following is a copy, to-wit:

($1016 58.)
“ Yicksburg, 1st July, 1862.
One day after date, I promise to pay to the order of ffm. McOutchen & Co., one thousand and sixteen dollars and fifty-eight cents for value received, with interest from date at 10 per cent, per annum.
Sarah Cowan.”

Defendant did not appear, and judgment by default,v for the full amount of the note and interest, was taken for plaintiff, June 7,1868.

Two grounds of error are assigned, viz : First, That there was no legal service of process; Second, That there should have been a writ of inquiry to ascertain the value of Confederate money, or judicial knowledge of the law approved, February 19,1867.

1. The first assignment of error is not well taken. It is conceded that the signature of M. H. Dixon, sheriff, to the 'deputation of J. L. Erwin, S. D. S., is in his own proper handwriting. The words underneath the signature of the sheriff, to-wit: “ By J. L. Erwin, S. D, S.,” across which a pen has been drawn, were palpably written there by Erwin himself, by mistake, and at once erased, probably at the time of making his return of service, adding his name underneath the deputation accidentally, instead of to his return of service. With the proper signature of the sheriff to the deputation, there could have been no motive for the plaintiff to *211add those words, and no solution can be devised involving an attempted fraud by him.

2.In discussing the second assignment of error, counsel assail the law referred to on constitutional grounds. We are disposed to consider this question virtually settled by the cases of Thorington v. Smith, 8 Wallace 1; 24 Ark., 212; 28 Miss., 371. Thomas v. Taylor, Opinion Book, per Peyton, J.

1. From motives of public policy, laws passed by the respective, so-called, confederate states, notin aid of the rebellion, are recognized as valid and binding.

2. Contracts between citizens of the insurgent states, not in aid of the rebellion, are enforced by the same rules, and on the same principles as all other contracts.

3. The constitutionality of this law, so far as it is attacked, as impairing the obligation of contracts, is sustained by similar reasoning (and for other reasons), to the case of Briscoe, et al. v. Anketell, 28 Miss., 361" court="Miss." date_filed="1854-10-15" href="" opinion_id="8256803">28 Miss., 361; vide, also, 1 How. U.S., 315; 2 ib., 612; 4 Wheaton; 3 Peters, 290.

4. Similar laws have been enacted by the legislatures of Virginia, Alabama, and Arkansas, and they have been upheld by the local tribunals of those states of last resort.

There are two significant facts in regard to this law, worthy of note: First, it enacts into a statutory provision only, and precisely, the rules laid down by the supreme court of the U. S., in cases of this character; Second, holding private rights acquired' during the rebellion, to depend upon the principles governing all other like cases, this law steps in to give effect to those rights, and contracts according to the intention of the parties at the time.

Sustaining this law, therefore, as constitutional and just, as well upon precedent as upon correct principles, it only remains for us to add, that it appearing by the terms of the contract sued on in this case, that it falls within the provisions of the statute approved February 19, 1867, a writ of inquiry should have been executed to ascertain and assess the damages by proof of the value of Confederate currency at the time and place of this contract. The second assignment *212of error is, therefore, well taken. Judgment reversed and cause remanded.

Simrall, J., having been consulted as attorney, in this case, takes no part in this decision.