54 Tenn. 437 | Tenn. | 1872
delivered the opinion of the Court.
These cases were tried in the Circuit Court of Marshall county on writs of error coram nobis. Judgments were rendered in the first two cases in favor of plaintiffs, from which defendants prosecuted writs of error to this Court, and in the last case judgment was given for defendants, from which Morgan & Co. appealed.
We proceed to dispose of the first two cases, which present the same questions precisely.
In February, 1861, H. and B. Douglas obtained judgments against the defendant Neil, on which executions were several times issued. On petition of defendants the executions were superseded, and collection stayed, under a law of the Legislature protecting parties from execution while in the Confederate army.
These -filed their application for writs of error coram nobis, alleging that James R. Neil had paid off the judgments in full in the year 1862, and that this fact could not have been proven or shown on the motion to dismiss the supersedeas, and ask that they be allowed to show the fact of payment on trial of the writ of error coram nobis.
An issue was regularly made on the fact alleged, that Neil had on the 22d of November, 1862, paid off the judgments in full, the defendants alleging by way of pleas, first, that the judgments had not been paid in manner and form as plaintiffs had alleged in their assignment of errors; and second, that the said payment was made in an illegal currency, to-wit, Confederate notes, and the same not paid to them, or their attorney, or any person authorized to receive payment in that currency for them.
On the trial of the case, McKnight, who was Clerk of the Circuit Court of Marshall county, was introduced to prove that payment was made in Confederate money, the petitioners having first read the following entry on the execution docket, made by him: “ Received, November 22, 1862, $789.87, .in full of this judgment and costs. Thos. McKnight, Clerk.”
McKnight was objected to as incompetent for reasons given in the record, but was permitted to testify.
The question presented is, was this payment, made under these circumstances, at the time made, a satisfaction of the judgment?
By provision of the Code, s. 4050, sub-sec. 5, it is the duty of the clerks of the several courts of this State “to receive the amount of any judgment or decree rendered in the Court of which they are clerks, either before or after execution issued thereon.” See also s. 3016, s. 3025. The Clerk then is clearly authorized by law to receive the amount of any judgment rendered in his Court. We held in the case of Turner v. Collier, at last term at this place, “that a Sheriff or other public officer, under the circumstances of the country in December, 1861, in a time of civil war, in the absence of instructions to the contrary, would be justified in receiving on executions in his hands what was passing current in the country in the payment of debts.” In this decision we followed two decisions of the Supreme Court of North Carolina, decided in 1866, and cited the rule from those cases as follows: “A Sheriff, in the absence of instructions to the contrary, would be justified in receiving what was passing currently in payment of debts of this character which he had to collect, yet, there must, says the Court, be some limit to this discretion of the Sheriff: for if he received funds
We need not here go into a discussion of the particular character of that government, whether a simple government de facto, as defined by publicists, or a government of paramount force, as denominated by Chief Justice Chase, in case of Thorington v. Smith. It was a government as a matter of fact, not a myth, and in the language of Chief Justice Chase, “ its existence was maintained by active military power within the territory held by it,” against the authority of the government of the United States, and while it existed, he says, it must necessarily be obeyed in civil matters by private citizens.” We know as a matter of his-
The notes of the various banks of our State in other days were never a legal tender, but they were the currency of the country accepted as such by the people, and of such universal use as currency, that the officer who received them, having no instructions to the contrary, was always held to have done so properly, and the debt to have been discharged and satisfied.
The proof shows in these cases that Confederate notes were, in the language of the witness, almost the only circulating medium in Marshall county at the time of this payment, and must necessarily have been received by all in payment of debts of this character, as well as in all the business transactions of the country. Shall the public officers be held responsible
It is equally unjust to maintain that parties who had claims in our courts in the form of judgments, shall be held to have had an insurance or guaranty against all the losses incident to that great civil convulsion through which the country passed, in the form of a liability on the part of officers and their sureties to them; or that parties paying debts in the then universal currency of the country to officers, shall alone be held not to have discharged their liability, when it was done in good faith, and no fraudulent advantage taken, while all other payments of debts made under like circüinstáncés of good faith, sháll be
In the case of Morgan & Co. we have an additional question, not presented in the other cases we have discussed. It is claimed in this case that McKnight was not Clerk of the Circuit Court either de jure or de facto. ■
The facts are that McKnight had been elected Clerk of the Circuit Court of Marshall county in March, 1858,
We need not discuss the other ruling of the Court, on the admission of testimony, as the questions settled are conclusive of the cases.
The two first cases of Douglas & Co. v. Neil et als. will be reversed, and the ease of Morgan & Co. v. Neil et als., will be affirmed.
Judgment in accordance with this opinion will he rendered here.
Note. — The case is different where the money was received by a private agent. See King v. Fleece, ante.