The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1867-02-07

vented demonstrating them to Aleu- bv Green's
retention Of them, and that thus Sizcr lost
$l,600 of the indebtedness Of Allen to him,
then the Green are liable for tho whole Of tho
$1,000 IN gold or silver.
Theevldence in the record IN relation to this
question Is, In substance, that Sizer was desi.
rous TO pay the note he owed the defendants,
and conferred with ,. Green ON the subject,
who agreed to recciv payment III these fliIlds,
4 II he would pay the whole note. There Is d
discrepancy in the statements of the parties as
70 the date of this transaction, sizer testifying
that It was, as he thinks, in November, 1861,
and Green testifying positively that It took
4 place in April 1862. The latter statement ap-
i pears, by other circumstances, to be correct
| lt appears that one Allen was indebted to Siaer
In note for gold or silver, and that, shortly
after this interview with Green, Sizer called on
Allen and got from him $1,000, in Mississippi
| Treasury Notes, which he agreed to credit on
the note OF Allen, provided be could use them
towards the payment of his note to Green;
| and If hecould not SO use them, Sizer was to
return the notes to Allen. Sizer then took
1 these notes to the banking house of defendants,
and delivered them to j. Green as special de-
post, and they were so entered by Green on
i the banking books. A few days thereafter,
/ Sizer came to the office Of the defendants, and
/ said he could not raise the balance Of his note
in Mississ ppi Treasury Notes, but proposed to
pay the same with other funds-C Cotton and
/ Confederate money-then TO his credit with
i defendants; which proposition Green refused.
sizer states, that he demanded that the 81, 600
i should be credited on his note; which Green
i refused; and that he thereupon demanded oil
his deposits, which Green refused, saying that
/ he intended to hold them as security for the
| note of Sizef. Green denies that he demanded
1 the payment Of the other deposits. but admits
that he demanded the Mississippi Treasury
i Notes obtained from Allen, and that he refused
| to deliver them, and retained them as seell-.
i rity for Steers note. But they were not cred
tied on that note, and were never paid back to
/ Sizer. ID 500 81 s st
/ action, the plaintiff could not recover either
the amount of these funds, or for the loss slls-
/ tanned by him, by reason OF the detention of
| the funds by the defendants, or of their failure
to give credit for the amount on the plaintiffs
! note; and, hence, that the instruction was
AS to the piaintifr's right to recover, in the
/ for1nlof action, it is above shown that he was
| entitled to recover, ut all events the market
/ yalueof the funds. But party may be en-
i titled to recover more under. certain eireum-
stances; and this appears 70 present a case of
| that sort.
1t appears, by the evidence, that the defend.
ants had agreed to receive the kind of funds
afterwards delivered to them by the plaintiff,
/ in payment of his note, and at par; and, in
/ consequence of that agreement, that the plain
| tiff delivered them the 81 $50; that after re-
ceiving the funds, they refused either to de-
4 liver them back or TO give him credit on his
j note for the amount, but kept the funds in
4 their hands until they became of no Value
Now it is clear that the plaintiff had the right,
under these circumstances, to treat the funds
i as received under the agreement, or converted
| to the use of the defendants. Whether they
were so actually used to the defendants benefit
| or not is immaterial as to the rights Of the
| plaintiff. They had agreed tofeceiye them at
| par; he had paid under that agreement If
| the agreement was not complied with by him
! in paying part of the debt due in the funds
| agreed ON, it was his right to have his funds
returned to him when the defendants objected
| that the whole sum Yves no. paid, as agreed
on: and, by refusing to return him the funds
4 paid, they became responsible rs for so much
| money had and received for the plaintiff use,
| and they took the hazard of the loss oceasioned
| by the subsequent depreciation of the funds
| Otherwise they would be permitted to take the
| benefit of their own wrong, and to cast on the
| plaintiff a loss which had resulted entirely by
| their own wrongful act. Under such circunl-
stances he Is entitled to treat the funds as con-
verified to the use of the defendants. The case
| of Pickard VS.. Banks, Is East, 20, is an au-
thority to show that, in such a case, the action
! for money had and received will lie. &
| But, under the pleadings in this case, there
| can be no question of this right, whether the
| plaintiff was entitled to recover the amount as
money mad 28fd received or not, in an action,
solely of hat complexion.
The>sm of particulars filed with the deelara-
tloK shows ease of mutual credits between
k>tile parties. and the action was brought to re-
cover the balance due the plaintiff. The de-
PENDANTS pleaded payment, and set off the note
of the plaintiff in bar of his claims, and the
plaintiff replied denying the payment This
plea of set-off is in law, cross action, assert
ing the defendants right to recover the amount
of the plaintiffs note set up in the plea. Upon
general traverse of that demand, which was
the legal effect of the plaintiffs replication, the
question is, what sum were the defendants en-
titled to recover in their cross action. In de-
termining that question, it is clear that the
plaintiff was entitled to credit for all that he
had paid on that claim; and, If it appeared
iell
the defendants had received in consequence of
an agreement between them, and which We're
retained and refused to be returned to the
plaintiff, on his demand, until they became
worthless. especially if the plaintiff had to pay
the full value at par of the funds in obtaining
them, there cannot be a question that the plain
tiff would be entitled to credit for the sum re-
ceived by the defendants. For, after the funds
were paid, they were either the funds of the
defendants, or of the plaintiff If of the former,
they should have been credited as agreed; if
of the latter, the refusal to return them ON
demand renders the defendants liable for all
the actual loss which the plaintiff has is'is-
tanned as the result of the wrongful deten-
ton. $3.50 sss
Upon either of the above views the instruc-
ton was right. s-~s%
We come now to consider the objections
urged to the action of the court in granting the
fourth instruction in. behalf of the. plaintiff,
and in refusing the first, second and fourth in
structions in behalf of the plaintiff, and in
refusing the first. second and fourth instruc-
tions asked IN behalf of the defendants.
These instructions present for our deter
mination the very important question,
whether contracts of an executory nature,
founded on the consideration of what is
commonly called Confederate money, or OF
State currency, issued during the recent
war or obligations incurred on account of
such currency, are valid in law, aud can,
under any circumstances, be the foundation
of any legal right. The negative of the
propositionis contended for by the counsel
for the plaintiffs in error, who insists THAT
such currency, being issued in aid of the re-
bellion, was Illegal and void, to all sintents
and purposes, as against public policy, and i
that it cannot form valid consideration for
any contract or obligation, under any cir
eumstances, or in favor of any persons; and
hence. that there was no right of action in
the plaintiff in this case.
The argument in support of this view, has
been directed entirely to the power OF the !
Confederate and State governments to issue /
the notes In question, in opposition to, and
Independently of, the rights and powers OF
the United States under the Constitution.
We donot consider it NECESSARY, II the
present case, to decide whether the issue of
these notes by the Confederate and State
governments rendered them valid IN law,
in point of the right and power of these
Governments, in the condition In which they
were then placed, to issue Them. That is q
question of very grave moment, which we
do not think necessarily involved IN this
case The true question here is, whether,
after they were issued and had passed into
circulati0n they could become the founJa-
$40