
    Wiseman and Finley vs. Alexander Hunter, and others.
    
      Payment — Confederate Treasury Notes.
    
    Unele! an order made in June, 1861, to collect a certain bond with “as little delay as possible,’1 the Commissioner in August, 1863,'received payment in Confederate treasury notes. In May, 1868, the Commissioner reported that he had collected the bond, and on motion of the solicitor of the parties entitled to the fu-nd an order for distribution of the same was made. Two of the parties resided in Tennessee, and did not receive their shares, and they now sought to have the payment opened and to compel the obligor to pay their shares. Held, that the obligor was discharged by the payment, and that the transaction could not be opened on their application.
    BEFOB® LESESNE, OH., AT ABBEVILLE, JUNE, 1867.
    The facts of the case are sufficiently stated in the decree of his Honor the Chancellor, which is as followst
    Lesesne, Ch. In a cause of J. Wardlaw Perrin, Administrator of Thomas M. Mitchell vs. Alexander Hunter, Executor of Thomas Finley, there being in the executor’s hands a sum of $2,359.12, to which the next of kin of the testator were entitled, this Court made an order at June Term, 1859, for the said next of kin to come in and establish their claims, and directed the Commissioner to receive and invest the money “ to be refunded after two years.” Under this order the money was invested in Alexander Hunter’s bond to the Commissioner, with these defendants, Samuel Hunter and J. H. Cunningham as sureties, in January, 1860. Claims to the fund were filed by Ann Green and by these plaintiffs, Sarah, Wiseman and O. G. Finley, who reside in the state of Tennessee. The proofs produced by Ann Green seem to have been satisfactory, and on June 17, 1861, tbe Court ordered tbe Commissioner to call in tbe funds with as little delay as possible, and to take evidence as to the claims of these plaintiffs. In pursuance of this order, Hunter paid the Commissioner $2,912.85 in Confederate treasury notes, in full of his bond and interest on the 18th of August, 1862, and the money was deposited in bank according to law.
    On the 4th of May, 1883, the Commissioner reported favorably on tbe claims of the plaintiffs, and on the 7th of May, 1863, the Court ordered the Commissioner to pay one-third of the'fund to the legal representative of Ann Green, (she being dead,) one-third to Sarah Wiseman, and the remaining third to O. G. Einley, The same gentleman who was the solicitor in Court of all the claimants, became the administrator of Ann Green, and received her share on the 21st of May, 1863, from the Commissioner, having also on the 19th of the same month, received from him the sum of $497 on account of these shares, for costs and fee.
    It was also on his motion that the decree of May, 1863, was made.
    The Commissioner proposed to pay him the shares of these plaintiffs, at the same time that he received that of Ann Green, but he had no power of attorney, and did not receive them.
    The plaintiffs ask that the receipt endorsed on the bond be erased and the bond stand unsatisfied and recoverable to-the amount of two-thirds its value. And failing that, that the Commissioner be decreed to be liable to plaintiff' to that extent.
    I will first consider the claim made against the Commissioner.
    Hunter’s bond was collected by him in obedience to an order of the Court, not of his own motion. But he received payment of it in notes of the Confederate States of America, or Confederate currency as it was ealled. And if he be subject to any liability in the premises, it arises from his acceptance of that currency.
    Confederate currency was not a legal tender, and the obligor had no right to require it to be taken in payment of his bond. But the duty imposed on the Commissioner by the order of 1861, was plainly ministerial in its character. And tbe true question is, whether he discharged that duty according to the true intent and meaning of the order. If he did so, bis act was tbe act of the Court, and involves no personal liability. The Court ordered the Commissioner to collect the bond, that is, to receive payment of it; and gold or silver coin was the only legal tender in payment of debts. Did the Court mean that coin should be required in payment of this debt. It was well known that there was not then in the country, and bad not been for a long time, a metallic currency, and the prospect of its restoration was darker than ever. The banks had suspended specie payment long before, and gold and silver were articles of merchandise, and they have continued to be ever since. To have said the payment must be made in coin would have been tantamount to saying that there should be no payment at all. Requirement of coin by the Commissioner would have been shear mockery. Then it could not have been intended to make it the duty of the Commissioner to collect this debt in coin. To suppose that it was, would be to attribute to the Court the absurdity of directing him to perform a manifest impossibility.
    How then did the Court mean that the debt should be collected? If not in coin, it could only be in the currency which was then used in the payment of debts. Wbat was that? The condition of things at that time is historical.
    After the suspension of specie payments by the banks, bank notes constituted the sole currency so used, until Confederate notes were issued in the year 1861. From the time of their issue they were.regarded as of equal value with the bank notes, and the two were used indifferently for the purposes of a currency.
    In a few months the bank notes disappeared from circulation, and Confederate notes then became the only circulating medium of the country, and as such were as generally used as bank notes had been. The banks so treated them., and the Commissioner actually received credit for the money in question as a deposit, from the bank in which he was required by law to keep his funds. When the order was made, in June, 1861, Confederate notes were in circulation to some extent. The currency, therefore, to which the order of the Court must be held to have had reference, was bank notes or Confederate notes; and in my judgment, the Commissioner in accepting the latter simply performed the duty with which he was charged, in the manner intended. It appears by the printed table, which it was agreed at the hearing should be considered as evidence, that the value of Confederate notes, as compared with gold,, was less in August, 1862, when the bond was paid, than in June, 1861, when the order was made. But still its depreciation was comparatively small at the former date; and it was then generally taken and received in payment of debts, and continued to be for a considerable time after. If the Commissioner had sought instruction from the Court, can it be doubted that he would have been instructed to receive Confederate notes? Even in May, 1868, when he reported the settlement he had made with Hunter and when the depreciation of Confederate currency had become great, no objection was made to the Commissioner's act. On the contrary, upon the motion of the solicitor of these plaintiffs, an order was made for the distribution of “the funds in. Court,” and soon afterwards the same gentleman, in his character of administrator of the other distributee, Ann. Green, received her share in Confederate notes. This is certainly significant of the fact that the Commissioner was regarded as having properly discharged his duty. These plaintiffs were in Tennessee, no one held a power of attornej^ from them, the war was at its height, and the difficulty of communication then, and long after, very great, so that they were not informed of what had been done until Confederate money had ceased to be of any value at all. Thereupon this suit was directed to be instituted. It remains to consider the claim made against the obligors of the bond.
    These plaintiffs became parties to the cause of Perrin vs. Hunter, when they presented their claims as distributees. From that time they were bound by all the orders regularly made in that cause; and it was after they had filed their claims that the order of June, 1861, for the collection of the bond was made.
    But if the view already expressed be correct, that order was, under the circumstances, equivalent to an order authorizing the acceptance of Confederate currency in payment of the same. If any party in the cause was unwilling for Confederate currency, or anything but coin to be received, that was the time to say so. And such an objection would certainly have received attention, for the Court would not have authorized the acceptance of anything but the legal tender of the country against the will of any party interested in the fund. None such was made, and it cannot be listened to now, after payment by the debtor in the manner required of him, and in accordance with a proper construction'of the order of the Court. The plaintiffs are estopped by remaining silent when they should have spoken, if they meant to object. The debtor was no volunteer in this matter. The debt was past .due, and was paid in consequence of a stringent order of this Court for its speedy collection. In the settlement made, the Commissioner was the agent of the parties in the cause, including these plaintiffs, his instructions being contained in an order of the Court to which they were privy. So that the case is really as though they had themselves received payment of a debt in Confederate currency in August, 1862, and now repudiated the settlement and sued the debtor’s executor for the same debt.
    Again, in the words of Oh, Wardlaw, “a consent decree is the mere agreement of the parties under the sanction of the Court, and is to be interpreted as an agreement.” (Allen vs. Richardson, 9 Bich. Eq. 56.)
    The consent decree of 1863 is then to be regarded as an agreement on the part of these plaintiffs to carry out or abide by its provisions. But it provided expressly for the distribution of “ the funds in Court,” and it was known that they were in the shape of Confederate currency.
    The view I have taken has rendered it unnecessary to consider the question, whether or not, Confederate currency was money, which was elaborately argued at the hearing. I regard the transaction on which this suit is founded, as being in effect, an agreement to which the plaintiffs were parties, that the Commissioner should receive payment of the bond in Confederate currency. That agreement is not executory but executed. It was executed more than five years ago, and the obligor has actually been dead nearly two years. In the absence of fraud, none of the parties has the shadow of a right to open such a settlement. Even in the Tennessee case, (Wright vs. Overall, MSS.,) which was relied on by the plaintiffs, and in which it is held that Confederate currency was not money, the Court uses this language : “But we do not say that a oase might not arise, involving Confederate money as the basis of an executed, contract where the rights of the parties -.were vested, which the Courts for the repose of society, would not disturb.”
    It is ordered and decreed that the petition of the plaintiffs be dismissed.
    The plaintiffs appealed and now moved to reverse the decree on tbe following grounds:
    1. Because the decree should have held that payment by the obligors in Confederate currency did not discharge the debt; that such currency was not money or legal tender, and could not, without the consent of parties, be paid or taken as money in the discharge of the debt.
    2. Because the debt in question not having been legally paid, the decree should have ordered erasure of payment endorsed on the bond and required the obligors to satisfy the same in good money.
    
      Noble, for the motion.
    
      Thomson & Fair, contra.
   The opinion of the Court was delivered by

Dunkin, Ch. J.

The Commissioner in equity was originally impleaded with the other defendants, but as to him, the appeal was not prosecuted and the petition was dismissed at the last session of this Court. It remains to inquire whether the Chancellor erred in not ordering an erasure of payment on the bond, which had been endorsed by the Commissioner on 13th August, 1862. The decree has not determined that Confederate currency was a legal tender in payment of debts. It is only held that under the circumstances of this case, the petitioners interposing their claim on 20th April, 1867, were not entitled to the active aid of this Court, in cancelling a receipt given on 13th August, 1862.

It is not proposed to repeat what is said by the Chancellor. But it is proved from the records, that prior to the decree of June, 1861, the petitioners, residents of Tennessee, had become parties in the cause, and were represented by their solicitor, who was actively engaged in substantiating their claim and prosecuting their interests. Under his supervision the order was made for the prompt collection of the bond constituting the funds of the estate. There was no qualification, no special direction to the officer, except that he should collect the bond with as little delay as possible.” It may be that at the date of the order (June, 1861,) Confederate notes were not y^t issued, and irredeemable bank paper alone was in circulation ; but soon after and before the payment in August, 1862, Confederate notes constituted equally the only circulating medium. In the meantime testimony was taken under the order of June, 1861, which established the claim of the petitioners, and on 4th May, 1863, the Commissioner presented his report, setting forth that the bond had been paid, and that the petitioners had established their right to participate in the undistributed property of the late Thomas Finley, '■ now in the hands of the Commissioner in Equity ” — and an order was accordingly made for payment of two-thirds of the fund to the petitioners. A fortnight afterwards, the solicitor of the several parties interested in the said fund, received from the Commissioner four hundred and ninety-seven dollars, “ in part of the shares of Anu Green, D. G. Finley, and Sarah Wiseman, being the amount applicable to fees and costs,” and two days subsequently, the same solicitor, as administrator of Ann Green, deceased, received from the Commissioner $799.45, on. account of her share in the same fund.

Debtors have rights as well as creditors. In August, 1862, Alexander Hunter paid in full to the officers of the Court, the amount of his bond in the currency of the country, which bond the officer, by order of the Court, was directed to collect, and the obligor took his receipt for the same. The parties entitled to the fund, residing in an adjoining State, were represented by a solicitor in the cause, who was cognizant of all the facts, and who some months afterwards, received from the officer of the Court a part of the fund thus paid in. Nearly five years after the payment of the bond, and when the obligor was in his grave, this petition is preferred, seeking the aid of the Court, to open the transaction and cancel the receipt on the bond. The question is not whether bank bills or Confederate treasury notes, or anything other than gold and silver is a lawful tender in payment of debts: but whether, when a debtor has paid to an officer of the Court in these funds a debt, which he was required to collect, and taken his receipt in discharge of the same, the Court will at this distance of time, and at the instance of a party in the cause, repudiate the act of its officer and set up the claim against the debtor. It concerns the interest of the public that there should be an end of litigation. Where a transaction has been consummated and rights vested, the repose of society demands that it should not be opened.

The decree of the Chancellor is affirmed and .the appeal dismissed.

Wardlaw and Inglis, A. JJ., concurred.

Motion dismissed.  