Baird v. . Hall

Reaue, J. It appears that the widow, Mrs. M. L. Baird, authorized the Clerk and Master, Blackmer, to receive Co»~ iederate money in payment for the land sold by him. Any alleged claim of hers therefore, against the defendant, may be put out of the question. * It also appears that there are others of the plaintiffs, who- also authorized the Clerk and Master to receive the Confederate money. Their claim also *233 may be put out of the question; for having once assented, they cannot be heard now to object. But it is to be inferred from the finding of the jury, that there are others of the plaintiffs who did not assent, although it does not appear that they made any objection. Whether, as to them, the payment was good, depends upon the question, whether prudent business men, in that locality, would have received such money in satisfaction of such a debt. Eor, without instructions to the contrary, a collecting officer, or agent, is authorized to receive whatever kind of money is generally received by prudent business men,, in payment of such debts as he has to collect; Atkins v. Money Phil. R. 31. And of course, whatever the officer Blackmer was authorized to receive, the defendant was authorized to pay. 'If the Clerk and Master was not authorized to receive the money because of its depreciation, then, as to such as did not assent, it was a part payment only, to thevakueoi the Confederate money paid, and the Clerk and MastePwas liable for that value, and the defendant ’was still liable for the balance. This was the rule established in Emerson v. Mallett, Phil. Eq. R. 234, as the most equitable and convenient under the circumstances. As the case is now presented, the defendant is entitled to have it enquired, whether on the 26th February, 1863, when he paid the money to the Clerk and Master, Confederate money’ was generally received by prudent business men, in payment of such debts as the Clerk and Master had to collect. If that is answered in the affirmative, then, he has paid the debt, and is not liable at all to any body. If answered in the negative, then, he is entitled to the enquiry, what was the value of the Confederate money which he paid; which enquiry may be answered by the Legislative scale; and then, treating it as a part payment for so much, he will be liable for the balance. But still, he will be entitled to have it enquired, what is the widow’s share of the proceeds of the sale, in lieu of her dower; and he will be entitled to be allowed that. And so he will be *234 entitled to have iteuquired, who among the plaintiff’s assented to the payment; and then, as to them, the payment will be in dull, so that his liability, in any event, can only be to those who did not assent; and, as to them, only for the balance after allowing him the value of the Confederate money. It must also be considered, that whatever amount the defendant lias to pay to remove the equitable incumbrance on the land which the plaintiff Ma-rgaret L. Baird sold him, in that amount she becomes indebted to him ; and he has an equitable lieu upon her interest in the funds, in the hands of the Clerk and Master, which has not been paid over to her. And he would be entitled to an order to have that interest applied in liquidation of any balance which may be found against him, if any. It will be seen, therefore, that, as we said in Emerson and Mallett, supra, the Clerk and Master ought to he a party; for in the event that it appear that he was authorized to receive Confederate money, then, the defendant will be discharged altogether and he alone will be- liable to the plaintiffs. And in the event he was not authorized to receive it, still, .it was a payment to the amount of its value, and he is liable to the plaintiffs for that. And so, be is liable to the defendant for the widow’s interest now in his hands, in the event the defendant has anything to pay, to remove the encumberance upon the land which she sold him. From what we have said, it will be seen, that it is impossible for us to give any judgment which will fully'adjust the rights of the parties, because sufficient facts are not found to ■enable us to do so. We have, however, endeavored to declare their rights in different aspects, to meet any state of facts which seems to us to be probable. J udgmeut will be reversed, and a venire de ■.novo, to the end that the Clerk and Master may be made party defendant, and there may be such issues,as are suggested, and such judgment as the law allows. There is error. Per Curiam Yexiira de novo.