Hansbrough v. Utz

Christian, J., delivered the opinion of the court. This case presents a single question, and that is, whether the circuit court erred in refusing to scale the bond in the bill and proceedings mentioned for the sum of §3,976.75 dated 1863—payable on demand. The bond is in these words: “§3,976.75. On demand I promise to pay to William M. Utz the full sum of thirty-nine hundred and seventy-six dollars and seventy-five cents, for value received, for which payment I bind myself, my heirs, &c. Given under my hand and seal this 1st day of January, 1863. (Signed) “James W. Utz, [Seal.]” Ho evidence was offered on either side to show what was the consideration of the bond, or whether it was payable in Confederate currency, or in sound currency. [962] It is insisted, however, by the learned counsel for the appellant, that the mere fact that the bond bears date 1st of January, 1863, payable on demand, is of itself sufficient to create a presumption that the bond was payable in Confederate currency, because that was the only currency then in circulation. We think the rule is correctly stated by that distinguished jurist, Judge Joynes, in the case of Omohundro, Ex’or v. Crump, 18 Gratt. 705, in which, after saying “ the word {dollars’ has a definite signification fixed by law,” proceeds to say “the argument is” (the same made in this case) “ that the note having been made after the establishment of the Confederate States, must be considered as made with reference to the actual currency of those States, and that as Confederate notes were the actual currency of those States at the time the note became payable, it was payable in that currency. It must be remembered, however, that Confederate notes were never made a legal tender. They were never the lawful money of the country, but only a substitute for money like bank notes. Gold and silver were the lawful money of the Confederate States at the time this note was made and also at the time it became payable.” The legal presumption is that such a note is payable in specie. “ There was no law (he continues) of the Confederate States, or of the State of Virginia, controlling or affecting this legal presumption, until the act of assembly passed October 14th, 1863. “ That act provided that all contracts made and entered into after the 20th October, 1863, should be deemed payable in such currency as should at the time of their becoming payable be receivable in payments to the State of Virginia, unless that intendment should be expressly excluded. This act indicates the sense of the legislature that there was no presumption independently of its provision. The act of 3d March, 1866, provided that as to all contracts [963] made after the 1st January, 1862, an inquiry might be made to ascertain what sort of currency was really contemplated by the parties. That act was wholly unnecessary if, as now contended, every contract made in the Confederate States must be deemed payable in the actual currency at the time of its becoming payable.” Judge Joynes further says that in a case occurring before the 20th of - October, 1863, the legal presumption in the absence of proof is in favor of payment in a sound currency. . I have quoted thus largely from the opinion of Judge Joynes in Omohundro v. Crump, 18 Gratt. 703, because he has so clearly and concisely stated the rales of law applicable to this case, and there is nothing contrary to these views in the numerous decisions of this court with respect to contracts made during the term. The case of Walker v. Pierce, 21 Gratt. 722, so much relied on by the counsel for the appellant, is not at all in conflict with this view. In that case the obligation was dated after the 20th October, 1863, and the presumption declared by the statute expressly applied. I think the rule upon the authority of Omohundro v. Grump, which has never been questioned, may be stated thus : Wherever an obligation is given for the payment of so many dollars payable before the 20th October, 1863, the ’ presumption is (in the absence of all proof as to the kind of currency in which it is to be paid) in favor of payment in a sound currency. Inquiry, of course, may be made as to the intentions of the parties, and very slight proof may change this presumption, but in the absence of all proof, the presumption, when the obligation is payable before the 20th of October, 1863, is in favor of a sound currency. Applying this rule to the case before us, the circuit court did not err in refusing to scale the bonds in question. This is the more apparent in this case because the commissioner, in the settlement of the executorial act, lists [964] this bond as “ a bond of this date, in lieu of Hiram Hansbrough’s bond to ¥m. M. Utz, dated before the war.” It is manifest the commissioner regarded this as an ante bellum debt. Ho evidence was offered to disprove it. It was easy to have contradicted this statement if untrue; and in the absence of proof we must accept that statement as true. For the reasons stated, I am of opinin that there is no error in the decree of the circuit court and that the same-should be affirmed. Decree affirmed.