[No. 4. regulate the irrigation of land, which declared in its first section that all persons who claimed or held a possessory right or title to any land within the territory on the bank, margin, or neighborhood of any stream of water should be "entitled to the use of the water of said stream for the purpose of irrigation and making said claim available to the full extent of the soil for agricultural purposes." Another section provided that in case the volume of water in the stream was not sufficient to supply the continual wants of the entire country through which it passed, an apportionment of the water should be made between different localities by commissioners appointed for that purpose. This last section has no application to the present case, for it is not pretended that there is not water enough in the district, where Avalanche Creek flows, to supply the wants of the country; and the section itself was repealed in 1870. Session Laws of 1865, p. 367. In January of that year another act was passed by the Legislature of Montana upon the same subject, which recognizes the right by prior appropriation of water for the purposes of irrigation, and declares that all controversies respecting the rights to water under its provisions shall be determined by the date of the appropriation as respectively made by the parties, and that the water of the streams shall be made available to their full extent for irrigating purposes, without regard to deterioration in quality or diminution in quantity, "so that the same do not materially affect or impair the rights of the prior appropriator; but in no case shall the same be diverted or turned from the ditches or canals of such appropriator so as to render the same unavailable." Session Laws of 1870, p. 57. Several decisions of the supreme court of Montana have been cited to us recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States, and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorpe v. Tweed, the subject was very ably discussed by two of the justices of that court, who differed in opinion upon the question in that case, where both parties had acquired the title of the government. The disagreement would seem to have arisen in the application of the doctrine to a case where title had passed from the government, and not in its application to a case where neither party had acquired that title. In the course of his opinion, Mr. Justice Knowles stated that ever since the settlement of the territory it had been the custom of those who had settled themselves upon the public domain and devoted any part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same; that this right had been generally recognized by the people of, and had been universally conceded as a necessity of agricultural pursuits. "So universal," added the justice, "has been this usage that I do not suppose there has been a parcel of land, to the extent of one acre, cultivated within the bounds of this territory, that has not been irrigated by water diverted from some running stream." 1 Montana Rep. 652, 665. We are satisfied that the right claimed by the plaintiffs is one which, under the customs, laws, and decisions of the courts of the territory, and the act of Congress, should be recognized and protected. We, therefore, affirm the decree of the supreme court of the territory. Vol. II.] ROGERS v. TULLOS. [No. 4 SUPREME COURT OF MISSISSIPPI. [FEBRUARY, 1875.] "DOLLARS IN ADMINIS PAROL EVIDENCE TO EXPLAIN JUDGMENT. ROGERS v. TULLOS. It is competent to show by parol evidence that the word "dollars," used in a judgment rendered by a court within the Confederate States, during the time of their de facto existence and authority, means dollars issued by the government in power at the time the judgment was rendered, to wit: dollars of the government of the Confederate States. Mr. A. H. Handy, for appellants. Messrs. J. A. Brown & A. G. McLaurin, contra. TARBELL, J. The question for determination in this case is, as to the right to show by parol that the term "dollars, used in the annual and final accounts of administrators and guardians, during the late Confederacy, means other than the constitutional currency of the United States. Wm. H. Brown deceased in 1859. In 1861, J. B. Rogers and T. B. Rogers were appointed administrators de bonis non of the estate of deceased. In November, 1861, these administrators were directed by the probate court to sell certain of the personal property belonging to the estate on a credit of twelve months. They reported the sale as having taken place December 13, 1861. Reference is made in their report to an exhibit or account of sales filed therewith by which it appears that the aggregate amounted to $1,514.81. And the report says: "We, as administrators, further report that all of said purchasers have given note with good and approved security for the payment of the sums bid by them respectively for said personal estate.' Another sale was made January 6, 1862, of refuse articles, aggregating $15.15. The first annual account of these administrators was rendered in April, 1863, wherein they charge themselves with the receipt on account of the estate of divers sums, from different persons, up to January 6, 1863, amounting to $785.62, and that they had paid debts to the amount of $412.46, leaving a balance in their hands belonging to the estate of $373.16. A second annual account was rendered in March, 1864, stating receipt of $983.58, and at the same time the administrators reported the hiring of slaves, for 1864, and notes taken with good and sufficient security payable on or before January 1, 1865, which had amounted to $526. At the same time the sum of $413.87 was reported as paid out. The next account was made in 1867, when the administrators charge themselves with the receipt of $115. In 1868, the receipt of $50 is acknowledged, and $2.88 charged as paid out. At the November term, 1869, of the probate court, the petition of the administrators sets forth their dealings in United States and Confederate currency, respectively: This statement was ratified and confirmed as the final account of the administrators, and they were permitted to surrender their trust, but this was without notice to the heirs and distributees of the estate. In 1870, a term of the chancery court, under the present system, was held in Smith County, when the heirs and distributees presented to the chancellor, a petition in writing praying an order that the administrators render a final account. It was ordered accordingly, and the administrators state their transactions in detail. Time was given to file objections and exceptions to the account. These were filed, and claim, in substance: 1. That the administrators having rendered their accounts in dollars and cents, their transactions must be held to have been in United States currency, and that they cannot now be permitted to show them to have been in Confederate money. 2. That items were allowed without proper vouchers. 3. That a certain number of bales of cotton, belonging to the estate, were sold by the administrators and not accounted for; and 4. That the administrators, in fact, mingled the funds of the estate with their individual funds. Such further proceedings were had in the chancery court that a final decree was rendered, declaring the administrators indebted to the estate in the sum of $1,131.59, and the same was ordered to be distributed in the sums and to the parties specified in the final decree. From this decree the administrators appeal to this court. Various grounds of error are assigned, not necessary to be stated or discussed in detail. Referring to actual dates of transactions, it is evident that the sales of personal property in December, 1861, and January, 1862, and the notes taken were upon a gold basis. It is also manifest that the transactions of hiring out slaves in 1863-4 were on the basis of Confederate currency. The debts discharged in those years might also have been paid in the currency of the times; as to which there is no evidence. In 1867-8 the lawful currency of the United States was restored and Confederate currency excluded. Do these different periods, through which the estate was conducted, afford any aid in the solution of this case? In McFarlane v. Randle, 41 Miss. 411, the transactions commenced in 1854, and were continued to 1865. There were eleven annual accounts, all reciting the sums in the hands of the guardian as in "dollars and cents," without designating the character of the currency. Lawful money of the United States was exchanged for Confederate treasury notes without the authority of the court. After the war, the guardian sought to account to his ward in the funds of the then defunct Confederacy. Held, he was concluded by his settlements. The transactions in Coffin v. Bramlett, 42 Miss. 194, commenced in 1859. The court say: "Upon the settlement of the sixth annual account, in the month of March, 1864, the guardian held his ward's money, to the ROGERS v. TULLOS. Vol. II.] [No. 4. amount of $758.46, in par funds. He has so charged himself in that account, and he is not allowed to gainsay it." This question is then propounded by the court in that case: "Had the guardian a right to invest his ward's money in Confederate treasury notes or in Confederate bonds without the authority of the probate court?" To this question a negative answer is given. In discussing this question, however, the court say: "If a guardian, acting in good faith and with a due regard to the interest of his ward, should receive, in the usual course. of business, paper money, the circulating medium at the time, which should afterwards depreciate and become worthless in his hands, he would not be chargeable with the loss. "It is a general rule, applicable to all persons standing in the relation of trustee, whether they be receivers, guardians, executors, or administrators, or trustees of any description, that so long as they keep themselves strictly within the line of duty, and exercise reasonable care and diligence, they cannot be made responsible for any loss or depreciation in the fund intrusted to them; but if they do not strictly pursue that line, and a loss ensue, they are liable to make that loss good, although such loss may have been wholly unexpected. To what state of case would these rules, thus clearly stated, apply? Can they apply to any case, unless, under circumstances, an administrator shall be allowed to prove that the amount reported by him in dollars and cents is, in fact, due in the depreciated currency referred to? If this question shall be answered in the affirmative, then, under what circumstances would such proof be admitted within the rules quoted? Chief Justice Chase, in Thorington v. Smith, 8 Wall. 1, uses the following language: "It is quite clear that a contract to pay dollars, made between citizens of any state of the Union, while maintaining its constitutional relations with the national government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. But it is equally clear if in any other country coins or notes, denominated dollars, should be authorized, of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended, and, if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence does not modify or alter the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence." And if a contract, why may not a foreign judgment, sued upon here, be explained in the same way? If the judgment of France, where accounts are kept in francs and decimes, or of England, whose currency is reckoned in pounds, shillings, and pence, were the basis of suits here, of necessity, evidence would be admissible to determine their equivalent values in our currency. And if the judgments and contracts of foreign countries may be thus explained, why not the judgments and obligations, as well as the contracts of the late Confederacy? The insurgent States while in rebellion were quite as "foreign" to the Union as any that be named. can The facts in Williams v. Campbell, 46 Miss. 57, were materially Vol. II.] ROGERS v. TULLOS. [No. 4. different from any of the foregoing. Williams was appointed administrator of the estate of Brooks, deceased, in November, 1862, and at the same term of the probate court, the administrator was ordered to sell the perishable property of the decedent on a credit. The sale took place, accordingly, in 1863, for Confederate money, which was bonded in 1864. No report was made or account filed until December, 1865. Upon the theory that the administrator had acted in good faith, he was allowed to account for the Confederate money in its equivalent value at the date of its receipt. But suppose the administrator to have made his report of the sale, which had been confirmed as his annual account and ordered of record. Indeed the law required this. If he had rendered an annual account, he would have been in the strict line of his duty. In such case, would he have been estopped from showing his transactions to have been in Confederate money? Would it be holding the scales of justice evenly balanced to declare in one case, as really the result of a neglect of official and statutory duty, that the party might account for his transactions in Confederate money; while, as to the other, who filed his annual account, as in duty and law he was required to do, that he should account in lawful or par funds, though, in fact, he had received only the depreciated currency of the war, yet, in good faith, in the usual course of business, and in obedience to the orders of the probate court? The only difference in the two cases would be this: that in one, the administrator omitted to make and file an annual account; and in the other, an annual account was made and approved. Suppose a citizen to have purchased, in 1863-4, a pair of boots, for which he gave his note for $150, and a horse for $2,500, for which he also gave his note, and that during the Confederacy these notes were reduced to judgment, reciting on its face that it was for $2,650. Suppose, further, that this judgment, not having been satisfied during the war, it is now sought to enforce it for its face in the currency of the present day. Would not gross injustice be done, unless the true value of that judgment could be shown? To admit parol evidence of the value of the boots and the horse, or that the "dollars" and "cents" recited in the judgment meant Confederate money, would not invalidate the judgment; it would not be an attempt to impeach its verity by parol; it would not be an attempt to attack its binding force, either as to its lien, or its validity as a judgment; but it would be merely the application to judgments, of the rule applied to contracts, during the existence of the Confederacy, and upon the principles enunciated in Thorington v. Smith, supra, and other cases on the subject. It is not perceived why the rule should apply to contracts and not to judgments for the same period. The contracts and judgments referred to were within a strange, alien, and essentially a foreign jurisdiction, in many respects. An illegal, usurped, revolutionary jurisdiction, it might have been, and was; nevertheless, for many purposes, and with some exceptions, its laws are enforced by the rightful government, as are contracts between its citizens, and the judgments and decrees of its courts. For the time, this illegal, alien, usurping government, or jurisdiction, was supreme. It created, promulgated, and enforced a currency of its own. In the enforcement of the contracts of the citizens of the Confederacy, |