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that the fact relied upon for the divorce was proved by testimony other than that of the complainant himself. If he had refused the divorce on this account I should be unwilling to disturb his decree.

I am of the opinion that we have no power to grant the relief prayed for, and that the decree of the court below should be affirmed.

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An erecutor is personally liable for money of his testator invested in Confederate

bonds, eren if such investment was approved by a court having charge of the settlement of the estate. MR. JUSTICE FIELD delivered the opinion of the court.

Upon the accounts presented by the executor of the probate court in Alabama, for settlement, it appears that he received moneys from the sales of property belonging to the estate of the testator amounting to over $7,000, and invested the same in bonds of the Confederate States. By the decree of the probate court this investment was approved, and the executor was directed to pay the legatees their respective shares in those bonds. Now, the question is, whether this disposition of the moneys thus received, and the decree of the court, are a sufficient answer on the part of the executor to the present suit of the legatees to compel an accounting and payment to them of their shares of those funds.

It would seem that there could be but one answer to this question. The bonds of the Confederate States were issued for the avowed purpose of raising funds to prosecute the war when waged by them against the government of the United States. The investment was, therefore, a direct contribution to the resources of the Confederate government; it was an act giving aid and comfort to the enemies of the United States ; and the invalidity of any transaction of that kind, from whatever source originating, ought not to be a debatable matter in the courts of the United States. No legislation of Alabama, no act of its convention, no judgment of its tribunals, and no decree of the Confederate government could make such a transaction lawful.

We admit that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not

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loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution. The validity of the action of the probate court of Alabama in the present case, in the settlement of the accounts of the executor, we do not question, except so far as it approves the investment of funds received by him in Confederate bonds, and directs payment to the legatees of their distributive shares in those bonds. Its action in this respect was an absolute nullity, and can afford no protection to the executor in the courts of the United States.

The act of Alabama, which the executor invokes in justification of the investment, has been very properly pronounced unconstitutional by the highest tribunal of that State (Houston v. Deloach, 43 Ala. 364; Powell v. Boon f Booth, Ib. 459), and the attempt of its legislature to release executors and trustees from accounting for assets in their hands invested in a similar manner rests upon no firmer foundation.

Had the legatees of the testator voluntarily accepted the bonds in discharge of their respective legacies, the case would have presented a very different aspect to us. The estate might then have been treated as closed and settled, but such is not the fact. The bonds were never accepted by the legatees, nor does it appear that the executor even went so far as to offer the bonds to them.

It is urged by counsel for at least a modification of the judgment of the circuit court, that the money received by the executor was in Confederate notes, which at the time constituted the currency of the Confederate States. It does not appear, however, that he was under any compulsion to receive the notes. The estate came into his hands in January, 1858, and no explanation is given for his delay in effecting a settlement until the war became flagrant. And even then he was not bound to part with the title to the property in his hands without receiving an equivalent in good money, or such, at least, as the legatees were willing to accept.

Judgment affirmed. SWAYNE, DAVIS, and STRONG, JJ., dissented.




It is for the jury to determine what is meant by the term disease, as used in the

application for insurance. Substantial truth is alone required in the answers of the assured.

MR. JUSTICE STRONG delivered the opinion of the court.

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The principal defence set up at the trial was, that in the application for insurance false answers had been given to the questions propounded by the defendants. Those questions were, in substance, whether the person whose life was proposed for insurance had had certain diseases, or, during the next preceding seven years, any disease, and the answers given were that he had not. It was in reference to this that the court instructed the jury it was for them to determine from the evidence whether the person whose life was insured had, during the time mentioned in the questions propounded on making the application, any affliction that could properly be called a sickness or disease, within the meaning of the term as used, and said, “ For example, a man might have a slight cold in the head, or a slight headache, that in no way seriously affected his health or interfered with his usual avocations, and might be forgotten in a week or a month, which might be of so trifling a character as not to constitute a sickness or a disease within the meaning of the term as used, and which the party would not be required to mention in answering the questions. But again, he might have a cold or a headache of so serious a character as to be a sickness or disease within the meaning of those terms as used, which it would be his duty to mention, and a failure to mention which would make his answer false."

There is no just ground of complaint in this instruction, either considered abstractly, or in its application to the evidence in the case. It was, in effect, saying that substantial truth in the answer was what was required. If, therefore, the defendants have been injured it was by the verdict of the jury rather than by any error of the court.

The judgment is affirmed.



[JANUARY, 1874.]



The word " to " held to be inclusive

to December 31, held to include December 31.

The opinion of the court was delivered by

AGNEW, C. J. The contract in this case was for the sale of “one thousand barrels good green merchantable crude petroleum, forty gallons to the barrel, gravity forty to forty-six degrees, at a temperature of sixty degrees Fahrenheit, to be delivered, buyer's option, at any time from this date to December 31, 1870, in bulk cars," &c. Does the expression to December 31, 1870, include the 31st day?

This question cannot be decided by cases which interpret dubious expressions in law or rules of court, in order to preserve rights or fulfil special purposes. What we are concerned with here is in ascertaining the meaning of the parties in this particular contract. The preposition to is prop

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erly applicable to place or position, while till or until properly applies to 4 time. Yet to is in common parlance, and sometimes in legal phraseology, applied to time. It has also various significations indicating toward, to, and into. In regard to time, it often indicates a coming or passing into a day, as well as arrival at it. Thus it is said, “ The court adjourned from the 30th to the 31st of December," or "from the first to the thirty-first,” or " from day to day.” Now in each instance we understand that the court will reassemble on the last day. Whenever the expression is from day to day, or from one day to another, we always understand the second day to be included. Again, one says, “ I have to the 31st to do a thing ; " or the other says, " You shall have to the 31st to do it.” No one doubts the party can do the thing on the 31st. Such is the time designated for performance. Another expression to be found in this contract affords an illustration, to wit, “ Gravity from forty to forty-six degrees.” It cannot be doubted if the oil be of a gravity of either forty or forty-six degrees it would fill the contract. Let us expand the language of this writing somewhat. The words of it are, “ To be delivered, buyer's option, at any time from this date to December 31st, 1870." Then read it thus, the seller saying, “ I will deliver to you one thousand barrels of oil at any time from this date to December 31st, 1870, at your option.” Can it be doubted that when the seller says, “I will deliver at your option," the buyer may call for the delivery of the oil on the 31st, and the seller would be bound to deliver it. The parties did not refer themselves to “decided cases, but had their own meaning, which was that the limit should be the 31st day of December;— that, the last day of performance. The selection of the last day of the month and of the year has some influence in fixing that as the last day of performance, as if the parties had said, “ All the month of December, or all this year.” January 1st begins a new period. The time is necessarily mutual, so that if the buyer may demand on the 31st, the seller may deliver on the 31st.

The fact that a subsequent contract adds the word “inclusive" after the 31st of December, does not interpret the prior contract, which is without the word “ inclusive.” The earlier contract must stand on its own language. The insertion of the word in the second contract may have been due to greater precision, or greater precaution to prevent misconstruction, and yet they may mean the same thing. It does not follow because the latter is expressly “ inclusive,” the former meant to be “ exclusive.” We, therefore, interpret the language as we think the parties intended, to wit, that the buyer could call for the oil in the year 1870, and before the 1st of January, 1871; the word " to " having no precise and definite signification to require exclusion of the last day, by reason of its plain grammatical meaning

The case of Cleveland v. Sterrett, 20 P. F. Smith, 204, was decided in the same spirit of liberal interpretation to reach the evident intent of the parties.

The judgment of the court below is reversed, and judgment is now entered for the plaintiff on the case stated, for the sum of fourteen hundred dollars, with interest from July 12th, 1873.


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Held: that the sureties upon the bond of a cashier of a national bank were not

liable to the directors of the bank for losses caused by the defalcation of the cashier, where the sureties were misled as to the condition and management of the bank by the publication of reports required by the national currency act, and the bond was entered into subsequent to and the defalcation occurred before the publication

of the reports. It seems that the publication of the reports after the sureties had entered upon

the bond did not estop the directors to allege the existence of facts that could be established only by proving the falsity of the reports.

The opinion of the court was delivered by

LINDSAY, J. The Lebanon National Bank organized under the provisions of the act of Congress of June 3, 1864, and commenced business about the 3d of August, 1869, when Mitchell was selected as cashier, and was immediately inducted into office. Though required to execute bond immediately, the bond, for reasons not explained, was not delivered until the first of November following. In June, 1870, Mitchell was discovered to be a defaulter to a large amount, and failing to make good the losses occasioned by his breach of duty, this action was brought to recover the amount from his sureties. The defalcations for which the sureties are sought to be held liable are alleged to have occurred between the 14th of September, 1869, and June 3, 1870. The court below adjudged that they should account for such as occurred before the acceptance of the bond, and rendered judgment against them for $8,089.

The technical defences relied on are not noticed further than that the court does not regard it as essential that banking institutions, doing business under the national currency act, shall signify their acceptance of the official bonds of their cashiers by a written memorandum to that effect, entered upon the journal or minute-book by their directory. The acceptance of the bond may be presumed from the fact that after it has been submitted to the directory for approval, it is retained by the bank, and the cashier permitted to enter upon, or continue in, the discharge of his duties; and that it was presented to and approved by the directory may be established by oral testimony. 12 Wheaton, 64; 3 Pickering, 335; 2 Met. (Mass.) 522; 1 Har. & G. 324, and Morse on Banking, 223.

The first business transacted by the bank, after its organization, was the purchase of the assets of the banking firm of Burton, Mitchell & Co. Mitchell, the defaulting cashier, was a member of that firm, and had been acting as its cashier. The National Bank accepted from Burton, Mitchell & Co. bills and notes represented to amount to about-$51,000, but which in point of fact amounted to only about $39,000. This discrepancy was

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