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tract, a common fund to be loaned out by the that case, and the causes are all remanded, Company as opportunity offered. The stock with instructions to render each of them for and reserve fund formed a guaranty capital the defendant. for the security of the return of the deposit to the creditor.

GEORGE OULTON, Collector, etc., Piff. in Err., v. THE CALIFORNIA INSURANCE COM

PANY.

[No. 170.]

Error to the Circuit Court for the District of California.

Mr. Chief Justice Waite delivered the opinion of the court:

*RICHARD H. and Jacob H. Pleasants, [*116 Plffs. in Err.

v.

HAMILTON G. FANT.

(See S. C., 22 Wall., 116–123.) Declarations of partner, when not admissible to prove partnership—presumption of partnership-question for jury-when court may instruct jury what verdict to find.

At the expiration of every six months the directors were required to ascertain the amount of the profits, and after deducting certain salary and expenses and setting out a certain proportion, not exceeding one tenth, to the stockholders as a compensation for furnishing the capital, apportion the remainder for a dividend upon the capital stock, reserve fund The judgment of the circuit court is reversed and deposits, at such yearly rate as the total amount of net profits would permit. The divi- upon the authority of Barnes v. R. Co., 17 dend apportioned to each account was to be Wall., 294, 21 L. ed. 544, and Stockdale v. in proportion to the time the several amounts Atlantic Insurance Co., decided at the last represented in the account formed part of the Term, ante, 348, and the cause remanded, with funds of the Corporation, and the rate of div-instructions to enter judgment in favor of the defendant. idends on ordinary deposits was to be increased by twenty per cent. to form the rate upon the funds remaining permanently in the hands of the Corporation, including what were denominated "term deposits." The directors were also required to determine and make known from time to time a rate of interest to be paid to depositors who might wish to take such rate in lieu of dividends on drawing out the balance of their accounts between one dividend day and another. Thus these depositors contracted, not for a rate of interest to be paid upon their deposits, but for a share of the profits of the business in which their money was, by agreement, to be employed. It is true that the profits of the Company were principally to be derived from interest upon loans made, but they were none the less on that account profits. The interest received for the loan of each deposit was not kept by itself, and paid to the depositors after deducting a charge to cover expenses, but all was placed in a common fund, and when the net result of the business was ascertained, that was divided among the several contributors according to the value of their contributions. Such a division clearly produces a dividend according to the common understanding of that term. The parties themselves so understood it, for they gave it that name in the contracts, executed when the depositors made their deposits. They stipulated for the payment of dividends and not interest.

The judgment of the Circuit Court is reversed and the cause remanded, with instructions to enter a new judgment in favor of the defendant.

GEORGE OULTON, Collector etc., Plff. in Err., v. THE SAVINGS & LOAN SOCIETY.

L. H. CARY, Collector, etc., Plff. in Err., v. SAME;

and

*1. Where the question before the jury is whether the defendant was a partner with K., so as to make him liable for the debts of the firm, K.'s declarations to third persons are not admissible in favor of plaintiffs. until they have established a prima facie case of partnership by other evidence. 2. The admission of defeudant and the deposition of K. to the effect that defendant had procured for K. a loan of money to be used in a purchase of cotton and that K. had voluntarily promised tc give defendant a part of the profits, if any were made, for his assistance in procuring the loan when no sum or proportion of profits was named does not raise such a presumption of partnership 3. Nor is such evidence sufficient to require the court to submit the question of partnership to a jury, and its instruction to find for defendant was right.

4. Such instruction is right where the court would decide for defendant on a demurrer to all the evidence, and the true rule in the case is, that if to the judicial mind the evidence tested by the law of the issue and the rules of evidence is not sufficient to justify a jury fairly and reasonably in finding a verdict for plaintiff, the court should so tell the jury.

5. If the court can see that if a verdict for plaintiffs should be rendered, it ought to be set aside as being unwarranted by the testimony, instructions to find for defendant should be given in advance of the verdict.

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While the rule of evidence does not allow SAME, Plff. in Err., v. THE GERMAN SAV- one partner to bind or speak for the other, INGS & LOAN SOCIETY.

[Nos. 169, 172, 173.]

until proof has been given of his authority, it, nevertheless, requires nothing more than

ERROR to the Circuit Court for the District proof tending to establish the authority; proof legally sufficient to go to the jury on the point. *Headnotes by Mr. Justice MILLER.

of California.

Mr. Chief Justice Waite delivered the opinion of the court:

The material facts in these cases are the same as in Cary v. The San Francisco Savings Union, just decided, ante, 779. The judgments are all reversed for the reasons assigned in

NOTE. Evidence; declarations and admissions to mor-see note to Teller v. Patten, 15 L. ed U. S. prove partnership; general reputation; common ru 831.

note to Grand Chute v. Winegar, 21 L. ed. U. S. 174.

When a verdict may be directed by the court-see

Rosenstock v. Tormey, 32 Md., 182; Irvine v. Buckala, 12 Serg. & R., 35; Roberts v. Gresley, 3 C. & P., 380; Nat. Mech. Bank of Balt. v. National Bk. of Balt., 36 Md., 5–21.

That a participation in the profits of a mercantile house or adventure is, in itself, prima facie evidence of partnership therein, as to third parties, and the burden is on the party sharing such profits to show that they were received by him, on some account or in some capacity, which relieved him from the legal presumption thus raised prima facie against him.

Berthold v. Goldsmith, 24 How., 542, 16 L. ed. 764; Winship v. Bank of U. S., 5 Pet., 561; Bigelow v. Elliott, 1 Cliff., 35; Parker v. Canfield, 37 Conn., 250; Colly, Part., §§ 79, 85; 1 Lindl. Part., 13, 14; 102 Law Lib., 74; Story, Part., § 38.

The English rule laid down in Waugh v. Carver, 2 H. Bl., 235, although repudiated in a great measure by many courts in this country, and notably in England by the House of Lords in 1860 (Cor v. Hickman, 8 H. L. Cas., 268; Bullen v. Sharp, 1 Law Rep. C. P., 86), has been formally adopted by this court in Berthold v. Goldsmith, ubi supra, confirmed in the same court in Seymour v. Freer, 8 Wall., 215, 19 L. ed. 310.

The recognition, however, does not go to the full extent of the doctrine of Waugh v. Carver, supra, in making a participation in profits conclusive proof of partnership under all circumstances, as in the Maryland cases, Taylor v. Terme, 3 Harr. & J., 505; Benson v. Ketchum, 14 Md., 355, and the older English and American authorities. This court, treating the adjudications elsewhere, on the point, as "conflicting and irreconcilable" (8 Wall., 215, supra), adopts a middle course of its own, and, while it pronounces the rule in Waugh v. Carrer, supra, to be a sound one (as had been done before in 5 Pet., 561, above referred to) and confirms and adopts its reasoning (24 How., 542, supra), nevertheless holds that the rule does not apply to "A case of service or special agency, where the employee has no power as a partner in the firm, and no interest in the profits as a property, but is simply employed as a servant or special agent, and is to receive a given sum out of the profits, or a proportion of the same, as a compensation for his services." Beyond that exception, the court does not go, in its adjudication or its reasoning, and with that exception it strictly applies the rule that "Every man who has a share of the profits of a trade or business, ought also to bear his share of the loss, for the reason that in taking a part of the profits he takes a part of the fund on which the creditor relies for payment." The party to be excepted must be an employee, and must have no inter est in the profits as property. Those are the limits of the exception. There is nothing, in language or doctrine, to countenance the idea that a party, not an employee, but contributing or lending or procuring the capital of a conern, can stipulate, ab initio, for a part of its profits, as a compensation for doing so, and vet escape liability for its debts. The exception allowed by the court is one founded upon sound principles of public policy and not open to abuse.

Loomis v. Marshal, 12 Conn., 69. 22 WALL. U. S.. Book 22.

The other sought to be set up here is supported by no such principles, and opens the door to the utmost latitude of fraud. It is I contrary to the whole current of authority. Hesketh v. Blanchard, 4 East, 144; Seymour v. Freer, 8 Wall., 222, 19 L. ed. 313; Bisset, Part., 30; Lindley, Part., 732; 103 Law L., 580, 581; Gouthwaite v. Duckworth, 12 East, 124; Cheap v. Cramond, 4 B. & Ald., 667; Sheridan v. Medara, 2 Stock. Ch., 475; Bearce v. Washburn, 43 Me., 564; Brownlee v. Allen, 21 Mo., 123; Wood v. Vallette, 7 Ohio St., 178; Catskill Bank v. Gray, 14 Barb., 477; Pierson v. Steinmyer, 4 Rich. (S. C.) L., 310.

Mr. R. T. Merrick, for defendant in er

ror:

1. Where it is sought to charge several as partners, an admission of the fact of partnership by one is not receivable in evidence against any of the others, to prove the partnership.

After the partnership is shown to exist by independent evidence, satisfactory to the judge, the admissions of one of the parties may be received to affect the others, but not even then to prove the partnership when that is the point in controversy before the jury, to be determined by their verdict.

1 Greenl., § 177; 1 Tayl. Ev. and notes; Dutton v. Woodman, 9 Cush., 260; Rosenstock v. Tormey, 32 Md., 182.

2. (a) Actual participation in the profits of a commercial enterprise will not create a partnership, as between the participants and a third person, unless it appear that such participant was in some way interested in the profits of the business as principal, possessing some of the rights and powers of a partner, and might bring suit as such, and go into equity and compel an account.

(b) Whether a partnership will be implied by the law where it was not intended by the parties, depends on whether each alleged member of the firm would be entitled to a preference as against the separate creditors of the other for the balance due, as between themselves.

(c) The parties may make such stipulations as they please, as to the mode and ratio in which each shall be compensated for his services or advances without acquiring the character of partners, so long as they neither hold themselves out as partners, nor contract expressly or by implication for any specific interest in the property or business for which the advances were made or services rendered.

Berthold v. Goldsmith, 24 How., 542, 16 L. ed. 764; Seymour v. Freer, 8 Wall., 202, 19 L. ed. 306; Story, Part., § 49 to § 55; Fitch v. Harrington, 13 Gray, 468; Denny v. Cabot, 6 Met., 92; Heckert v. Fegeley, 6 W. & S., 139; Chase v. Barrett, 4 Paige, 160; Cox v. Hickman, 8 H. of L. Cas., 268; Kilshaw v. Jukes, 3 Best & Smith, 847; Bullen v. Sharp, 1 Law Rep., C. Pleas, 108; 1 Lindley, Part. 2d ed., p. 42.

3. The court will not submit the evidence to the jury, unless it is of such character as would justify the jury in finding a verdict in favor of the party upon whom is the burden of proof.

Improvement Co. v. Munson, 14 Wall., 448, 20 L. ed. 872; Herring v. Hoppock, 15 N. Y., 781

| 409.

49

Mr. Justice Miller delivered the opinion of the court:

that purpose, then it was erroneous, and the evidence here offered to Keene's statements to plaintiffs was improperly excluded.

The case rests after all on the question whether in Fant's declaration to the plaintiffs and Keene's deposition there was evidence of a partnership on which a verdict for plaintiff could have been sustained.

The plaintiffs in error were plaintiffs below, and the simple question in dispute was, whether the defendant was a partner in the firm of L. F. Keene & Co., so as to charge him with a debt conceded to be due by that firm to plaintiffs. The case was tried before a jury, and many exceptions taken to the ruling of the We have been favored by counsel with a court in admitting and excluding evidence reference, very learned and very exhaustive, which was not important. When the testimony to the authorities on the question of how far was through, both plaintiffs and defendants or when a participation in the profits subjects prayed instructions of the court, which were a party to the liability of a partner to third all refused, and the court said to the jury: persons. And it must be confessed that some "There is no evidence in this cause from which of the discriminations, where profits are used the jury can find that defendant had such an as compensation for definite services, are very interest in the purchase and sale of the cotton nice. by Keene & Co. as will make him, the defendant, a partner as to third persons; and the jury will, therefore, find their verdict for defendant."

The bills of exception disclose the testimony on which this instruction was founded, and we 117*] are called upon to say "whether the verdict founded on that instruction should be set aside and the judgment reversed.

The direct testimony offered to prove the partnership, is confined to the statements of Fant in a conversation with one of the plaintiffs, and clerk in their office, and the deposition of Keene. The substance of the former is, that Fant denied that he was a partner, said he knew from some experience what was necessary to make him a partner, and admitted that he had procured for Keene a loan of $10,000 in gold, from a bank of which he was president, and that he was to receive part of the profits of Keene's venture in purchasing the cotton with that money, as compensation for procuring the loan. What portion of the profits he was to receive, was not stated.

Keene, in his deposition, denied that Fant was a partner in the transaction, but said that Fant had negotiated for him the loan from the bank and he had made Fant a promise, which was entirely voluntary, to give him a part of the profits he might realize, and that he had mentioned no particular part or portion of the profits to be so given.

After the admission of this testimony, plaintiffs, on the ground that they had sufficiently shown a relation between Fant and Keene to admit of Keene's declaration to third persons as to Fant's interest, offered to prove by one of the plaintiffs that Keene had told him Fant was a partner, and asked that plaintiffs would advance money enough on the cotton then in their possession as brokers to enable him to pay Fant his money and let him out of the firm. This offer was objected to, and the objection sustained by the court.

A large amount of testimony, however, was admitted, the object of which was to show that Fant, as president of the bank, was in the habit of using the money of the bank in private speculation, without the knowledge of the directors; but this was very feeble and far from establishing that fact.

If the admission of Fant to plaintiffs, and the evidence of Keene, are insufficient to raise a prima facie presumption of partnership, then Keene's declarations on that subject were inadmissible, and the court was right in its instruction to the jury. If it was sufficient for

We do not think that a close examination into these is necessary in this case. According to Keene's testimony there was clearly no contract binding him to divide the profits with Fant. He says the promise was entirely *voluntary, and that no portion of the [*120 profits was mentioned. By "voluntary" he undoubtedly means that it was not a part of the agreement by which he obtained the money, but a gratuitous promise to reward his friendship if he succeeded in his venture.

Fant's statement to the plaintiff, as detailed by the latter, differs but very little from this. As a compensation for obtaining the loan, he says that Keene agreed to allow him a part of the profits, but how much or what proportion, or whether it was a definite sum to be paid out of the profits, or a proportionate part of the profits, is not shown.

If one of the most approved criteria of the existence of the partnership in such cases be applied to this, namely: the right to compel an account of profits in equity, the evidence totally fails. In a suit for that purpose, founded on this precise statement, no chancellor would hesitate to dismiss the bill.

But we are pressed with the proposition that it was for the jury to decide this question, because the testimony received and offered had some tendency to establish a participation in the profits, and the question of liability under such circumstances should have been submitted to them, with such declarations of what constitutes a partnership as would enable them to decide correctly.

No doubt there are decisions to be found which go a long way to hold that if there is the slightest tendency in any part of the evidence to support plaintiff's case, it must be submitted to the jury, and in the present case, if the court had so submitted it, with proper instructions, it would be difficult to say that it would have been an error of which the defendant could have complained here.

But, as was said by this court in the case of The Improvement Co. v. Munson, 14 Wall., 448, 20 L. ed. 872, recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is [*121 any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.

The English cases there cited fully sustain the proposition. See, Jewell v. Parr, 13 C. B.,

916; Toomey v. L. & B. R. Co., 3 C. B. (N. S). 146; Ryder v. Wombwell, 4 L. R. Exch., 33, and the decisions of this court have generally been to the same effect.

In the case of Parks v. Ross, 11 How., 362, this court held that the practice of granting an instruction like the present had superseded the ancient practice of demurrer to evidence, and that it answered the same purpose and should be tested by the same rules; and in that case it said the question for the consideration of the court was whether the evidence submitted was sufficient to authorize the jury in finding the contract set up by plaintiff. And in Schuchardt v. Allens, 1 Wall., 359, 17 L. ed. 642, this case is referred to as establishing the doctrine that if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly.

party can submit to a nonsuit and try his case again if he can strengthen it, except where the local law forbids a nonsuit at that stage of the trial, or if he has done his best he must abide the judgment of the court, subject to a right of review, whether he has made such a case as ought to be submitted to the jury; such a case as a jury might justifiably find for him a verdict.

Tested by these principles, we are of opinion the circuit court ruled well. If plaintiffs had secured a verdict on the testimony before us, we think that court ought to have set it aside as not being warranted by the evidence. It is not possible, with any just regard to the principles of law as to partnership and the rules of evidence, as applied to this *tes- [*123 timony, to come fairly and reasonably to the conclusion that Fant was Keene's partner in this transaction.

The judgment of the Circuit Court is af

In the case of Pawling v. U. S., 4 Cranch, 219, the court, by Marshal, Ch. J., said: “The | firmed. general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him; and such conclusions as a jury might justifiably draw, the court ought to draw." See, also, Bk. U. S. v. Smith, 11 Wheat., 171.

It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evidence as is proper in these issues, and rejecting 122*] all else; by *instructing them in the rules of law by which that evidence is to be examined and applied, and finally, when necessary, by setting aside a verdict which is unsupported by evidence or contrary to law.

In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor; that is the business of the jury; but conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be, that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. In such case the

GEORGE GAVINZEL, Appt.,

v.

ROBERT H..CRUMP et al.
(See S. C., 22 Wall., 308-322.)

Parol evidence to vary contract-contracts
based on Confederate currency—when valid.
1. The court cannot, without evidence author-
izing it to be done, import words into a contract
which would make it materially different, in a
vital particular, from what it is.

2. Parol evidence is inadmissible to alter the terms of a contract by showing that there was an antecedent parol agreement or understanding between the parties, different in a material particular, from that which the contract contained.

3. Contracts based on confederate currency will be enforced when made in the usual course of States, and not made in furtherance of the rebellbusiness between persons resident in the insurgent ion.

4. If parties make contracts where there is no equal means of information, the courts cannot unfraud, upon contingencies uncertain to both, with dertake to set them aside.

[No. 190.]

Argued Feb. 11, 1875. Decided Feb. 22, 1875. PPEAL from the Circuit Court of the Unitof

APPEAL

ginia.

the

This was an action brought in the court below by the appellant, a citizen of Switzerland, against the appellees, to enforce a deed of trust, executed by the Crumps to Cannon, to secure the payment of the following bond:

"Know all men by these presents, that I, Robert H. Crump, of the County of Henrico, and State of Virginia, am held and firmly bound unto Dr. George Gavinzel, of the City of Richmond, and State of Virginia, in the sum of three thousand two hundred and sixty dollars for the payment of which sum, well and truly to be made to the said George Gavinzel, his heirs, assigns, executors and administrators firmly by these presents, as witness my hand and seal, this 20th day of November, 1863.

The foregoing obligation is made subject to the following terms and conditions, to wit: that the said sum of three thousand two hundred and sixty dollars is to be retained by me, and is not to become due and payable until the close of the present war between the Confederate and the United States of America,

during which time the said sum shall no bear any interest whatever, nor shall the sam become due and payable after the close of the said war until demand for the same shall be made by the said Gavinzel or his legal rep resentatives upon me or my legal representa tive; and as soon as the said war shall have closed, and said demand shall thereafter have been made, the principal sum of three thou sand two hundred and sixty dollars, without interest thereon, shall be paid. But if at that time I shall not be prepared to pay the said sum, I shall have the right to retain the same in my hands for the space of two years from and after the time when such demand is made, I paying legal interest thereon from such time until the said principal sum is paid; and after the expiration of said two years the said principal sum, with such interest as may have accrued thereon after such demand as afore said, shall be absolutely due and payable; and the said Gavinzel, his heirs, assigns and personal representatives, shall have the right to enforce the payment of the same.

And upon this further condition, that any time after the first day of April, 1864, and during the continuance of the war, if the said George Gavinzel, or any attorney in fact duly authorized by him to receive payment of said sum, shall be present in person in the City of Richmond, and State of Virginia, I shall have the right (if I elect so to do) to tender said sum, without interest thereon, to said Gavinzel in person, or to his said attorney in fact in person, in said city and State, in current bankable funds and upon such tender being made, the said Gavinzel or his said attorney in fact shall be bound to receive the same in full payment and satisfaction of this obligation; and thereupon the said obligation shall be surrendered and canceled. But said tender is not to be made except to said Gavinzel or his said attorney in fact in person, in the city and State aforesaid."

"Witness the following signature and seal, this 20th November, 1863.

trust, and H. H. Wells (complainant's counsel), shall sell the property in said deed described, according to the provisions thereof applicable to the sale, and from the proceeds thereof pay to said complainant, Gavinzel, the said sum of $203.75, with interest as aforesaid, and the residue of the proceeds to the said defendant, Robert H. Crump; and that the plaintiff recover his costs to be taxed."

The complainant appealed. The case further appears in the opinion. Mr. H. H. Wells, for appellant. Mr. S. Ferguson Beach, for appellees. Mr. Justice Davis delivered the opinion of the court:

It appears by the pleadings in this case, that on the 20th of November, 1863, Gavinzel, the appellant, loaned to the appellee, Robert H. Crump, both then being residents of Richmond, Virginia, the sum of $3,260, and that Crump gave to Gavinzel his bond for that amount, and to secure its payment conveyed (his wife joining in the conveyance) to Edward Y. Cannon, trustee, certain real estate in the State of Virginia.

The main question in the case arises on the construction of the bond.

The bond is peculiar in its character and unusual in its terms. It is not due until the close of the war of the rebellion, and not even then until specific demand is made for the money. Two things must concur to give the obligee or his representative a right of action; the termination of the war and demand for the money. On demand, if the war has closed, the bond can be discharged by the payment of the principal sum, without interest, but the borrower, if he chooses, can retain the money two years longer by paying legal interest. On the expiration of these two years the principal sum and accruing interest is absolutely due and payable. So far the terms of the bond, it is admitted, are plain enough, but there is still another condition on which the chief controversy in the case depends. It is in these words:

ROBERT H. CRUMP. (Seal)" The court below entered the following decree: "And upon this further condition, that at "This cause came on to be heard at this any time after the first day of April, 1864, term, to wit: on this 28th day of October, 1871, and during the continuance of the war, if the and was argued by counsel; and thereupon, said George Gavinzel, or any attorney in fact upon consideration thereof, the court is of duly authorized by him to receive payment of opinion that the sum of $3,260, specified in said sum, shall be present in person in the the bond and deed of trust in the bill and City of Richmond, and State of Virginia, I answer mentioned, being for so-called Confed-shall have the right (if I elect so to do) to erate States currency, is solvable in money tender said sum, without interest thereon, to of the United States in the sum of $203.75 said Gavinzel in person, or to his said attor(which is the equivalent thereof in value at the date of said bond), to bear interest from the 8th day of October, 1866:

It is therefore adjudged, ordered and decreed that the said bond and deed of trust stand as securities for the said sum of $203.75, lawful money of the United States, with interest thereon from the said 8th day of October, 1866, until paid by the defendant, Robert H. Crump, to the complainant, George Gavinzel. And it is further adjudged, ordered and decreed that, unless the said defendant, Robert H. Crump, pay to said complainant the said sum of $203.75, with interest from the said 8th day of October, 1866, within two months from the date of this decree, the defendant, Edward Y. Cannon, trustee in said deed of

ney in fact in person, in said city and State, in current bankable funds; and upon such tender being made the said Gavinzel or his said attorney in fact shall be bound to receive the same in full payment and satisfaction of this obligation; and thereupon the said obligation shall be surrendered and canceled. But said tender is not to be made except to said Gavinzel or his said attorney in fact in person, in the city and State aforesaid.”

It is proved in the case that the money loaned was confederate notes, although the fact is not so specified in the bond, and that after the first of April, 1864, the war then continuing, Crump provided himself with the funds for the return of the loan, but found no one in Richmond who was authorized to re

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