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COOPER, EXECUTOR, v. OMOHUNDRO.

October 1, 1873

COOPER, EXECUTOR,
v.
OMOHUNDRO.



ERROR to the Circuit Court for the Eastern District of Virginia; in which court Littleton Omohundro, a citizen of Ohio, sued Richard Cooper, a citizen of Virginia, executor of Silas Omohundro (which said Silas was in his lifetime a citizen of the same State), to recover certain advances which the plaintiff, the said Littleton, who was the son of the said Silas, the defendant's testator, had made (as the evidence tended to show, though this fact was not in any way shown by the pleadings), during the rebellion, and while funds could not be transmitted from Virginia to Ohio for the said Silas, his father. The said Silas, the decedent, though living in Virginia, had been building a house in Ohio, for his wife (or reputed wife) and children, who resided there, and where he was in the habit of visiting them till the rebellion broke out. He died in 1864. The court gave judgment for the plaintiff, and the defendant brought the case here on error.

The opinion of the court was delivered by: Mr. Justice Clifford stated the case, and delivered the opinion of the court.

Messrs. J. M. Carlisle and J. M. Lyons, for the plaintiff in error; Mr. J. M. Crump, contra.

Advances were made by the plaintiff to Silas Omohundro in the sum of $4390, as alleged in the bill of particulars filed in the case. None of that amount, as the plaintiff alleges, was ever paid by the decedent, and the defendant, as his executor, having neglected and refused to pay the same, the plaintiff brought an action of assumpsit against the defendant, as such executor, to recover the amount. Service being made the defendant ultimately appeared and pleaded the general issue. Both parties being present they waived a jury, and agreed that the issues of fact should be tried and determined by the court without the intervention of a jury.

Subsequently the defendant filed a special plea, that the plaintiff ought not to have and maintain his action aforesaid against him because, he says, that at the time of making the supposed contract and promise in the declaration mentioned, war existed between the United States and the Confederate States, and that the plaintiff and the testator of the defendant were alien enemies, concluding with a verification and a prayer for judgment. Responsive to that special plea the plaintiff filed a replication denying the allegations thereof, and prayed that the same might be inquired of by the country.

Three depositions were introduced by the plaintiff to sustain the issue on his part, and he also introduced certain receipts, four of which were signed by the reputed wife of the decedent, and two by the contractor employed to build a dwelling-house for his reputed wife and children. Taken together, these proofs tend strongly to prove that the decedent was indebted to the plaintiff in the sum of $4390, as found by the Circuit Court.

Countervailing evidence was introduced by the defendant consisting of five depositions, a deed from the decedent to his reputed wife for her life, remainder to her six children, and the will of the testator with the probate thereof, the Virginia orginance of secession, and an ordinance of the State requiring the governor to call volunteers into the service of the State to repel invasion and to protect the citizens of the State in the emergency, and ten other ordinances passed by that State during the rebellion. All of the testimony introduced on the one side and the other being set forth at large in what is denominated in the transcript a bill of exceptions, filling thirty-seven pages of the transcript.

None of the evidence introduced by the plaintiff was objected to at the time, nor is any part of it made the subject of an exception, nor was any request made by the defendant at the close of the plaintiff's case for a ruling adverse to the right of the plaintiff to recover. On the contrary, the defendant immediately proceeded to introduce evidence responsive to that introduced by the plaintiff, and evidence to show that the decedent never promised the plaintiff as alleged in the declaration, and at the close of his evidence requested the Circuit Court to decide substantially as follows:

1st. That the alleged contract, inasmuch as war existed at the time between the United States and the Confederate States, was illegal and void.

2d. That the alleged contract, if not actually void, was an executory agreement, and as such was terminated by the war.

3d. That the alleged contract, if otherwise valid, was too indefinite to be executed.

4th. That no interest is recoverable during the war or any portion of the war upon a contract between alien enemies.

5th. That upon the whole case, judgment should be for the defendant.

But the court refused so to decide, and ruled against the defendant upon each of the propositions, and the defendant excepted to the said ruling.

Under those circumstances the record states that 'the court does find the facts in the case for the plaintiff, and gives judgment that the plaintiff recover of the defendant the sum of $4391, with interest from the 24th day of June, ...


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