stranger, is the possession of the child, it is equally so, where the gift is directly made by the father himself. There can be no difference in principle. So that, upon the supposition that this was a gift without a consideration deemed good in law, and actual possession were absolutely necessary, the fact of the possession of the slave is fully established by the testimony in the case. We have looked carefully through the entire evidence adduced upon the trial, and if any of the badges of fraud recognized by the law, are brought to light, it must be confessed that we have not been able to detect them. All the circumstances surrounding the parties at the time of the gift tend most strongly to rebut any presumption of fraud, and nothing is discernible in subsequent events to give rise to it. We conceive that the title of the plaintiff, by virtue of the gift to his wife, is, therefore, full and complete. But this is not the only ground upon which he is entitled to recover; for his title, as has been shown in a previous part of this opinion, arising from his own possession since his marriage, is equally clear and indisputable.

But it has been contended that fraud is a question of fact, and that it falls peculiarly within the province of the jury. To this, we answer that it is a mixed question of law and of fact to be submitted to the jury: yet like all other questions of fact, it can only be established by competent proof. Whenever a jury shall find fraud, and that without such evidence as shall be sufficient to establish it, or without any evidence whatever indicating it, we consider it not only within the province, but even the imperative duty of this court, to set it aside. We do not conceive that we are called upon to set aside the verdict in this case for a mere preponderance of testimony, but for the fact that it is so manifestly against the evidence as, at first blush, to shock our sense of justice and right. But it is contended by the defendant, that, although the merits of the case should be in favor of the plaintiff, yet he can not recover, as the facts are not such as to enable him to support the form of action which he has adopted. It has been held in Pennsylvania, that, although replevin was prohibited by a statute of the legislature to be brought against a sheriff, who has taken goods in execution, yet, that after the sale, a person claiming property in the goods might maintain this action against the sheriff's vendee: Shearick v. Huber, 6 Binn. 2. It was also held in New York, that, although the defendant in the execution could not himself maintain replevin, yet, that the action might be brought by a third person against the sheriff; for if an officer having an execution against A., under

took to execute it upon goods in the possession of B., he assumes upon himself the responsibility of showing that such goods were the property of A., and if he fail to do this, he is a trespasser by taking them: Thompson v. Button, 14 Johns. 84. We are clear, therefore, from a full and patient investigation of the whole case, that the circuit court erred in overruling the plaintiff's motion for a new trial.

Judgment reversed.

VOLUNTARY CONVEYANCE, WHEN VOID AS TO EXISTING CREDITORS: See Reade v. Livingston, 8 Am. Dec. 520; Hutchinson v. Kelly, 39 Id. 250. See this subject discussed at length in the note to Jenkins v. Clement, 14 Id. 703. FRAUD IS A QUESTION OF LAW WHEN THE FACTS ARE ASCERTAINED: Pettikone v. Stevens, 38 Am. Dec. 57, and note.

HOYS v. TUTTLE.

[8 ARKANSAS, 124.]

WRITTEN AGREEMENT TO PAY A SUM OF MONEY, on or before a day certain, with a provision that it may be paid in Arkansas currency, is not discharged by a tender of the amount due thereon, in Arkansas currency, after maturity.

SURETY ON A COST BOND MAY BE A WITNESS for a party to the suit, upon the filing of a new and sufficient bond.

IF NO PLACE FOR THE PAYMENT OF MONEY IS SPECIFIED, the party who is to make the payment, must seek the other party, if within the state. ASSUMPSIT, on a written instrument for the payment of forty dollars on or before July 1, 1843. The instrument contained a provision that payment might be made in Arkansas currency. The further facts appear in the opinion.

D. Walker, for the appellant.

E. H. English, for the appellee.

By Court, JOHNSON, C. J. This case was brought into this court by appeal to reverse the decision of the court below, overruling the motion for a new trial. The bill of exceptions exhibits several points for our adjudication, each of which will be disposed of, in the order there presented. The question first to be determined is, whether a tender in the currency of Arkansas at any time after the obligation fell due, could operate to protect the defendant from its payment in the constitutional currency of the country. The instrument upon its face, is in

the alternative, and there can be no doubt but that it could have been discharged in the currency of Arkansas, in case the

maker, by his own laches, did not deprive himself of that right. The legal interpretation of the contract is, that it may be discharged, on or before the day of its maturity, in Arkansas currency; but if not so discharged then to become a specie debt. It is not pretended that any attempt was made to make payment until after the bond had reached maturity; but in order to excuse the omission an effort is made to show that the agent of the plaintiff concealed and kept it out of the way, so as to prevent its payment, and thereby to convert it into a specie debt. How this really was in point of fact, is wholly immaterial, as it can have no influence upon the question involved. It is by no means essential that the debtor should be actually presented with the paper constituting the evidence of the contract between the parties, in order to enable him to make a complete legal tender. He is authorized to make the tender, on the last business hour of the day, upon which the debt falls due, and if he avails himself of his legal rights, he can not be deprived of their benefit, by the neglect or refusal of the creditor to receive the thing contracted for, and to deliver up the evidence of the debt.

The next step taken by the plaintiff, in the progress of the trial, was to prove that their agent, before and at the time the debt became due, resided in the vicinity of the defendant. This testimony was resisted upon the ground that the witness was a security in the bond for the costs of the suit. The objection was sustained by the court, and the reason assigned is, that the bond for costs, being a prerequisite to the commencement of the suit, it could not be canceled and another substituted in lieu of it. It appears affirmatively by the record that the plaintiff tendered good and sufficient security, and offered to execute a new bond, conditioned for the payment of all costs that had or might accrue. The opinion of the court delivered in the case of McLain's Adm'x v. Churchill et al., 5 Ark. 240, is directly in point, and conclusive against the decision of the circuit court in this

case.

After the testimony was closed, the court was called upon for sundry instructions. The plaintiff first moved the court to instruct the jury that it was the duty of Tuttle, the defendant, to seek the plaintiffs, or their agent, if resident in the county where the debt was contracted, and to tender the Arkansas currency, or seek so to do, on the day the writing fell due, and that if he failed to do so, the jury should find for the plaintiffs. This the court refused, but proceeded to instruct as follows, to wit: "That if a note be made payable in Arkansas currency, or money in the

alternative, on or before a particular day, the maker of the note is bound to pay, or tender the Arkansas currency, on or before the day the note fell due; and that if he failed to do so, his election is gone, and the maker of the note is bound to pay the money: And that if the jury believe that the Arkansas currency was not tendered until three days after the writing obligatory became due they must find for the plaintiffs." The court ruled correctly in refusing to instruct the jury in the terms indicated, as they would have been fully warranted in supposing that in case the creditors resided beyond the limits of the county where the contract was made that there would be no necessity of using any exertion whatever to make the tender. The instruction given by the court was a substantial compliance with the law, and, therefore, correct. It is laid down in the case of Smith v. Smith, 2 Hill (N. Y.), 351, that "in general, if no place for the payment of money be specified in a contract, the party who is to make the payment, must seek the other party, if within the state; and a tender at the residence of the latter during his absence will not avail." The court also gave other instructions without the request of either party; some of which have already been virtually passed upon, and the rest are mere abstract propositions as having no evidence upon which they can be based. The defendant having wholly failed to tender the amount of the obligation, at any time during the day that it fell due, in Arkansas currency, or to show any legal excuse for his failure to do so, the debt became payable from that time alone in constitutional currency. It is not pretended that any attempt was made to discharge it in specie subsequent to its becoming a specie debt; it is, therefore, clear that no facts were adduced before the court, which would relieve the defendant from the costs of the suit. The circuit court, therefore, clearly erred in refusing a new trial. Judgment reversed.

COSTAR V. DAVIES.

[8 ARKANSAS, 213.]

PROMISSORY NOTE GIVEN AND RECEIVED for and in discharge of an open account, is a bar to an action upon the open account, although the note be not paid.

MATTER OF DEFENSE, WHICH AROSE AFTER THE COMMENCEMENT of the ac tion, is admissible under the general issue, for the purpose of mitigating the damages, and not as a bar to the whole action. To have such effect it must be pleaded puis darrein continuance.

DELIVERY OF THE PROPERTY SOLD IS NOT NECESSARY to pass the title, as between the parties to the sale, if the purchase price has been paid.

ASSUMPSIT on an open account. After the commencement of the action one of the plaintiffs and one of the defendants compromised the same, upon the defendant giving his promissory note. Judgment was given for the plaintiffs. The further facts appear in the opinion.

Yell, for the appellants.

Pike and Baldwin, for the defendants.

By Court, JOHNSON, C. J. It is contended by the appellants, that the note executed by them in favor of the appellees, operated as an extinguishment of the cause of action upon which this suit was founded: and that, therefore, they were entitled to a judgment in the court below. An action can not be maintained on an original contract for goods sold and delivered by one who has received a note as conditional payment, and has passed away the note: Harris v. Johnston, 3 Cranch. 318. A promissory note given and received for and in discharge of an open account, is a bar to an action upon the open account, although the note be not paid. A note without a special contract, will not of itself discharge the original cause of action. But by express agreement, even the note of a third person may be received in payment: Sheehy v. Mandeville, 6 Id. 253. In general, a higher security taken from the debtor himself, extinguishes the original contract. This proceeds upon a presumption of law, that it is taken in satisfaction of the original debt; for if it appear otherwise upon the face of the security, it will not operate as an extinguishment. It is a mere question of intention: The United States v. Lyman, 1 Mason, 482. It was admitted by the witness of the appellees, that the note was executed upon a settlement of the accounts between the parties, and that it was to be considered as a satisfaction of the original debt, in case it should be paid with a certain slave or otherwise; but that not until then was the suit to be dismissed.

The only point then to be determined is, whether the contingency has happened upon which the note was to operate as an extinguishment of the original debt. Thomas N. Byers, the witness of the appellees, and the only one who testified in the case, states, in substance, that about the thirty-first of December, 1845, he, as the agent of the appellees, called on the appellants to settle said claim, and that he, as such agent, settled the same at the sum of five hundred and fifty-eight dollars and ninety-two cents with interest at the rate of six per cent. from the eighteenth of March, 1845, and that he then took from them their note for