¶1delivered the opinion of the court.
¶2F. C. Dunnington, as clerk of the Supreme Court at Nashville, collected in U. S. currency taxes on lawsuits due the State, which he failed to account for and pay over, amounting, principal and interest, to January 1, 1880, together with 12f per cent penalty, to-1538.50.
¶3Plaintiff .in error was sued in the Davidson Circuit Court, as surety for Mr. Dunnington on his official bond, for the sum aforesaid. He plead a tender of said sum in Tennessee Bank Notes of the “New Issue,” or “Torbett Issue,” issued since May 6, 1861, and files said sum in said Issue in court with his plea. His Honor, the circuit judge, held that the tender was not good, and gave judgment against Marr. Marr’s-motion for a new trial being overruled, he appeals.
¶4The proof shows that the notes tendered were genuine notes of the Bank of Tennessee, and there is no proof that they were issued in aid of the rebellion.
¶5The case of Clark v. Keith, 4 Lea, 719, and 8 Lea, 703, affirmed by the Supreme Court of the United States, at its present 'term, MS. opinion by Chief Justice Waite, is conclusive of this case.
¶6After protracted lifigation, and very full discussion ■ and most thorough consideration, that case decides that, under the 12th section of the charter of the Bank of *472Tennessee, acts of 1837-8, chapter 107, page 153, the genuine notes of the Bank of Tennessee, whether issued before or after May 6, 1861, and not proven to have been issued in aid of the rebellion, shall be receivable at the Treasury of the State, and by all tax collectors and other public officers, in all payments for taxes and other moneys due the State.
¶7It follows that the tender by Marr was good, and there was error in the action of his Honor, the circuit iudge, in holding to the contrary.
¶8The judgment will be reversed. Marr will pay the costs of the circuit court accrued up to the filing •of his plea of tender. The balance of said costs, and the costs of this court, will be paid by the State of Tennessee.