I fully concur in what has been said by my brother Byrd, in response to the application for a re-hearing of these cases; but the zeal with which the application is pressed by the learned and able counsel for the appellants, and in consequence of some additional suggestions furnished by one of the counsel for our consideration since the main argument in behalf of the application was submitted, it is deemed proper to take further notice, briefly, of the question of interest of the judge of probate in the matters of litigation which came before him for adjudication.
The judge had the power, under our statute, to receive payment of the final decrees rendered against the guardian ; and on receiving payment thereof, became liable to pay over the money to the person entitled thereto, on demand. Bevised Code, § 793.
But the judge’s power to receive payment of the decrees was restricted, as against the plaintiffs in the decrees, to the reception of money — such money, only, as the plaintiffs were bound to accept. — Aicardi v. Robbins, January term, 1868.
Having received payment in Confederate States treasury-notes, the plaintiffs, therefore, were not bound to accept them, in satisfaction of their respective decrees ; and each had two separate and distinct remedies for the enforcement of the right to have good money. One was to treat the payment to the judge of probate, as a valid satisfaction, and coerce the payment of good money by him ; and if this remedy had been adopted, the judge would have been estopped from making the defense, that he had not received good money in satisfaction. The other remedy was, the one which was pursued, viz: To repudiate the payment to the judge, and coerce a valid satisfaction out of the defendant. — Aicardi v. Robbins, supra. These remedies being inconsistent, were not concurrent; but the right of *355election existed as to which should be adopted; and the election to pursue one of them, necessarily amounted to an abandonment of the other. It follows that the course pursued by the plaintiffs respectively, relieved the judge of probate from all liability to each of them, on account of the payments by the defendant to the judge.
The only other liability the judge could be under, then, would be a liability to the defendant for the amount of the “ Confederate money” paid by the defendant to the judge. As to this it may be said : First. No legal liability could possibly exist on account thereof, until a demand was made of the judge for this currency, of which there is no proof' Second. Were the Confederate States treasury-notes still in the possession of the judge ? and if a demand of them had been made and followed by a refusal of the judge to pay or deliver them, still, no legal liability would be created against the judge thereby, for we judicially know such notes to be valueless. Third. The payment of said notes into the “ depository office” of the Confederate States at Atlanta, (with the exception of a small amount,) as is shown by the records, respectively, was no conversion of them by the judge, as against the defendant, at a time when they were of some value; because the defendant participated in the act of thus disposing of said notes, and ivas the principal agent in its execution. How, then, was the judge interested in the proceedings within the meaning of the statute ?
It must be borne in mind that in the present case the judge was not called upon to decide upon any question of disputed fact, the determination of which, one way or the other, would fix upon him, or exempt him from, liability. There was no dispute as to the material fads, most of which were proved by the defendant himself ; and the main duty of the judge was, to decide upon a legal question, presented by uncontroverted facts, the decision of which one way or the other, could impose upon him no legal pecuniary liability. And a pecuniary interest is the character of inter" est contemplated by the statute to disqualify the judge,, when he is not related to either party within the fourth degree of consanguinity or affinity, or has not been of counsel in the cause for either party. — Eevised Code, § 635.
*356If the foregoing be correct views of the question involved, it results that the application for a re-hearing is rightfully overruled ; and the case of Wilson v. Wilson, 30 Ala. 655, is not believed to be in conflict with the conclusion here attained.