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Full text of "Reports of cases in the Supreme Court of Appeals of Virginia"

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DO NOT ORCUIAIE 



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REPORTS OF CASES 



DECIDED IN THE 



SUPREME COURT OF APPEALS 



Av^IF^GIIStl^^.. 



BY PEACHY R. GBA-TTAN. 



VOL. XVIII. 

FROM OCTOBER 1, 1867, TO OCTOBER 1, 1868. 
SECOND EDITION. 



RICHMOND : 
J. H. O'BANNON, SUPERINTENDENT OF PUBLIC PRINTING. 

1890. 



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Vlrfln'.-- 

333814 






James E. Goode, Printer, No. 7 North Seventh Street^ 
Richmond, Va. 






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JUDGES 



COURT OF APPEALS 



DURING THE TIME OF THESE REPORTS. 



R. C. L. MONCURE, President. 
WILLIAM T. JOYNES. 
ALEXANDER RIVES. 



Attorney General: 
THOMAS RUSSELL BOWDEX. 



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TABLE OF CASES REPOBTED. 



Allen & als, r. Hart, 770 

Anderson v. The Commonwealth, 316 
Arents r. The Commonwealth, 800 

Ballard & ale. v. Whitlock, 251 

Bennett v. Hunter, 106 

Bo^well & al. and Charon & Co., 230 

Boulware v, Newton, 755 

Bowyer & als. and Hill & als., 390 

Brent v. Washington's adm'r, 563 

Broughton v. Coffer, 196 
Brummel & Co. v. Endere, Sutton 

& Co., 931 

Brummel & Co. v. Hill's ex 'or, 931 
Brummel & Co. v. James Gray's 

Sons, 931 

Butler and Ragland & Co., 346 

Cannon & als. and Gordon & als., 414 
Cazenove and Portner & Recker, 106 
Chandler & als. and Drake's ex 'or, 969 
Charron <fe Co. v. Boewell & al., 230 
Chum and Ward <fc als., 854 

Citv of Richmond and DeVoss & 

ak, 362 

Citv of Richmond and Jones & 

Oo., 554 

City of Richmond and Thomas & 

als., ' 623 

City of Richmond and Wade & 

als., 623 

aaflin & Co. v. Steenbock & Co., 898 
Coffer and Broughton, 196 

Commonwealth and Anderson, 316 
Commonwealth and Arents, 800 

Commonwealth and Garner, 1054 
Commonwealth and Jett, 994 

Conmionwealth and Kemp & 

als., 1033 

Commonwealth and Matthews, 1054 
Commonwealth and Old, 975 

Commonwealth and Trim, 1048 

Commonwealth and Walker & 

als., 14 

Corbett v. Nutt, trustee, 666 

Cronie v. Hart & als., 789 

Crump and Omohundro's ex' or, 749 



Davis & als. and Faulkner & als., 694 
Davison and Stevens & al., 873 

Dearing's adm'x v, Rucker, 456 

DeVoss & als. v. The City of Rich- 
mond, 362 
Drake's ex 'or v. Chandler & als., 969 

Enders. Sutton & Co. and Brum- 
mel & Co., 931 

Faulkner & als. v. Davis & als., 694 
Ferguson & als. and Littleiohn, 56 
Finney & als. and Midlothian 

Coal Mining Co., 326 

Foster and Woodward, Baldwin 

&Co., 213 

Gardiner & als. and Robinson & 

als., 545 

Gamer's Case, 1054 

Gordon & als. v. Cannon & als., 414 
Griffith & als. and Hoxton & als., 614 

Hagan and Mettert's adm'r, 246 

Hart and Allen <fe als., 770 

Hart & als. and Cronie, 789 

Hill & als. V. Bowyer & als., 390 

Hill's ex 'or and Brummel & Co., 931 

Hoxton & als v. Griffith & als., 614 

Hunter and Bennett, 106 

James Gray's Sons and Brummel 
& Co., 931 

James River & Kanawha Co. v. 
Littlejohn, 56 

Jett's case, 994 

Jones & Co. v. The City of Rich- 
mond, 554 



Kemp & als. case, 
Kephart and MilLan, 



1033 
1 



Lawhome, exparte, 90 
Littlejohn v. Ferguson & als., 56 
Littlejohn and James River & Ka- 
nawha Co., 56 



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VI 



OASBS BEPOBTBD. 



Martin v. Snowden, trustee, 106 
Mason's ex'x <& als. and Rhett & 

wife, 579 

Matthew's case, 1054 

Mettert's adm'r v. Ha^an, 246 

Midlothian Coal Mining Co. v. 

Finney & als.- 326 

Millan v. Kephart, 1 

Newton and Boulware, 765 

Nutt, trustee, and Corbett, 666 

Old's case, 975 

Omohundro's ex'or v. Crump, 749 

Pazton, trustee, and Williamson, 

trustee, 509 

Portner & Becker v. Cazenove, 106 

Ragland & Co. v. Butler, 346 

Rhett & wife v. Mason's ex'x & 

als., 579 

Rixey and Utterbach & als., 335 

Robinson & als. v. Gardiner & 

als., 545 

Rosenbaumst;. Weeden, Johnson 

& Co., 837 

Rncker and Dearing's adm'x, 456 



Scott's ex'x V, Scott, 160 

Smith, &c. and Turner, 885 

Snowden, trustee, and Martin, 106 
Stearns & als. and Taylor, 261 

Steenbock & Co. and Oaflin & Co. , 898 
Stevens & al. v. Davison, 873 

Taylor v. Steams & als., 261 

Thomas & als. v. The City of Rich- 
mond, 623 
Trim's case, 1048 
Turner v. Smith, Ac, 885 

Utterbach & als. v. Rixey. 335 

Wade & als. v. The City of Rich- 
mond, 623 
Walker & als. v. The Common- 

wealth 14 

Ward & als. v. Churn, 854 

Wash ington 's adm 'r and Brent, 563 
Weeden. Johnson & Co. and 

Rosenoaums, 837 

Whitlock and Ballard & als., 251 

Williamson, trustee, v. Paxton 

trustee, 509 

Woodward, Baldwin & Co. v. 
Foster, 213 



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TABLE OF CASES CITED. 



Abrahams v. Peyton, 16 Gratt 

470, 122 

Adams and Lovett, 3 Wend. 380, 866 
Adams and North Pa, R. R Co., 

64 Penn. 94, 848 

Adams and Whit worth, 6 Rand. 

333, 944, 947, 963, 955, 966, 967 
Adams v. Worldley, 1 Mees. & 

Welsh. 374, 219 

Am and Masterman's Bank, 2 

Law Rep. ch. 397, 819 

Alcock V. HOI, 4 Leigh 622, 28, 46 
Alden v. BeaU, 11 GUI & John. 

123, 619 

Aler and Pulliam, 15 Gratt. 64, 

259, 905, 924 
Alexander and Calloway, 8 Leigh 

114, 402, 408, 412 

Alexander and Watson ex*or, 1 

Wash. 353, 480 

Allen V. Furbish, 4 Gray 504, 218 
Allen V. Jaquish, 21 Wend. 628, 12 
Ailing and Crane, 3 Green C. L. 

425, 25 

Alsept V. Eyles, 2 H. Bl. Ill, 22 

Alston and McGahey, 2 Mees. & 

Welsh. 206, 680 

Ambler v. Wyld, 2 Wash. 36, 499 
American Pnnt Works v. Law- 
rence, 3 Zabr. 603, 557 
Amy and United States, Quar. 

Law Jour. July, 1859, 163, 

1007, 1019, 1031 
Anderson and Berry, 22 Ind. 36, 864 
Anderson v. Commonwealth, 18 

Gratt 295. 649 

Anderson & al. v. DeSoer, 6 

Gratt 363, 80 

Anderson v. Lively, 6 Leigh 77, 74, 79 
iUiderson v. Tompkins, 1 Brock. 432 
Anderton and Newman, 2 New 

Rep. 224, 172 

Andrews v, Partington, 2 Cox 

223, 602, 603 

Antonio's Case, 3 Brev. 562, 

1000, 1015 
Archer v. Ward, 9 Gratt 622, 258 



Aivyle*8 ex'or and Miller, 6 

Leigh 460, 705 

Armstrong and Barnwell & Cru- 

ger, 3 John. Cas. 5, 810 

Armstrong and Beaver County, 

44 Penn. 63, 817 

Ashurst V. Bank of Australia, 37 

Eng. L. & E. 195, 829 

Aspinwall and Commissioners of 

Knox County, 21 How. U. S. 

539, 382. 384, 818 

Atkinson and White, 2 Wash. 94, 501 
Aude V. Dixon, 6 Exch. 869, 

960, 962, 963 
Austin and Fletcher, 11 Verm. 

447, 861, 865 
Aylett's ex*or and Moore's ex*or, 

1 Hen. & Mun. 29, 429 

Aymar and North River Bank, 3 

Hill N. Y. 262, 389 

Ay res v. Lewellin, 3 Leigh 609, 269 

Babcock and Crease, 23 Pick. 334, 321 
Bade and Raumlraich, 9 Wise. 

559, 267, 309 

Badham v. Mee, 1 Rus. & My. 

631, 586 

Bailey v. Mayor, &c., of New 

York, 3 Hill 531, 370 

Baily v. Gentry, 1 Miss. 164, 

267, 267, 276 
Bainbridge v. Wade, 12, Queen's 

Bench 317, 21 Eng. C. L., 221 

Baird v. Rice, 1 Call 18, 52 

Baker v. Holtpzaffell, 4 Taunt 45, 176 
Baker v. Lorilland, 4 Comst 257, 707 
Baltimore & Ohio R. R. Co. v. 

Polly, Woods & Co., 14 Gratt 

448, 852, 870 
Bank of Albion, v. Smith, 27 

Barb. 489, 227, 228 

Bank of Australia and Ashurt, 37 

Eng. L. & E. 195, 829 

Bank of England and Davis, 2 

Bing. 393, 9 Eng. C. L. 401, 378, 386 
Bank of Geoma v. United States 

Bank, 10 Wheat 333, 386 



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VIU 



CASES CITED. 



Bank of Kentucky v. Schuylkill 

Bank, 1 Pars. Sel. Caa. 180, 379, 385 
Bank of Louisiana v. City of New 

Orleans, 5 Amer. Law Reg. N. 

S. 555, 835 

Bank of Metropolis v. Brent's 

ex'or, 1 Pet. U. S. 89, 228 

Bank of Tennessee and Seay, 3 

Sneed, 558, 940, 959 

Bank of United States v. De- 

veaux, 5 Crancb 87, 1011 

Bank of United States v. Dunn, 

6Pet. U. S. 51, 221 

Bank of United States and Irwin, 

1 Barr. 349, 890 

Bank of United States v. Patten, 

5 How. Miss. 200, 787 
Bank of United States and Lew, 

I Binn. 27, ' 385 
Bank of United States and Ren- 

ner, 9 Wheat. 591, 228 

Bank of Virginia and Reynolds, 

6 Gratt. 174, 578 
Bank of Virginia and Stainback, 

II Gratt. 260, 389 
Bank of Washington and Walker, 

3 How. U. S. 62, 970 

Bank of Woodstock and Salin, 21 

Verm. 363, 379 

Barratta, &c. and Mitchell, 17 

Gratt. 465, 929 

Barclay and Coosa River Steam 

Co., 30 Alab. 120, 266, 280 

Barker's Case, 2 Va. Cas. 122, 991 
Barker and Howes, 3 John. 506, 210 
Barker v. Prentis, 6 Mass. 430, 218 
Barlow a7id Pindar, 31 Verm. 529, 965 
Barnes v. Billington, 1 Wash. C. 

C. 29, 28 

Barnett and Vanhook, 4 Dev. 268, 862 
Barney and Brackett, 28 New 

York 303, 861 

Barough v. White, 4 Barn. & Cr. 

325, 10 Eng. C. L. 345, 813 

Barry v. Moore, 3 New Hamp. 

132 227 

Bartlett v. Long, 4 Wheat. 122, 281 
Baskerfield and Burrill, 11 Beav. 

534, 570 

Bassett and Cox, 3 Ves. 155, 585 

Bassett and Stone, 4 Minnes. 483, 267 
Bateman v. Mayor <&c., 3 Hurl. & 

Nor 323 388 

Baughert?. Nelson, 9 Gill 299, 263, 281 
Baumbach v. Bade, 9 Wise. 559, 

267, 309 

Baylor's lessee v. Dejamette, 13 
Gratt, 152, 733, 734, 736 



Beall and Alden, 11 Gill & John. 

123, 619 

Bean & al. i'. Simmons, 9 Gratt. 

389, 894 

Beard and Keene, 98 Eng. C. L. 

371 809 

BesLvd and Right, 13 East. 210, 541 
Beaumarchais and Common- 
wealth, 3 Call 122, 480, 482, 751 
Beaver County v. Armstrong, 44 

Penn. 63, 817 

Bechtel and Hoffman, 52 Penn. 

190, 821 

Beecher and Murphy, 3 Cush. 

511, 389 

Beeckman v, Lansing, 3 Wend. 

446, 28 

Beime v. Dunlap, 8 Leigh 514, 

469, 470, 471, 474, 505 
Beirne and McClung, 10 Leigh 

394, 795 

Belfour v. Weston, 1 T. R. 310, 176 
Bell V, Lord Ingestre, 12 Queen '« 

Bench 317, 64 Eng. C. L., 221 

Bennett's Case, 8 Leigh 745, 1052 
Bennett v. Boggs, 1 Bald. 74, 264 
Benson v. Whittam, 5 Sim. 32, 602 
Berry v. Anderson, 22 Ind. 36, 864 
Berry and Tate, 2 Bailey S. C, 970 
Besant v. Cross, 10 Com. Bench 

895, 70 Eng. C. L. 219 

Beverley and Kinney, 2 Hen. & 

Mun. 518, 147 

Bibb and Pleasants, 1 Wash. 8, 498 
Bibb and Reid, 5 Alab. 281, 865 

Biddle and Field, 1 Yeates 132, 219 
Biddle and Green, 8 Wheat. 1, 

269 271 271 294 
Bigelow and Colton, 13 Gray 309* 225 
Billington and Barnes, 1 Wash. 

C. C. 29, 28 

Billing and Tucker, 2 Jur. N. S. 

483, 570 

Billups V. Sears & als., 5 Gratt. 31, 452 
Bilmeyer v. Evans, 4 Wright 324, 304 
Bissell V. City of Jeffersonville, 

24 How. U. S. 287, 387 

BisselJ V. Mich. E. & N. Ind. R. 

R. Co., 22 New York 258, 388 

Black V. Shreve, 2 Beasl. 455, 864 
Black & al. v. Zacharie & Co. 3 

How. U. S. 483, 376 

Blades v. Arundale, 1 Man. & Sel. 

711, 28 

Blair v. Williams, 4 Litt. 34, 

270, 270. 276, 301, 302, 309 

Blow V. Maynard &c., 2 Leigh 20, 795 
Blunt and Ladd, 4 Mass. 402, 20 



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CA8K8 CITED. 



IX 



Boehm r. Sterling, 7 T. R. 423, 

83^,833 
Boggs (xnd Bennett, 1 Bald. 74, 264 
Bogle & als. v, Vowles, 1 Call 

244 480 483 

Boiaseau and May, 8 Leigh 164, ' 827 
Boston and Thayer, 19 Pick. 511, 370 
Boston Water Power Co. and 

Sewal, 4 Allen 277, 385 

Boetwick and People, 32 New 

York 445, 860, 865 

Boawell v. Jones, 1 Wash. 322, 1(H3 
Boame v. Hatcher, 11 B. Monr. 

23, 239 

Bowden v, Laing, 14 Sim. 113, 588 
Bower r. Swadlin, 1 Atk. 294, 25 

Bowker v. Burdekin, 11 Mees. & 

Welsh. 127, 859, 861, 863 

Boycot and Manley, 2 Ell. & Bl. 

46, 75 Eng. C. L., 221 

Boyd and Steele, 6 Leigh 541, 27, 33, 52 
Boyle and Green how, 7 Blackf. 

56, 958 

Brachan v. Griffin, 3 Call 375, 765 
Brackett v, Barney, 28 New York 

303, 861 

Bradford and Rathhone, 2 Alah. 

401 281 

Bradley and Parker, 2 Hill N. Y. 

584, 861 

Brainerd and City of New Lon- 
don, 22 Conn. 552, 558 
Branch and Kevan & als., 1 

Gratt. 274, 422, 424, 425, 430 

Branson and Harvey, 1 Leigh 

108, 71 

Brantley and Fowler, 14 Pet. U. 

S. 318, 808 

Brashear and Lapsley, 4 Litt. 34, 

301, 302, 309 

Brashear v. West, 7 Pet. U. S. 
608, 425 

Breckenridge aad Pitman, 3 
Gratt. 127, 259 

Bremridge and Evans, 35 Eng. 
L. & E. 397, 861 

Brent's ex' or v. Bank of Me- 
tropolis, 1 Pet. U. S. 89, 228 

Brewer A ux. v. Opie, 1 Call 212, 618 

Bridgport Bank v. New York & 
New Haven R. R. Co., 30 Conn. 
2;n, 385 

Brigham & al. v, Coburn, 10 
Gray 329, 679 

Brockenbrough's ex'ors v. Spin- 
dle's adm'rs, 17 Gratt. 21, 945 

Bronson v. Kinzie, 1 How. U. S. 
311, 264, 265, 266, 267, 268, 281 
Vol. xviii — ii 



Bronson v. Newberry, 2 Doug. 

Mich. 38, 

267, 269, 275, 276, 281, 306 
Bronson and Rodes, 34 New York 

649, 477 

Brooks V. Mitchell, 9 Mees. & 

Welsh. 15, 813 

Brown v. Cassamajor, 4 Ves. 498, 602 
Brown and Cowles, 4 Call 447, 578 
Brown v. Davis, 3 T. R. 80, 831, 832 
Brown v. DeWinton, 6 C. B. 336, 

60Eng. C. L., 940 

Brown v. Ferguson, 4 Leigh 37, 322 
Brown v. Quilter, Amb. 621, 176 

Brown v. Wiley & al., 20 How. 

U. S. 442, 224 

Bruce v. Schuyler, 8 Smeedes, & 

Marsh 9, 281 

Bruce and Taylor, Gilm. 88, 

944, 947, 947, 953, 955 
Brumdred v. Del Hoy, 1 Spence 

328, 925 

Bryan v. Hyre, 1 Rob. 94, 600 

Buchanan r. Clark, 10 Gratt. 154, 34 
Buck and Lamphear, 5 Amer. 

Law Reg. N. S. 224, 574 

Bugbee and Howard, 24 How. U. 

s: 461, 269 

Bullitt's ex'ora v. Winston, 1 

Munf. 269, 19, 23, 28, 52, 55 

Bull V. Vardy, 1 Ves. Jr. 271, 585 
Bumgardner r. Circuit Court of 

Howard county, 4 Miss. 50, 286 
Bunell V. Bunell, Amb. 660, 603 

Burch and Enders' ex'ors, 15 

Gratt. 64, 264 

Burdikin v. Bowker, 11 Mees. & 

Welsh. 127, 859, 861, 863 

Burke and Green, 23 Wend. 496, 24, 49 
Burrill v. Baskerfield, 11 Beav. 

534, 570 

Burroughs v. Peyton, 16 Gratt. 

470, 122 

Bushnell v. Parsons, Pre. ch. 218, 603 
Butcher v. Carlile, 12 Gratt. 520, 

470, 505 
Butchers & Drovers' Bank and 

Farmers & Mech. Bank, 16 

New York 125, 389 

Butler V. Palmer, 1 Hill N. Y. 

324, 264, 270 

Buxton V. Home, 1 Show. 174, 21 
Byrnes and Croswell, 4 John 287, 258 

Califf V. Hawthorn, 2 Wall. U. 

S. 16, 308 

Callaway v, Alexander, 8 Leigh 

114, 402, 408, 412 



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GASES CITED. 



Calvert v. Godfrey, 6 Beav. 97, 706 
Caperton's ex'ora & als. and 

Lewis, & als., 8 Gratt. 148, 425 
Carcemi v. The People, 18 New 

York 129, 1(H1 

Carew and State, 13 Rich. 498, 308 
Carlile and Butcher, 12 Gratt. 

520, 469, 505 

Carr's adm'r v. Glascock's adm'r, 

3 Gratt. 343, 29, 34 

Carryl and Taylor <& al., 20 How. 

U. S., 583, 1022 

Carter and Jones, 15 Mees. & 

Welsh. 718, 8 

Carter and Smith, 3 Rand. 167, 682 
Cartwright v. Gardner, 5 Cush. 

273, 8 

Cassamajor and Brown, 4 Ves. 

598, 602 

Catskill Bank v. Messenger, 9 

Cow. 37, 25 

C. C. & C. R. R. Co. and Zabris- 

kie, 23 How. U. S. 381, 387 

Central Savings Bank and Mills, 

16 Gratt. 94, 33 

Chadwick v. Moore, 8 Watts & 

Serg. 49, 267, 267, 276, 309 

Chaffin and Pope, Amer. Law 

Reg. April, 1868, 578, 689 

Chambers and Com. Bank, 8 

Smeedes & Marsh. 9, 281 

Chambers v. George, 5 Litt. 335, 471 
Chandler v. Temple, 4 Cush. 285, 861 
Chapman and Newman, 2 Rand. 

93, 70, 87 

Chapron & al. and Chenault, 5 

Missouri 468, 922 

Chapron and New kirk, 17 Illinois 

344, 266, 280 

Cheaney v. Hooser, 9 B. Monr. 

330, 665 

Cheetham and Leeds, 2 Cond. 

Eng. ch. 74 181 

Cheetham v. Ward, 1 Bos. & Pul. 

630, 25 

Chenault v. Chapman & al., 5 

Missouri 438. 922 

Chesson and Phelps, 12 Ired. Law 

194, 8 

Chesterfield v. Janssen, 2 Ves. 

147, 944 

Child and Wood, 20 Illinois 209, 

266, 280 
Chinn v, Murray, 4 Gratt. 348, 85 
Chowning v. Cox & als., 1 Rand. 

306, 429 

Chowning v. Taylor's adm'r, 3 
Leigh 654, 429 



276 
924 
824 
557 



Circuit Court of Howard county 

and Bumgardner, 4 Miss. 50, 
City Bank of New York v. Mer- 

ritt, 1 Green 131, 
City of Bridgport and Rose, 17 

Conn. 243, 
City of Buffalo and Howell, &c., 

15 New York, 519, 
City of Dayton v. Place, 4 Ohio 

N. S. 380, 370 

City of Detroit and Hollings- 

worth, 3 McLean 472, 828 

Citv of Dubuque and Gelpceke & 

als., 1 Wall. U. S. 175, 

804, 817, 828 

of Jeffersonville ajid Bis- 



City 



387 



558 
817 
558 



835 



sell, 24 How. U. S. 287, 
City of Lafayette v. Cox, 5 Ind 

38, 
City of Muscatine and Meyer, 1 

Wall. U. S. 384, 
City of New London v, Brainerd, 

22 Conn. 552, 
City of New Orleans and Bank 

of Louisiana, 5 Amer. Law Leg. 

N. S. 555, 
City of Richmond v, Daniel, 14 

Gratt. 388, 558 

City of Syracuse and Kinney, 30 

Barb. 349, 631, 636, 640, 655 

Clarence and Crutchley, 2 Mau. 

& Sel. 90, 939, 949, 955, 956 

Clark and Buchanan, 10 Gratt. 

154, 
Clark V. Clement, 6 T. R. 525, 
Clark V. Jones, 1 Denio 510, 
Clark V. Ix)ng, 4 Rand. 451, 8^ 



34 
26 

8 
89 



Clark V. Mayor &c. of AVashing- 

ton, 12 Wheat. 40, 370 

Clark V. White. 12 Pet. U. S. 178, 81 
Clement and Clark, 6 T. R. 525, 26 
Clore's case, 8 Gratt. 606, 1038 

Coates a7id Hirsh, 86 Eng. C. L. 

757, 244 

Cobum and Brigham & als., 10 

Gray 329, 679 

Cocke and Moseley, 7 Leigh 224, 86 
Coe and Goode, cited in Boehm 

V. Steriing, 7 T. R. 423, a32 

Colby V. Dennis, 36 Maine 9, 281 

Cole and Emolt, Dyer 212, 172 

Cole and Lightfoot, 1 Wise. 26, 280 
Collins V. Godefroy, 1 Bam. & 

Ad. 950, 24 

Col ton and Bigelow, 13 Gray, 

309. 225 

Colt & als. and Stockholders Co- 

chituate Bank, 1 Gray 382, 552 



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0ASB8 CITED. 



XI 



Ck>m. Bank v. Chambers, 8 

Smedes & Marsh 9, 281 

Commercial Bank v. Hughes, 17 

Wend. 94, 648 

Commiaeioners of Knox County 

r. Aspinwall, 21 How. U. S. 

539. 382, 384, 818 

Commissioners of Miami County 

and Moran, 2 Black U. S. 722, 804 
Commonwealth v. Beaumarchais, 

3 Call 122, 480,751 

Commonwealth v. Conner, 2 Va. 

Cas. 30, 980 

Commonwealth and Davis, 16 

Gratt. 134, 404 

Commonwealth and Fox*8adm*r, 

16 Gratt. 1. 917 

Commonwealth v. Fuller, 8 Mete. 

313, 1015 

Commonwealth and Hampton, 7 

Harr. Pa. 329, 263, 270 

Commonwealth v. Hickman, Z 

Va. Cas. 323, 980 

Commonwealth and Martin, 1 

Maaa. 347, 30 

Commonwealth and Million, 1 B. 

Monr. 310, 239 

Commonwealth and Newell, 2 

Wash. 88, 980 

Commonwealth r. Peas, 2 Gratt. 

629, 986 

Commonwealth of Pa. and Prigg, 

16 Pet. U. S. 539, 1001 

Commonwealth and Trimble, 2 

Va, Cas. 122, 991 

Conkey v. Hart, 14 New York 22, 

270, 277, 280 

Conner r. Commonwealth, 2 Va. 

Cas. 30, 980 

Conococheague Bank and Rees, 

5 Rand. 326, 959 

Conrad v. Ithaca, 16 New York 

158, 370 

Cooke and Freeman, 2 Exch. 663, 387 
Cooper v. Hepburn, &c., 15 Gratt. 

551, 715, 744 

Cooper and Monk, 2 Str. 763, 2 

Ld. Ray. 1477, 176 

Coosa River Steam Co. v. Barclay, 

3 Alab. 120, 266, 280 

Corbett and Donnelly, 3 Seld. 

500, 281 

Corbin v. Emerson, 10 Leigh 663, 87 
Corcoran and Judson, 17 How. 

U. S. 612, 69 

Corporation of Washington and 
• Weightman, 1 Black U. S. 39, 370 
Corse and Sawyer, 17 Gratt. 230, 370 



County Commissioners and Wil- 
liams, 35 Maine 345, 259, 270 
County Levy, 5 Call 139, 643 
County of Washington and Mc- 
Coy, 7 Amer. Law Reg. 143, 824 
Cousms and Kingley, 47 Maine 91, 281 
Coverly and Prescott, 7 Gray 217, 225 
Cowing and Nelson, 6 Hill 336, 965 
Cowles V. Brown, 4 Call 477, 588 
Cowles and Harvey, 6 Gratt. 393, 204 
Cowles r. Town8end,31 Alab. 133, 220 
Cowman v. Harrison, 17 Eng. L. 

& E. 290, 586 

Cox V. Bassett, 3 Ves. 155, 5a5 

Cox and Chowning, 1 Rand. 306, 429 
Cox and City of Lafayette, 5 Ind. 

38, 558 

Cox V. Thomas* adm'r, 9 Gratt. 

312, 863 

Crane adm*r v. Ailing, 3 Green C 

L. 425, 25 

Crawford v. Jarrett, 2 Leigh 230. 221 
Crawford and McDaniePs ex 'or, 

11 Gratt. 377, 853 

Crawford v. Morris, 5 Gratt. 90, 259 
Crawford's ex 'or v. Patterson, 11 

Gratt 364, 85 

Crease v. Babcock, 23 Pick. 334, 321 
Crenshaw v. Slate River Co., 6 

Rand. 645, 640 

Crittenden arid Jones, 1 Car. Law 

Rep. 385, 309 

Crockett v, Crockett, 2 Phil. 553, 

586, 588, 602 

Crooks V. Moore, 1 Sand. Sup. ct. 

297, 846 

Cross and Besant, 10 Com. Bench 

895, 70 Eng. C. L., 219 

Crosswell v. Byrnes, 4 John. 287, 258 
Crouch & Co. and Watkins, 5 

Leigh 522, 827 

Crow r. Crow, 1 Leigh 74, 618 

Crowningshield and Sturges, 4 

Wheat. 122, 281, 290, 291, 1001 
Cruger v. Armstrong and Barn- 
well, 3 John. Cas. 5, 810 
Crummy and Norris, 2 Rand. 

323, 29, 35 

Crutchley v. Clarence, 2 Mau. & 

Scl. 90. 939, 955, 958 

Crutchlay v. Mann, 5 Taunt. 529, 

940,956 
Cumberlege v. Lawson, 1 Com. 

Bench N. S. 709, 87 Eng. C. L., 861 
Cummings v. State of Missouri, 4 

Wall. U. S. 333, 127, 153, 153 

Cunningham v. Cunningham, 

Amb. 89, 402 



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ized by Google 



Xll 



CASES CITED. 



Cunningham r. Moody, 1 Ves. 

174, 585 

Cunningham & als. and Skip- 

with's ex' or, 8 Leigh 271, 

422, 423, 425, 439, 453 
Curran v. State of Arkansas. 15 

How. U. S. 304. 397, 414 

Curtis and Brown, 2 Comst. 225, 227 
Cuthbert v. Haley, 8 T. R. 390, 972 
Cutler V. Whittemore, 10 Mass. 

442, 861 

Dale and Humphrey, 7 Ell. & Bl. 

266, 90Eng. C. L., 221 

Dales and Snowden, 6 Sim. 66f 587 
Dance & als. v. Seaman & als., 11 
• Gratt. 780, 422, 439 

Daniel and City of Richmond, 14 

Gratt. 388, 563 

Dashields and Jameson's adm'r, 

3 Gratt. 4, 87 

Dashiel and United States, 3 

Wall. U. S. 688, 49, 51 

Davey and Roberts, 4 Barn. & 

Ad. 664, 24 Eng. C. L. 136, 8 ! 

Davies and Brown, 3 T. R. 80, 

831, 832 
Davis V. Bank of England, 2 

Bing. 393, 9 Eng. C. L. 444, 378, 385 
Davis V. Commonwealth, 16 

(iratt. 134, 404 

Davis and Dickenson, 2 Leigh 

401, 407 

Davis' adm'r and Lipscomb's 

adm'r, 4 Leigh 326, 784 

Davis V. Miller, 14 Gratt. 1, 808, 831 
Davis & als r. Phillips, 7 Monr. 

166, 471 

Daw aM(iSpangler, 15 Gratt. 381, 

906, 911 
Dav &c. and Stinson &c. 1 Rob. 

435, 588, 6a5 

Deardorf t». Foreman, 24 Ind. 481, 865 
Dearing's adm'x r. Rucker, 18 

Gratt. 426, 753 

DeCordova v. Galveston, 4 Texas 

470, 281 

Del Hoy v. Brundred, 1 Spence 

328, 924 

Dejarnette and Baylor's lessee, 

13 Gratt. 152, 733, 734, 736 

Dennis and Colby, 36 Maine 9, 281 
Derbyshire &c. R. R. Co. and Ser- 

rell, 9Com. Bench 811, 67 Eng. 

C. L., 834 

Dering v. Earl of Winchelsea, 1 

White & Tudor's Lead. Cas. 

Eq. 117, 26 



De Soer and Anderson & als., 6 

Gratt. 363, 79 

Deveaux and Bank of United 

States, 5 Cranch 87, 1011 

De Winton and Brown, 6 Com. 

Bench 336, 60 Eng. C. L., 940 

Dickenson v. Davis & al., 2 Leigh 

401, 407 

Dickinson v. Hoomes, 1 Gratt. 

302, 568, 569 

Digges and Pluck, 5 Bligh N. S. 

31, 167 

Dill and Rogers, 6 Hill 415, 707 

Dix V. Evans. 3 Munf. 308, 255 

Dixon and Aude, 6 Exch. 869, 

960, 962, 963 
Doe V. Dowell, 5 T. R. 518, 585 

Doe V. Jackson, 1 Barn. & Cress. 

448, 8 Eng. C. L. 126, 541 

Doe V. Martm, 4 T. R. 39, 65, 585 
Doe V. Phillips, 2 Bing. 13, 9 

Eng. C. L. 296, 11 

Dold and Wallace & wife, 3 Leigh 

258, 588, 605 

Dolphin and Graves, 1 Sim. 66, 586 
Donnell and Heaverin, 7 Smedes 

& Mareh. 244, 227 

Donnelly v. Corbett, 3 Seld. 500, 281 
Dowell and Doe, 5 T. R. 518, 585 

Downer v. Phoenix Bank, 6 Hill 

297, 548 

Downes v. Richardson, 7 Eng. C. 

L. 227, 949 

Down V. Hailing, 4 Barn. & Cress. 

330, 10 Eng. C. L. 347. 834 

Downing's ex'ors and Lackland 's 

heirs, 11 B. Monr. 32, 620 

Drew and Payne, 4 East 523, 

239, 239, 243 
Driscomb and Wheeler, 3 Cush. 

285, 11 

Drummond and Newcomb, 4 

Leigh, 57, 69, 682 

Dubois V. Hepburn, 10 Pet. U. S. 

1, 123 

Dunlap and Beirne, 8 Leigh 514, 

469, 471, 474, 505 
Dunn and Bank United States, 6 

Pet. U. S. 51, 221 

Dunn and Maclean, 4 Bing. 722, 

15 Eng. C. L. 129, 844 

Dunn V. Slee, 1 J. B. Moore 2, 33 
Durfee v. Old Col. & Fall Riv. R. 

k. Co., 5 Allen 230, 321 

Durham & als. and Phippin, 8 

Gratt. 457, 422, 423, 425, 430, 439 
Dyer and Waggener, 11 Leigh 

384, 33 



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ized by Google 



CASES CITED. 



Xlll 



Dyke v. Mercer, 2 Show. 394, 



29 



Earl of Stair and Murray, 2 

Bam. & Cress. 82, 9 Eng. C. 

L. 397, 861 

Earl of Winchelsea and Dering, 

White & Tudor Lead. Cas. 117, 26 
Eastern Counties R. R. Co. r. 

Hawkes, 36 Eng. L. & E. 8, 388 
East India Co. and Moodaly, 1 

Bro. C. C. 4b^, 369 

Echols V, Graham, 1 Call. 492, 31 
Edmonds and Essex Bank, 12 

Gray 273, 226 

Edwards and Floyer, Cowp. 112, 951 
Edwards and Palmer, 1 Doug. 

187, note, 167 

Eidson and Leas* ex'ors, 9 Gratt. 

277, 81 

Elcom and Longmore, 2 Young 

& Col. N. R. 363, 586, 587 

Elliott and Greorge, 2 Hen. & 

Mun. 1, 184 

Elliott and Hansford, 9 Leigh 79, 

566,577 
Elhott and Stagg, 104 Eng. C. L, 

373 389 

Ellis and Sketoe, 14 Illinois 76, 776 
Ely and Hill, 5 Sere. & Raw. 363, 218 
Emerson and Corbin, 10 Leigh 

663, 87 

Emolt t?. Cole, Dver 212, 172 

Enders* ex*or v. feurch, 15 Gratt. 

64, 264 

Erskine v. Henrv, 9 Leigh 188, 71 
Erskine v, Staley, 12 Leigh 406, 234 
Erwin t, Vint, 6 Munf. 267, 402, 408 
Essex Bank t;. Edmonds, 12 Gray 

276, 226 

Essex Bank and Fisher <& al., 5 

Gray 373, 376, 379 

Essex Bank and Foster & als., 16 

Mass. 245, 263, 274 

Evans and Bilmever, 4 Wright 

324, ' 304 

Evans v. Bremridge, 35 Eng. L. 

& E. 397, 861 

Evans and Dillard, 4 Ark. 175, 471 
Evans and Dix, 3 Munf. 308, 255 

Evans, trustee v. Green, 15 Gratt. 

153, 243 

Evans and State Bank, 3 Green 

156, 865 

Evans and Stevenson, 10 Ohio N. 

S. 307, 570 

Ewing and Grantley's lessee, 3 

How. U. S. 707, 308 



Exchange Bank v. Monteith, 26 

Nefw York 505, 389 

Ex parte Jewett, 16 Alab. 409, 

707, 707 
Eyles and Alsept, 2 H. Bl. Ill, 22 

Falconer t- . Garrison, 1 McCord. 
Const. 209, 210 

Falconer and Muire, 10 Gratt. 12, 259 

Fanning r. Farmers & Merchants 
Bank of Memphis, 8 Smedes & 
Marsh. 139, 963 

Fant V. Miller & Mayhew, 17 
Gratt. 187, 209 

Fant & al. v. Miller & Mayhew, 
17 Gratt. 47, 963 

Farmers Bank and Ives, 2 Allen 
236, 956, 958 

Farmers & Mech. Bank v. Butch- 
ers & Drovers Bank, 16 New 
York 126, 389 

Farmers & Merchants Bank of 
Memphis and Fanning, 8 
Smedes & Marsh. 139, 963 

Fawcett and McMahon, 2 Rand. 
514, 34 

Fearson and Mason, 9 How. U. 
S. 248. 891 

Feely's Case, 1 Va. Cas. 321, 

999, 1008 

Ferguson and Brown, 4 Leigh 37, 322 

Fei*guson and Leake, 2 Gratt. 
419, 30 

Fern^s Case, Bull. Ni. Pri. 326, 

1042, 1044 

Few V. Marsteller, 2 Cranch 10, 482 
Field V. Biddle, 1 Yeates 132, 219 
Fireman Insurance Co. v. Mc- 
Millan, 29 Alab. 147, 859, 862 
Fisher & al. v. Essex Bank, 5 

Gray 373, 376, 379 

Fisher v. Lacky, 6 Blackf. 373, 281 
Fisher v. Vanmeter, 9 Leigh 18, 

31,53 
FisselPs Appeal, 27 Penn. 55, 619 
Fitchburg Cotton Manufacturing 

Co. V. Melvin, 15 Mass. 268, 172 
Fleetwood v. Jansen, 2 Atk. 467, 454 
Fletcher v. Austin, 11 Verm. 447. 

861, 865 
Fletcher and Sapsford, 4 T. R. 

511, 775 

Flinn's adm*r and Manus, 10 

Leigh 93, 796 

Floyer v. Edwards, Cowp. 112, 951 
Fooks and Pride, 2 Beav. 430, 586 
Ford and McCord, 3 Monr. 166, 471 



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ized by Google 



XIV 



PASES CITED. 



Foreman and Deardorf, 24 Ind. 

481, 865 

Foreman v. Lloyd, 2 Leigh 284, 241 
Forrester and Sterling, 2 Bligh. 

Par. Cas. 575, 33 

Foster & als. v. Essex Bank, 16 

Mass. 245, 263, 274 

Foster v. Jackson, Hobart 52a, 

59a, 25 

Foster v. Jolly, 1 Cromp. Mees. 

& Ros. 703, 220 

Fowler v. Brantley, 14 Pet. U. S. 

318, 808 

Fox^s adm'r v. Commonwealth, 

16 Gratt. 1, 917 

Fox V. State of Ohio, 5 How. U. 

S. 410, 1001, 1004, ioa5, 

1008, 1016, 1007, 1008, 1031 
Franklin Bank, in the matter of, 

1 Paige 249, 552 

Freeborn v. Pettibone, 5 Minnes. 

277, 281 

Free v. Hawkins, 8 Taunt. 92, 4 

Eng. C. L. 31, 219 

Freeman v, Cooke, 2 Exch. 663, 387 
Freeman v. Howe & al., 24 How. 

U. S. 450, 1022 

Freeman and United States, 3 

How. U. S. 556, 917 

French v. Loval Company, 5 

Leigh 627, ' 371 

Fristoe and Gibson, 1 Call 54, 

719, 944 
Fuller and Commonwealth, 8 

Mete. 313, 1015 

Fullerton v. Sturges, 4 Ohio N. 

S. 529, 963 

Fulton Bank v. Marine Bank, 2 

Wall. U. S. 252, 548 

Fulton Bank v. Phoenix Bank, 1 

Hall 392, 833 

Furbish and Allen, 4 Gray 504, 218 

Gelbraith v. McFarland, 3 Cald. 

267, 689 

Galveston and De Cordova, 4 

Texas, 470, 284 

Gantly's lessee and Ewing, 3 

How. U. S. 707, 308 

Gardiner v. London, Chatham & 

Dover Railway Co., 2 Law Rep. 

Ch. Ap. 201, 883 

Gardner and Cartwright, 5 Cush. 

273, 8 

Garland, ex parte, 4 Wall. U. S. 

333, 127 

Garland, &c. v. Loving, 1 Rand. 

396, 713, 715, 742, 744, 746 



Garland v. Lynch, 1 Rob. 545, 29 
Garland v. Rives, 4 Rand. 309, 454 
Garrison and Falconer, 1 McCord 

Const. 209, 210 

Garth and McKey, 2 Rob. 33, 31 

Gaahell v. Morris, 7 Watts & 

Serg. 22, 846 

Gaskdl V. Gaskell, 6 Sim. 643, 9 

Eng. Ch. 643, 737 

Gatchell and Hawksland, Cro. 

Eliz. 835, 859 

Gates r. Green, 4 Paige 355, 181 

Gatherlecole and Hawkins, 31 

Eng L. & E. 305, 917 

Gay V. Hancock, Ac, 1 Rand. 72, 705 
Gayle & als. and Williamson, 4 

Gratt. 180, 73, 79 

Gedge t;. Minne, 2 Bulst. 61, 556 

Gelpcke & al. v. City of Dubuque, 

1 Wall. U. S. 175, 804, 817, 828 

Gentry and Baily, 1 Miss. 164, 

267, 267, 276 
George and Chambers, 5 Litt. 

335, 471 

George v. Elliott, 2 Hen. & Mun. 

1, 184 

Gibson v. Fristoe, 1 Call 54, 767, 944 
Gibson v. Minet, 1 H. Bl. 569, 939, 958 
Giffard v. Hort, 1 Sch. & Let 

386, 409, 85, 731, 736 

Gifford, ex-parte, 6 Ves. 8a5, 26, 33 
Gilliam v. Underwood, 3 Jones 

Eq. 100, 619 

Gilliatt V, Lpch, 2 Leigh 535, 174 
Gilmore and Spier, 1 Comst. 321, 227 
Glascock's aamV and Carr*8 

adm'rs, 3 Gratt. 343, 29, 34, 35 

Godefroy and Collins, 1 Barn. & 

Ad. 950, 24 

Godfrey and Calvert, 6 Beav. 97, 706 
Goniperty & als. and The Queen, 

9 Queen's Bench 824, 58 Eng. 

C. L., 1044 

Goodall and Stubbs, 4 Georg. 106, 228 
Good r. Coe, cited in Boenm v. 

Sterling. 7 T. R. 423, 832 

Goode and Hicks, 12 Leigh 479, ' 

860, 862 
Goold and Morse & als., 1 Kent. 

281, 305 

Gorton and Izon, 5 Bing. 501, 35 

Eng. C. L. 198, 176 

Goshen v. Stonington, 4 Conn. 

209, 263 

Goupy and al. r. Harden & als., 

7 Taunt 159, 2 Eng. C. L. 58, 217 
Governor v. Kellett, 11 Georg. 

286, 863 



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CA8B8 OITBD. 



XV 



Graham and Echkols, 1 Call 492, 42 
Graham and Hoane, 3 Camp. 57, 219 
Graham and al. and Maddox, 2 

Mete Ky. 56, 824 

Graham and Pierpont, 4 Wash. 

C. C. 232, 432 

Graves v. Dolphin, 1 Sim. 66, 586 
Gray r. Monroe, 1 McLean, 528, 284 
Grayson v. Lilly, 7 B. Monr. 6, 

270, 270 
Green r. Biddle, 8 Wheat. 1, 

269, 271, 271, 294 
Green v. Burke, 23 Wend. 496, 24, 49 
Green and Evans, trustee, 15 

Gratt. 153. 243 

Green and Gates, 4 Paige 355, 181 
Greenhow r. Boyle, 7 Blackf. 56, 959 
Green r. bjpicer, 1 Bus. Myl. 395, 586 
Green r. Watts, 1 Ld. Ray. 274, 258 
Gregory and Packham, 4 Hare 

396. 566 

Grejrory and Pelham, 1 Eden 520, 730 
Griffin and Brachan, 3 Call. 375, 765 
Grimball r. Rose, Charlt. 175, 

267, 281 
Grim r. School Directors, &c, 51 

Penn. 219. 861 

Griswold r. Haven, 25 New York 

596, 389 

Groves and Hare, 3 Anstr. 693, 177 
Grymes and Heffeman's adm'r, 

2 Leigh, 512, 71 

Gnerrant v. Tinder, Gilm. 36, 1043 
Gundry v. Pinniger, 14 Beav. 94, 

9 Eng. L. & E. 148, 573 

Hacket and Mercer Countv, I 

Wall U. S. 83, *804, 817 

Hagpin r. Kilby, 3 J. J. Marsh. 

208 239 

Haile and Mason, 12 Wheat. 370, 281 
Halbert, Aa, attd Rae, 17 Illinois 

572, 776 

Haley and Cuthbert, 8 T. R. 390, 972 
Haley r Williams, 1 Leigh 140, 795 
Hailing and Down, 4 Bam. & 

Cree. 330, 10 Eng. C. L. 347, 834 
Hamlett r. Hamlett's ex 'or. 12 

Leigh 350, 619 

Hammond v, Neame, 1 Swanst. 

35, 602, 603 

Hampton v. Commonwealth, 7 

Harr. Pa. 329, 263. 270 

Hancock and Gey, 1 Rand. 72, 705 
Hanood^ and Nicholas, 4 Hen. <& 

Mun. 491, 775 

Hand and Mede, 5 Amer. Law 

Reg. 82, 309 



Haney v. Sharp, 1 Dana 442. 1008 
Hansford r. EUiott, 9 Leigh 79, 

529, 577 

Harden & als. and Goupy & al., 

7 Taunt. 159, 2 Eng. C. L. 58, 217 
Hardesty and Wilson, 1 Maryl. 

ch. 66, 281 

Harding and Prince of Wales, 

Co. 96 Eng. C. L. 183, 381 

Hare v. Groves, 6 Anst. 693, 177 

Harger v, McCuUoch, 2 Denio 119, 324 
Harum and State, 1 Doug. Mich. 

207, 1015 

Harris, ex parte, 8 Eng. L. & E. 

537, 586 

Harris and Tabb, 4 Bibb. 29, z39 

Harris and Tucker, 13 Greorg. 1, 

246, 281 

Harrison and Cowman, 17 Eng. 

L. & E. 290, 586 

Harrison v. Harrison^s ex*or, 2 

Gratt. 16, 596, 605 

Harrison's Justices v. Holland, 3 

Gratt. 247, 646 

Harrison v. Lane. 5 Leigh 514, 35 
Harrison v. Middleton, 11 Gratt. 

548, 6 

Harrison v. Murrell, 5 Monr. 359. 

167, 185 

Harrison v. Sterry, 5 Cranch 289, 432 
Harrison and Williams, 11 I red. 

616, 707 

Hart and- Conkey, 14 New York 

22, 270, 277, 282 

Hart and Rex, 1 Mood. C. C. 486, 962 
Hart V. Windsor, 13 Mees. & 

Welsh. 68, 186 

Harvey v. Branson, 1 Leigh 108, 71 
Harvey v. McLaughlin, 1 Price 

2(U, 571 

Harvey and Preston, 2 Hen. & 

Mun. 55, 259 

Harvey v. Skipwith, 16 Gratt. 

410, 204 

Hatcher and Bourne, 11 B. Monr. 

23 239 

Hatch V. Searles. 31 Eng. L. & E. 

219, 964 

Hatz's ex'ors and Krampt's ex'x, 

52 Penn. 525, 821 

Haven and Griswold, 25 New 

York 596, 389 

Hawes and Starkweather, 10 

Wise. 125, 267 

Hawes and Eastern Counties R. 
, Co., 35 Eng. L. & E. 8, 388 

Hawkins ana Free, 8 Taunt 92, 

4 Eng. C. L. 31, 219 



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XVI 



CASES CITED. 



Hawkins v, Gratherlecole, 31 Eng. 

L. & E. 305, 917 

Btowksland v. Gatchel, Cro. Eliz. 

835, 859 

Hawthorn v. Califf, 2 Wall. U. S. 

10, 308 

Havward and McCracken, 2 How. 

IJ. 8. 61. 269, 305, 307, 309 

Heath v. Van Cott, 9 Wise. 316, 227 
Haverin v. Donnell, 7 Sraeedee & 

Marsh. 244, 227 

Hefernan's adm*r v. Grymes, 2 

Leigh 512, 71 

Heiskell and Jackson, 1 Leigh 

257, 241 

Henderson v. McPike, 35 Mis- 
souri 225, 464 
Hendrick's case, 5 Leigh 707, 

1000, 1005, 1020, 1031 
Henley and Mantz, 2 Hen. & 

Mun. 308, 919, 921 

Henry and Erskine, 9 Leigh 188, 71 
Hepburn, &c., and CJooper, 15 

Gratt. 551, 706, 744 

Hepburn and Dubois, 16 Pet. 

U. S. 1, 123 

Hewett V. Hewett, 2 Eden's ch. 

332 725 

Heyd'on's case, 3 Rep. 7, 917, 919 
Hey ward v. Judd, 4 Minnes. 483, 

267, 281 
Hickman and Commonwealth 2 

Va. Gas 323, 980 

Hicks V. Goode, 12 Leigh 479, 

860, 862 

Hightower and Ivy, 2 Port 308, 327 
Hill anti Alcock, 4 Leigh 622, 28,46 
Hill V. Ely, 5 Sere. & Raw, 363, 218 
Hill & afs. and Marks & als, 15 

Gratt. 400, 428 

Hirsh V. Coates, 86 Eng. C. L. 

757, 244 

Hill & als. tj. Sutherland's ex*or 

1 Wash. 133, 482 

Hitt and Humphrey, 6 Gratt. 509, 

29, 35, 46, 238, 239 
Hoane v. Graham, 3 Camp. 57, 219 
Hoboken Land Co. and Aiurrav's 

lessee, 18 How. U. S. 272, 142, 150 
Hoflfman v. Bechtel, 52 Penn, 

190, 821 

Hoi combe and Moore's ex* or, 3 

Leigh 597, 69 

Holgate and Martin, 1 Law Rep. 

H. L. 175, 44 Law Jour. 782, 

569, 575 
Holland and Harrison, Justices, 

3 Gratt. 247, 646 



Hollingsworth v. City of Detroit, 

3 McLean 472, 828 

Hollo way v. Sherman, 12 Iowa 

282, 266, 270, 281 

Holman and Watkins, 11 B. 

Monr. 96, 690 

Holmes v. Tutton, 88 Eng. C. L. 

65 244 

Holt and Moore, 10 Gratt. 284, 

221, 234, 235 
Holpzaffel and Baker, 4 Taunt. 

45. 176 

Home and Buxton^ 1 Show, 174, 21 
Hoomes and Dickinson, 1 Gratt. 

302, 568, 569 

Hooper and Woodfin, 4 Humph. 

173, 281 

Hooser and Cheany, 9 B. Monr. 

330, 665 

Hopson and The People, 1 Denio 

574, 49 

Hort and Gifiard, 1 Sch. Lef. 386, 

85, 731, 736 
Houghton V. Kendall, 7 Allen, 72, 567 
Houston V. Moore, 5 Wheat, 1 

1001, 1013, 1015, 1024 
Howard and Bugbee, 24 How. U. 

S. 471, 269, 308 

Howell, &c., V. City of Bufialo, 

15 New York 519, 557 

Howell V. Cowles, 6 Gratt. 393, 204 
Howe & al. and Freeman, 24 

How. U. S. 450, 1022 

Howe V. Merrill, 5 Cush. 80, 225 

Howe V. Van Duzer, 21 New 

York 531, 963 

Howes V, Baker, 3 John 506, 210 

Howland and Piatt, 10 Leigh 

507, 71, 75 

Hubbell's adm'r and Rock wood, 

2 Doug. Mich. 197, 267 

Hudson V. Revett, 5 Bing. 368, 

15 Eng. C. L. 467, 860 

Huger V. Huger, 3 Dess. 18, 707 

Hughes and Commercial Bank, 

17 Wend. 94, 548 

Hughes and Smith, 24 Illinois, 

270, 24 

Hughes V. Stickney, 13 Wend. 

280, 259 

Hulme V. Turner, 4 Esp. N. P. 

Cas. 11, 972 

Humphrey v. Dale, 7 El. & Bl. 

260, 90 Eng. C. L., 221 

Humphrey v. Hitt, 6 Gratt, 509 

29, 35, 46, 239, 239 
Hunter's adm'r v. Jett, 4 Rand. 

104, 32 



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ized by Google 



CASES CITED. 



XVll 



Hunter's lessee and Martin, 1 
Wheat. 304, 1024 

Hunter's ex 'or r. Noble, 4 J. J. 
Marsh. 130, 471 

Hunt V. Rousmanier, 8 Wheat. 
174, 26 

Hunt and Stocking, Denio 274, 

264 281 

Hyre and Bryan, 1 Rob. 94, ' 690 

Inhabitants of Plymouth and 

Taylor, &c., 8 Mete. 462, 556 

In re Blakelv & Co., 3 Law Rep. 

ch. Ap. 154, 620 

In re Brown, 2 Story 502, 825 

Irwin r. Bank United States, 1 

Barr. 349, 890 

Isaac and Meyer, 6 Mees. & 

Welsh. 605, 769 

Ithaca and Conrad, 16 New York 

158, 370 

Iverson t?. Shorter, 9 Alab. 713, 

266, 281 
Ives V. Farmer's Bank, 2 Allen, 

236, 956, 958 

Ivy and Hightower, 2 Port. 308, 227 
Izon r. Gorton, 5 Bing. 501, 35 

Eng. C. L. 198. 176 

Jackson v. Cornell, 1 Sanf. ch. 

348, 444 

Jackson and Doe, 1 Barn. & Cres. 

448, 8 Enff. C. L. 126, 541 

Jackson ana Foster, Hobart $2a, 

59a, 25 

Jackson v. Heiskell, 1 Leigh 257, 241 
Jackson i'. Rose, 2 Va. Cas. 34, 

999, 1008, 1029 
Jameson's adm'r v. Dashields, 3 

Gratt. 4, 87 

Jane and Paradine, Alley n, 27, 

176, 182, 189 
Jansen and Fleetwood, 2 Atk. 

467, 454 

Janssen and Chesterfield, 2 Ves. 

147 944 

Jaquish and Allen, 21 Wend. 628, 12 
Jarrett and Crawford, 2 Leigh, 

630, 221 

Jebb and Johnson, 3 Burr, 1772, 258 
Jett and Humphrey's adm'rs, 4 

Rand. IM, 32 

Jewett ex parte, 16 Alab. 409, 707, 707 
Johnes and Lloyd, 9 Ves. 37, 738 
Johnson v. Jebb, 3 Burr. 1772, 258 
Johnson and Polling, 2 Rob. 285, 259 
Jolly and Foster, 1 Cromp. Mees. 
& Ros, 703, 220 

Vol. XVIII — iii 



Jones and Boswell, 1 Wash. 322, 

1043 
Jones r. Carter, 15 Mees. & 

Welsh. 818, 8 

Jones and Clark, 1 Denio. 516, 8 

Jones V. Crittenden, 1 Car. Law 

Rep. 385, 309 

Jones and Pugh's ex'ors 6 Leigh 

299, 78 

Jones and Simpson, 2 Russ. & 

Myl. 365, 706 

Jones V. Smith, 1 Hare 55, 1 

Phil. 244, 372 

Jones V Torrin, 6 Sim. 255, 569 

Jones and Turner, 1 Hurl. & Nor. 

878, 244 

Judd and Heyward, 4 Minnes. 

483, 267, 281 

Jud.son V. Corcoran, 17 How. U. 

S. 612, 69 

Julian and 'Grady, 34 Alab. 

88, 913 

Kate's Case, 17 Gratt. 561 1042 

Keeling and Wilson & McRae, 1 

Wash. 194 498 

Keene v. Beard, 98 Eng. C. L. 

371, 809 

Kellett and Governor, 11 Georg. 

286, 863 

Kelly V. Lank, &c., 7 B. Monr. 

220, 787 

Kemper v. Kemper, 3 Rand. 8, 453 
Kemp V. Squire, 1 Ves. Sr. 205, 402 
Kendall and Houghton, 7 Allen, 

72, 460 

Kerr & als. and Quarles & als, 

14 Gratt. 48, 423 

Ketcham and Thompson, 8 John. 

190, 226 

Kevan v. Branch, 1 Gratt. 274, 

422, 424, 425, 430 
Kev v. Knott & Wife, 9 Gill & 

John. 342, 833 

Kilby V. Haggin, 3 J. J. Marsh. 

208, 239 

I Kingly v. Cousins, 47 Maine 91, 281 
! King ayid Mann, 6 Munf. 428, 389 
i King V. Mawbry, 6 T. T. R. 619, 

1042, 1045 
Kinney r. Beverley, 2 Hen. & 

Mun. 518, 147 

Kinney v. City of Svracuse, 30 

Barb. 349, " 631, 636, 640 

Kinzie and Bronson, 1 How. U. 

S. 311, 264, 2(>5, 2m, 268, 269, 

275, 277, 306, 309 
Kirby, adm'r, &c., and Martin, 



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ized by Google 



XVlll 



CASES CITED. 



adm'r, &c., 11 Gratt. 67, 566, 

570, 571 
Kirkpatrick and United States, 9 

Wheat. 735, 30 

Knight's case, 2 Lord Ray. 1044, 

1 Salk. 329, 
Knoqp and State Bank of Ohio, 

16 How. U. S. 369, 
Knott & wife and Key, 9 Gill & 

John. 342, 
Krampt's ex'x v. Hatz'a ex'ore, 

52 Penn. 525, 



258 
122 
833 
821 



Lackland *8 heirs v. Downing*8 

ex'ors, 11 B. Monr. 32, 
Lackv and Fisher, 6 Blackf. 373, 
Ladd'r. Blunt, 4 Mass. 402, 
La Farge t. Rickert, 5 Wend. 

187, 
Laing and Bowden, 14 Sim. 113, 
Laird and Union Bank, 2 Wheat. 

390, 
Lambert i'. Nanny, 2 Munf 190, 
Lamphear v. Buck, 5 Amer. Law 

Reg. N. S. 224, 
Lane and Harrison, 5 Leigh 514, 
Lane v. Titball, Gilm. 130, 
Langstaffe aud Russell, Doug. 

514, 
Langstaff and Stapleton, 3 Dess. 

22 
Lank &c. and Kellev, 7 B. Monr. 

220, 
Lansing and Beeckman, 3 Wend. 

446, 
Lapsley r. Bmshear, 4 Litt. 34, 

2t)4, 301, 302, 309 

Lardner and Murrray, 2 AVall. 

U. S. 110, 817, 830 

Larne and Shepherd, 6 Munf. 

196, 
Lathrop and United States, 17 

John. 4, 1008, 1009 

Lawrence and American Print 



Leeds v. Cheatham, 1 Sim. 146, 

2 Eng. Ch. 74, 181 

Levisay &c. and Steele, 11 Gratt. 

454 l>89 

Levy V Bank U. S., 1 Binn. 27. 385 
Lewellin and Ayres, 3 Leigh 609, 259 
Lewis & als. v. Caperton's ex*or 

<feal8., 8 Gratt. 148, 425 

Lewis and Tassell & Lee, 1 Ld. 

Ray. 743, 311 

Lijihtfoot V. Cole, 1 Wise. 26, 280 

Lillv and Grayson, 7 B. Monr. 6, 

270, 270 
Lipscomb's admViJ. Davis* adm'r, 

4 Leigh 326, 784 

Littell and Wallis, 11 Com. Bench 

369, 103 Eng. C. L., 221 

Lively and Anderson, 6 Leigh 77, 74, 79 
Livingston and The People, 6 

Wend. 527, 203 

Lloyd V, Johnes, 9 Ves. 37, 730 

Lloyd r. Wyckoff, 6 Halst. 218 28 
Locke V. Postmaster General, 3 
I Mason 446, 30 

574 ! Lockhart v. Lockhart, 3 Jones 
35 I Ea. 205, 619 

705 ' London, Chatham & Dover R. R. 

Co. r. Gardiner, 2 Law. Rep. 

ch. A p. 201, Sm 

I^ng and Bartlett, 2 Alab. 401, 281 
Long's adm*r and City of Rich- 
mond, 17 Gratt. 375, 368 
Long and Clark, 4 Rand. 451, 87, 89 
Longmore v. Elcum, 2 Young & 

Col. N. R. 3a3, 586 

Lord Egrnont and Ware, 31 Eng. 

L. & E. 89, 372 

Lord Ingestre and Bell, 12 

Queen's Bench 317, 64 Eng. C. 

L., 26 

^Q I Ix)rd and Mayor, &c. of New 

York, 17 WVnd. 280, 18 Id. 



60 

281 

20 

226 

588 

376 
70 



955 
707 

787 
28 



126, 

Lorillard and Baker, 4 Comst. 
->57, 



556 



Works, 3 Zabr. 603, 557 . -'^V* . , o w , oc« 2- 

Lawrence County and Woods, 1 i ^ovett r. Adams, 3 Wend ^S6, h6.> 

Bla<.k. 386, 815, 823 I ^^JJJ^g^^^^^^l^^^'.fi^ ^^^ „,^ 

Lawrence's ex 'or and Michic, 5 ^ 3'^^' . „ '^^* '1^» ''^?^1^^ '15 

Hand. 571, 168, 190 I W^ ««,<^ Foreman, 2 Leigh 284 240 

- - - -i,,^, I Loval Companv and French, 5 

^^"^^ Leigh 627, ^ 371 



Lawson and Cumberlege, 1 Cora. 

Bench X. S. 709, 87 Eng. C. L. 811 
Law's ex'ors r. Sutherland & als. 

5 Gratt. 357, 973 

Leake v. Ferguson, 2 Gratt. 419, 30 
I^a's ex 'or v. Edison, 9 Gratt, 

277, 81 

Lee Countv and Thompson, 3 

Wall. U. S. 327, 804, 807, 823 



Lucas and Towner, 13 Gratt. 705, 

210, 218, 219 
Lynch ayid Garland, 1 Rob. 548, 29 
Lynch and Gilliatt, 2 Leigh 5^J5, 174 

Maclean v. Dunn, 4 Bing. 722, 15 
Eng. C. L. 129, 844 



Digiti 



ized by Google 



CA8ES CITED. 



XIX 



Maddox v. Graham &al., 2 Mete. 

Ky. 56, 824 

Malivever v. Spike, 1 Dyer 36b, 656 
Manley v. Boycot, 2 El. & Bl. 

46, 75 Eng. C. L., 251 

Mann and Crutchly, 5 Taunt. 

529, 940, 956 

Mann v. King, 6 Munf. 428 389 

31anns v. Flinn^s adm*r, 10 Leigh 

93, 796 

Mantz F. Henley, 2 Hen. & Mun. 

308, 919, 921 

Marchant and United States, 2 

Va. Cas. 479, 1051 

Marigold and United States, 9 

How. U. S, 560, 1004, 1005, 

1008, 1017, 1018 
Marine Bank v. Fulton Bank, 2 

Wall. U. S. 252, 548 

Marks & als. v. Hill & als., 15 

Gratt. 400 428 

Marquis of Camden and Walker, 

16 Sim. 329, 573 

Marsh v. Martindale, 3 Bos. & 

Pul. 153, 944 

Marshall and Overstreet, 3 Call. 

192, 73, 78 ! 

Marsteller and Few, 2 Cranch 10, 482 i 
Martin v. Commonwealth, 1 I 

Mass. 347, 30 | 

Martindale and Marsh, 3 Bos. & 

Pul. 153, 944 i 

Martin and Doe, 4 T. R. 39, 65, 585 
Martin v. Holgate, 1 Law Rep. 

H. L. 175, 24 Law Jour. Eq. 

789, 569, 575 

Martin v. Hunter's lessee, 1 

Wheat. 304, 1024 

Martin, adm*r, &c., v, Kirby, 

adm'r, &c., 11 Gratt. 67, 566, 

570, 571 
Mason v. Fearson, 9 How. U. S. 

148, 891 

Mason v. Haile, 12 Wheat. 370, 281 
^lason V. Movers, 2 Rob. 606, 

165, 166, 181 
Massey Thomas's case, 2 Va. Cas. 

479, 1051 

ilatter of Salvsburv, 3 John. ch. 

347, ' * 707 

Mattison v. Missouri, 3 Missouri 

421, 1008, 1015 

Mawbry and The King, 6 T. R. 

619, 1042, 1045, 1046 

May V. Boisseau, 8 Leigh 164, 827 
May r. Proby, 3 Bulst 200, 22 

May & als. and Whitely, Mc- 



Conkey & Co., 1 Liv. Law Mag. 
X. S. 442 444 

Maynard and Blow, 2 Leigh 29, 795 
Mayo V. Murchie, 3 Munf. 358, 70 
Mayor and Aldermen of Charles- 
ton and Warren & als. , 2 Gray 
81, 642 

Mayor and Aid. of New York 
aiid State of New York, 3 Duer. 
120, 556 

Mayor, &c., v. Bateman, 3 Hurl. 

6 Nor. 323, .388 
Mayor, &c., of New York and 

Bailey, 3 Hill 531, 370 

Mayor, &c., of New York ?•. 

Lord, 12 Wend. 289, 18 Id. 

126, 556 

Mayor, &c., of New York and 

Stone, &c., 25 Wend. 157, 556 

Mavor, &c., of Washington and 

Clark, 12 Wheat. 40, 370 

McBride and State, 1 Rice S. C. 

400, 1008 

McCaul's case, 1 Va. Cas. 271, 

1036, 1038 
McClung V. Beirne, 10 Leigh 394, 795 
McCord V, Ford, 3 Monr. 166, 471 
McCormick v. Rousck, 3 Amer. 

Law Reg. N. S. 93, 309 

McCoy V. County of Washington, 

7 Amer. Law Reg. 193, 824 
McCracken v. Hayward, 1 How. 

U. S. 61, 269, 283, 285, 288 

McCuUoch V. State of Maryland, 

4 Wheat. 316, 156 

McCullough V. Harger, 2 Denio 

119, 324 

McCullough & als. v. Somerville, 

8 Leigh 415, 431 , 432, 433, 436, 
436, 437, 440, 443, 444, 446, 448, 

449, 450, 451 
McDowell's ex' or t?. Crawford, 11 

Gratt. 377, 853 

McEachon r. Randies, 34 Barb. 

301, 846 

McFarland and Galbraith, 3 

Cald. 267 689 

McGahey and Alston, 2 Mees. & 

Welsh. 206, 680 

McKenney's ex'or v. Waller, 1 

Leigh 434, 28, 46 

McKeyr. Garth, 2 Rob. 33, 31 

McLaughlin and Harvey 1 Price 

264, 571 

McLaurin v. Salmons, 11 B. 

Monr. 96, 690 

McMahon v. Fawcett, 2 Rand. 

514, 34 



Digiti 



ized by Google 



XX 



CASES CITED. 



McMahon v. Tyson, 23 Georg. 43, 776 
McMasters v. McMasters* ex' ore, 

10 Gratt. 275, 618 

McMillan anrf Fireman's Ins. Co., 

29 Alab. 147, 752, 755 

McXew t'. Smith, 5 Gratt. 84, 795 
McPike and Henderson, 35 Mis- 
souri 225, 464 
Mebin and Fitch burj; Cotton 

Manufac. Co., 15 Maas. 268, 172 
Mechanics' Bank v. New York 

& New Haven R. R. Co., 3 

Kern. 599, 389 

Mede v. Hand, 5 Amer. Law Reg. 

82, 308 

Mee and Badham, 1 Rus. & Myl. 

631, 586 

Mehelin v. Bamet, Coxe 86, 219 

Mendum's case, 6 Rand. 704. 1040 
Mercer countv v. Hacket, 1 Wall. 

U. S. 83, " 804, 817 

Mercer and Dike, 2 Show. 394, 2^) 
Merrick's trusts in re, 1 Law 

Rep. Eq. 552, 569, 574 

Merrill and Howe, 5 Cush. 80, 225 
Merritt r. City Bank of New 

York, 1 Green 131, 924 

Merritt v. Todd, 23 New York 

20, 834 

Messenger v. Catskill Bank, 9 

Cow. 37, 25 

Meyer v. Citv of Muscatine, 1 

Wall. U. 8. '83, 817 

Mever v. Isaac, 6 Mees. & Welsh. 

.605, 769 

Michie v. Lawrences' ex 'or, 5 

Rand. 571, 168, 190 

Mich. E. & N. Ind. R. R. Co. and 

Bissell, 22 New York 258, mS 

Middleton and Harrison, 11 

Gratt. 548, 6 

Mildmay v. Smith, 2 Wms. Saund. 

344, 22 

Miller v. Argyle's ex'or, 5 Leigh 

460, 705 

Miller aiid Davis, 14 Gratt. 1 

808, 831 
Miller & Mayhew and Fant, 17 

Gratt. 187, 209 

Miller & Mayhew and Fant, 17 

Gratt. 47, 9f)3 

Miller v. Miller, 1 Hodges 187, 679 
Miller, &c., and Ralston, &c., 3 

Rand. 44, 704 

Millett and Parker, 2 Mete. Ky. 

608, 865, 867 

Milligan ex parte, 4 Wall. U. S. 

120, 151 



Million V. Commonwealth, 1 B. 

. Mon. 310, 239 

Mills V. Central Savings Bank, 

16 Gratt. 94, 33 

Mills V. Town of Jefferson, 20 

Wise. 50, 826 

Minet and Gibson, 1 H. Bl. 569, 

939, 958 
Minne and Gedge, 2 Bulst. 61, 556 
Missouri and Mattison, 3 Mis 

souri 421, 1008, 1015 

Mitchell V. Baratta, &c., 17 Gratt. 

465, 929 

Mitchell and Brooks, 9 Mees. & 

Welsh. 15, 813 

Monk V. Cooper, 2 Str. 763, 2 Ld. 

Ray, 1477, 176 

Monroe and Gray, 1 McLean 528, 281 
Montague v. Perkins, 22 Eng. L. 

& E. 516, 963 

Monteith and Exchange Bank, 

26 New York 505, 389 

Moodalv r. East India Company, 

1 Brol C. (;. 469, 369 

Moody and Cunningham, 1 Ves. 

174, 585 

Moore's ex'or r. Aylett's ex'or, 1 

Hen. & Mun. 29, 429 

Moore and Barry, 3 New Hamp. 

132, 227 

Moore and Chadwnck, 3 Watts & 

Serg. 49, 267. 267, 276, 309 

Moore and Crooks. 1 Sandf. Supr. 

Ct. 297, 846 

Moore v. Goold, 1 Kent. 281, 305 

Moore's ex'or v. Holcombe, 3 

Leigh 597, 69 

Moore v. Holt, 10 Gratt. 284, 

221, 234, 235 
Moore and Houston, 5 Wheat. 1, 

1001, 1013, 1015, 1024 
Moore v. People of Illinois, 14 
How. U. S. 13, 1017, 1031 

I Moore and Taylor, 2 Rand. 563, 81 
j Moran v. Commissioners of Mi- 
ami County, 2 Black. U. S. 722, 804 
j Morris and Crawford, 5 Gratt. 90, 259 

Morris and Gaskell, 7 Watts & 
I Serg. 22, 846 

, Morris' adm'r v. Morris' adm'r, 
I 4 Gratt. 293, 441, 450 

' Morton and Rice, 19 Missouri 
1 263, 27 

I IMoseley v. Cocke, 7 Leigh 224, 87 
i Moses Taylor, 4 AVall. U. S. 411, 
I 1012, 1024 

' Moss V. Norvell, 3Munf. 170, 298 
1 Motter V. Ward, 2 Rob. 536, 25 



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ized by Google 



CASES CITED. 



XXI 



Mous3*8 case, 13 Rep. 63, 556 

Mover and Mason, 2 Rob. 606, 

165, 166, 181 
Muire v. Falconer, 10 Gratt. 12, 259 
Murchie and Mayo, 3 Munf. 358, 392 
Murray's case, 2 Va. Cas. 504, 1038 
Murray and Chinn, 4 Gratt. 348, 85 
Murray r. Earl of Stair, 2 Barn. 

& Cres. 82, 9 Ens. C. L. 33, 859 
Murray's lessee v. Hoboken Land, 

&c.. Company, 18 How. U. S. 

272, * 142, 150 

Murray r. Lardner, 2 Wall. U. S. 

110,' 817,830 

Murray, <&c., v. Pennington, 3 

Gratt, 91, 775 

Murrili and Harrison, 5 Monr. 

.359, 167, 185 

MurrUl & al. r. Neill & al., 8 

How. V. S. 414, 450 

Mussey r. Beecher, 3 Cush. 511, 389 

Nanny and Lambert, 2 Munf. 196, 70 
Nash V. Towne, 5 AVall. U. 8. 689, 221 
National Bank and Pollock, 3 

Seld. 274, 385 

Neame and Hammond, 1 Swanst. 

35, 602, 603 

Neil & al. and Murrili & al., 8 

How. U. S. 414, 450 

Nelson and Baugher, 9 Gill. 299, 

263, 281 
Nelson v. Cowins?, 6 Hill 336, 965 
Newberry and Bronson, 2 Doug. 

Mich. 38, 267, 281 

Newcomb v, Drummond, 4 Leigh 

57, 69, 682 

Newell V. The Commonwealth, 2 

Wash. 88, 980 

Newkirk v. Chapron, 17 Illinois 

344, 266, 280 

Newman r. Anderson, 2 New 
Rep. 224, 172 

Newman v. Chapman, 2 Rand. 
93, 70, 87 

Newton v. Tibbats, 2 Engl. 190, 

267, 281 

Newton v. Wilson, 3 Hen. & 
Mun. 470, 142. 166, 168, 183 

New York & New Haven R. R. 
Co. and Bridgport Bank, 30 
Conn, 231, 385 

New York & New Haven R. R. 
Co. 1'. Schuyler & als., 34 New 
York 30, 385, 388, 389 

Nicholas and Smith, 8 Leigh 330, 767 

Nicholl and United States, 12 
Wheat. 505, 30 



Nicholson v. Hancock, 4 Hen. & 

Mun. 491, 775 

Nicholson v. Revill, 4 Ad. & Ell. 

675, 31 Eng. C. L. 166, 26 

Noble and Huston's ex 'or, 4 J. J. 

Marsh. 130, 471 

Noble's adm'r and Robinson, 8 

Pet. U. S. 181, 472 

Norris v. Crummey, 2 Rand. 327, 

2^), 35 
North Pa. R R. Co. v. Adams, 

54, Peun. 94, 828 

North River Bank v. Ay mar, 3 

Hill N. Y. 262, 378 

North V. Wakefield, 13 Queen's 

Bench 536, 66 Eng. O. L. 535, 26 
Norvell and Moss, 3 Munf. 170, 298 
Nutter, &c , v. Russell, &c., 3 

Mete. 163, 717, 717 

Ogden V. Saunders, 12 Wheat. 

256, 290, 291, 294, 299, 311 

O'Grady v, Julian, 34 Alab. 88, 913 
Old Colony & Fall River R. R. 

Co. and Durfee, 5 Allen 230, 321 
Olintrer i\ Shepherd, 12 Gratt. 

462, 6 

Opie a/irf Brewer & ux., 1 Call. 

212, 618 

Ostraiider v. Walter, 2 Hill N. Y. 

320, 49 

Overman and Parker, 18 How U. 

S. 137, 891, 892 

Overstreet r. Marshall, 3 Call. 

192, 73, 78 

Overton and Ross, 3 Call. 268, 

167, 177 
Owen and Thorpe, 2 Hare 607, 

586, 588, 600 
Owings V. Speed, 5 Wheat. 440, 268 

Packham ?'. Gresrory, 4 Hare 396, 566 
Palmer and Butler, 1 Hill N. Y. 

324, 264, 270 

Palmer v. Edwards, 1 Doug. 187 

note, 167 

Palmer and Smith, 7 Hare 225, 

566, 568, 571, 573 
Paradine r. Janev, Alleyn 27, 

* 176, 182, 189 
Parker v. Bradley, 2 Hill N. Y. 

584 861 

Parker and Millett, 2 Mete. Ky. 

608, 865, 867 

Parker v. Overman, 18 How. U. 

S. 137, 891, 892 

Parker and Sheboygan County, 3 

Wall U. S. 93, 805 



Digiti 



ized by Google 



XXll 



CASES CITED. 



Park V, Thomas, 13 Smeedes & 

Marsh. 11, 227 

Parsons and Bushnell, Prec. ch. 

218, 603 

Partington and Andrews, 2 Cox 

227, 602, 603 

Patterson and Crawford* s ex' or, 

11 Gratt. 364, 85 

Patton and Bank of the United 

States, 5 How. Miss. 200, 787 

Pattons and Tennant*s heirs, 6 

Leigh 196, 71, 795 

Pawling V. United States, 4 

Cranch. 218, 865, 866 

Pavne v. Drew, 4 East 523, 

239, 239, 243 

Pearpoint v. Graham, 4 Wash. C. 

0. 232, 432 

Peas and Commonwealth, 2 Gratt. 

629, 986 

Peck ham and Willis, 1 Brod. & 

Bing. 515, 24 

Peck and State, 53 Maine 284, 865 
Peck r. Tiffany, 2 Comst. 451, 49, 50 
Pelham v. Gregory, 1 Eden 520, 730 
Pendell and Thompson, 12 Leigh 

591, 180 

Pendleton and Rit;ketts, 14 

Maryl. 320, 221 

Pennington and Murray, &c., 3 

Gratt. 91, 775 

Penrose and Reed, 2 Grant. Pa. 

472, 277, 280 

People V. Bostwick, 32 New York 

445, 860, 865 

People and Carcemi, 18 New York 

m, 1041 

People V. Hopson, 1 Denio 574, 49 
People v. Livingston, 6 Wend. 

527, 263 

People of Illinois and Moore, 14 

How. U. S. 13, 1017, 1031 

People and Wynehamer, 13 New 

York 384, 557 

Perkins and Montague, 22 Eng. 

L. & E. 516, 963 

Peshine v. Shepperson, 17 Gratt. 

472, 853, 870 

Petti bone and Freeborn, 5 

Minnes. 277, 281 

Peyton and Abrahams, 15 Gratt. 

470, 122 

Peyton and Burroughs, 15 Gratt. 

470, 122 

Phelps V. Chesson, 12 Ired. Law 

194, 8 

Phillips and Davis & als., 7 Monr. 

632, 471 



Phillips and Doe, 2 Bing. 13, 9 

Eng. C. L. 296. 11 

Phillips and Taylor, 2 Ves. 13, 706 
Phippen v. Durham & als., 8 

Gratt 457, 422, 423, 430, 439, 449 
Phoenix Bank and Downes, 6 Hill 

297, 548 

Phoenix Bank and Fulton, 1 Hall 

362 833 

Pickard v. Sears, 6 Ad. & Ell. 

469, 33 Eng. C. L. 115, 386 

Pierce v. Trigg, 10 Leigh 406, 173 
Pike V. Street, 1 Mood. & Malk. 

273, 22 Eng. C. L. 299, 220 
Pilkinton and AVilson, 11 Jurist 

537, 568 

Pindar v. Barlow, 31 Verm. 529, 965 
Pinninger and Gundry, 14 Beav. 

9 Eng. L. & E. 148, 573 

Pitman's case, 1 Brev. 32, 1000 

Pitman v. Breckenridge, 3 Gratt. 

127, 259 

Place V. City of Dayton, 4 Ohio 

N. S. 80, 370 

Planters Bank v. Sharp & als., 6 

How. U. S. 301, 294, 308 

Piatt r. Howh.nd, 10 Leigh 507, 71, 75 
Pleasants v. Bibb, 1 Wash. 8, 498 
Pluck V. Digges, 5 Bligh N. S. 31, 167 
Pole and Wookey, 6 Eng. C. L. 

323, 958, 960 

Poling V. Johnson, 2 Rob. 285, 259 
Pollock V. National Bank, 3 Seld. 

274, 385 
Polly, Woods & Co. and Balti- 
more & Ohio R. R. Co., 14 
Gratt, 448, 852, 870 

Pool V. Young, 7 Monr. 588, 301 

Pope r. Chaffin, Amer. LawReg» 

April 1868, 578, 689 

Porter and Watts & wife, 77 Eng. 

C. L. 743, 244 

Postmaster General and Locke, 3 

Mason 446, 30 

Powell V. Waters, 8 Cow. 669, 949 
Prentis and Baker, 6 Mass. 430, 218 
Prescott Bank v. Coverly, 7 Gray 

217, 225 

Preston v. Harvey, 2 Hen. & Mun. 

55, 259 

Preston v. Preston & als., 4 Gratt. 

88, 34 

Price V. Fooks, 2 Beav. 430, 586 

Price V. Strange, 6 Madd. 159, 567 
Pride and Usher's heirs, 15 Gratt. 

190, 80 

Prigg V. Commonwealth of Pa., 

16 Pet. U. S. 539, 1001 



Digiti 



ized by Google 



CASES CITED. 



xxm 



Prince of Wales Co. v. Harding, 
96 Eng. C. L. 183, 381 

Proby and May, 3 Bulst. 200, 22 

Pujrh's ex 'ore v. Jones, 6 Leigh 
299, 78 

Pulliam V. Aler, I5 Gratt. 54, 

259, 905, 924 

Puryear v. Taylor, 12 Gratt. 401, 

241,244 

Putnam v. Sullivan & al., 4Mass. 
45, 963 

Quarles & als. v. Kerr & als., 14 
Gratt. 48, 423 

Queen r. Gomperty & als., 9 
Queen's Bench 824, 58 Eng. C. 
L. 1044 

Quiiter and Brown, Amb. 621, 176 

Rae V. Halbert, &c., 17 Illinois, 

572, 776 

Raikes v. Ward, 1 Hare 445, 602 

Balston, <fec., v. Miller, &c., 3 

Rand. 44, 704 

Randall and Rex, Russ. & Ry. C. 

C. 195, 958 

Randolph's adm'r v. Randolph, 

3 Rand. 490, 29 

Ranney and Taylor, 4 Hill N. Y. 

329, 49, 51 

Rasnick*8 case, 2 Va. Gas. 356, 999 
Rathbone i*. Bradford, 1 Alab. 

312, 281 

Read & Co. and Stainback, 11 

Gratt. 281, 389 

Redford v. Winston, 3 Rand. 148, 

920, 921, 922, 929 
Reed and Penrose, 2 Grant. Pa. 

472, 277, 280 

Rees V. Conogocheague Bank, 5 

Rand, 326, 959 

Regina v. Sewel alias Beans, 7 

Mod. 118, 972 

Reid r. Bibb, 5 Alab. 281, 865 

Reigart v. White, 52 Penn. 438, 821 
Renner w. Bank of Columbia, 9 

Wheat 591, 228 

Revett and Hudson, 5 Bing. 368, 

15 Eng. C. L. 467, 860 

Revill and Nicholson, 4 Ad. & 

Ell. 675, 31 Eng. C. L. 166, 26 

Rex v. Hart, 1 Mood. C. C. 486, 962 
Rex V. Mawbry, 6 T. R. 619, 

1042, 1045, 1046 
Rex r. Randall, Russ. & Ry. C. 

C. 195, 958 

Reynolds v. Bank of Virginia, 6 

GraU. 174, 578 



Reynolds and Williams, 10 

Maryl. 57, 966 

Rey V Simpson, 22 How. U. 8. 

341 226 

Rice and Baird, 1 Call 18, 52 

Rice V, Morton, 19 Missouri 263, 27 
Richardson and Downes, 7 Eng. 

C. L. 227, 949 

Rickert and La Farge, 5 Wend. 

187, 226 

Ricketts v. Pendleton, 14 Maryl. 

320 221 

Right V. Beard, 13 East 210, 541 

Rives and Garland, 4 Rand. 309, 454 
Roberts v. Davey, 4 Barn. & Ad. 

664, 24 Eng. C. L. 136, 8 

Roberts r. Tremayne, Cro. Jac. 

507, 767 

Robertson v. Smith, 13 John. 459, 26 
Robertson and Watson, 4 Leigh 

236, 322 

Robinson and Noble's adm'r, 8 

Pet. U. 8. 181, 472 

Rockwell V. Hubbell's adm'r, 2 

Doug. Mich. 197, 267 

Rodes V. Bronson, 34 New York 

649, 477 

Rogere V. Dill, 6 Hill 415, 707 

Root V. Wagner, 3 Tiffany 1, 17, 23 
Rose V. City of Bridgport, 17 

Conn. 243, 824 

Rose and Jackson, 2 Va. Cas. 34, 

999, 1008, 1029 
Rosenbaums v. Weeden, Johnson 

&Co., 18 Gratt. 785. 870 

Ross and Grimball, Cnarlt. 175, 

267, 281 
Ross V. Overton, 3 Call 309, 167, 177 
Roth V. Wells, 29 New York 471, 

19,28 

Rousck and McCormick, 3 Amer. 

Law Reg. N. S. 93, 309 

Rouse V. State, 4 Georg. 136, 1000, 1015 
Rousmanier and Hunt, 8 Wheat. 

174, 26 

Rowlett V. Rowlett's ex' or, 5 

Leigh 20, 566 

Royal & British Bank v. Tur- 

qiiand, 85 Eng. C. L. 248, 88, 

Id. 327, 380, 382, 384 

Rucker and Dearing's adm'x, 18 

Gratt. 426, 753 

Russell V. Langstaflfe, Doug. 514, 955 
Russell, &c. and Nutter, &c., 3 

Mete, 163, 717, 717 

Sabin v. Bank of Wookstock, 21 
Verm. 353, 379 



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XXIV 



CASES CITED. 



Sadler v. Whittington, not re- 
ported, 308 
Salmons and McLawrin, 11 B. 

Monr. 96, 690 

Sands, &c. v, Taylor, &c., 5 John. 

395, 792, 793 

Sapsford v. Fletcher, 4 T. R. 511, 775 
Saltpetre case, 12 Rep. 12, 556 

Saunders and Ogden, 12 Wheat. 

256, 290, 291, 294, 299, 311 

Sawyer v. Corse, 17 Gratt. 230, 370 
Schench and Supervisors, 5 Wall. 

U. S., 772, 383, 767 

School Directors, &c. and Green, 

51 Penn. 219, 861 

School District and Waller, 22 

Conn. 326, 671 

Schuyler and Bruce, 4 Gilman 

221, 281 

Schuyler & als. and New York 

and New Haven R. R. Co., 34 

New York 30, 388, 389 

Schuylkill Bank and Bank of 

Kentucky, 1 Par. Sel. Cas. 180, 

379, 385 
Seaman & als. and Dance & als., 

11 Gratt. 780, 422, 439 

Searles and Hatch, 31 Eng. L. & 

E. 219, 964 

Sears and Billups, 5 Gratt. 31, 452 
Sears and Pickard, 4 Ad. & Ell. 

469, 33 Eng. C. L. 115, 386 

Sears v. Wingate, 3 Allen 303, 389 

Seay v. Bank of Tennessee, 3 

Sneed 358, 940, 959 

Self andTurberville, 2 Wash. 71, 

4 Call 580, 775 

Serrell v. Derbyshire, &c. R. R. 

Co., 9 Com. Bench 811, 67 

Eng. C. L., 834 

SewaU V. Boston Water Power 

Co., 4 Allen 277, 385 

Sewell alias Beans and Regina, 7 

Mod. 118, 972 

Sexton's lessee and Wheaton, 4 

Wheat. 503, 255 

Sharp and Haney. 1 Dana 442, 1008 
Sharp & al. and Wanters Bank, 6 

How. U. S. 301, 294, 308 

Sheboygan county v. Barker, 3 

Wall. U. S. 93, 805 

Shepherd v. Larue, 6 Munf. 529, 76 
Shepherd and dinger, 12 Gratt. 

462, 6 

Shepperson and Peshine, 17 

Gratt. 472, 852, 870 

Sherman and Holloway, 12 Iowa 

282, 266, 277, 281 



Shei*man v. Smith, 1 Black U. S. 

587, 321 

Shorter and Iverson, 9 Alab. 713, 

266, 281 
Shreeve and Black, 2 Beas. 455, 864 
Simmons and Bean & als., 9 

Gratt. 389, 894 

Simpson v. Jones, 2 Rus. & Myl. 

365, 706 

Simpson and Rey, 22 How. U. S. 

341, 326 

Sketoe v. Ellis, 14 Illinois 75, 776 
Skipwith'sex'or v. Cunningham, 

8 Leigh 271, 422, 423 

Skipwith and Harvey, 10 Gratt. 

410, 204 

Skipwith V. Strother. 3 Rand. 214, 454 
Slater ex parte, 6 Ves. 146, 26 

Slate River Co. and Crenshaw, 6 

Rand. 645, MO 

Slee and Dunn, 1 J. B. Moore 2, 33 
Smith and Bank of Albion, 27 

Barb. 489, 227, 228 

Smith V. Carter, 3 Rand. 167, 682 
Smith V. Hughes, 24 Illinois 270, 24 
Smith and Jones, 1 Hare 55, 1 

Phil. 244 372 

Smith and McNew, 5 Gratt. 84, 795 
Smith and Mildmay, 2 Wms. 

Saund. 344, 33 

Smith V. Nicholas, 8 Leigh 330, 767 
Smith V. Palmer, 7 Hare 225, 

566, 568, 571, 573 
Smith and Robertson, 18 John 

459. 26 

Smith and Sherman, 1 Black U. 

S. 587, 321 

Smith and Stone <& Ware, 6 

Munf. 541, 972 

Smith & ux. V. South Royal ton 

Bank, 32 Verm. 341, * 864 

Smith V. Walker, 1 Call 39, 480, 751 
Snowdeh v. Dales, 6 Sim. 524, 586 
Snyder v. Van Ransalaer, 3 Kern. 

299, 280 

Somerville and McCullough <& 

als., 8 Leigh 415, 

431, 432, 433, 436, 437, 438, 441 
443. 444, 446, 448, 449 
Somerville v. Wimbish, 7 Gratt. 

205, 80 

Soome V. Gleen, Sid. 27, • 768 

South Royalton Bank and Smith 

& ux., 32 Verm. 341, 864 

Spangler v. Davy, 15 Gratt. 381, 

906, 911 
Speed and Owings, 5 Wheat. 420, 268 
Spencer's case, 5 Rep. 16, 172 



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CASES CITED. 



XXV 



Spicer and Green, 1 Russ. & Myl. 

397, 586 

Spier V. Gilmore, 1 Comst. 321, 227 
Spike and Maliverer, 1 Dyer 36b, 556 
Spindle's adm*r and Brcxiken- 

brough*8 ex'ors, 17 Gratt. 21, 945 
Spindle owd Taylor's adm'r, 2 

Gratt. 44, 89 

Springs and Williams, 7 Ired. 

Law 384 873 

Squire and Kemp, 1 Ves. sr. 205, 402 
Stagg t?. Elliott, 104 Eng. C. L. 

373, 389 

Stainback v. Bank of Virginia, 11 

Gratt. 260, 389 

Stainback v. Read & Co., 11 

Gratt. 281, 389 

Staley and Erskine, 12 Leigh 406, 235 
Stanley v. Stanley, 26 Maine 191, 321 
StanslJerrv and United States, 1 

Pet. U. S. 573, 24, 30 

Stapleton t?. Langstaff, 3 Dess. 22, 707 
Starke's adm'x, &c. and Talley, 

&€., 6 Gratt. 339, 716 

Starkweather v. Hawes, 10 Wise. 

125, 267 

State Bank r, Evans, 3 Green 155, 865 

State Bank of Ohio v. Knoop, 16 

How. U. S. 369, 160 

State V. Carew, 13 Rich. 498, 308 

State V. Harlan, 1 Doug. Mich. 

207, 1015 

State V. McBride, 1 Rice S. C. 

400, 1008 

State of Arkansas and Curran, 

15 How. U. S. 304, 290, 308 

State of Maryland and McCul- 

lock, 4 Wheat. 316, 156 

State of Missouri and Cummings, 

4 Wall. U. S. 277, 127, 153, 153 

State of New York v. Mayor & 

Aid. of New York, 3 Duer 110, 558 
State of Ohio and Fox, 5 How. 

U. S. 410, 1001, 1004, 1005, 

1008, 1016, 1017, 1018, 1031 
State r. Peck, 53 Maine 284, 865 

State and Rouse, 4 Georg. 136, 

1000, 1015 
State V, Tuff, 2 Bailey S. C. 44, 1031 
State r. Well?, 2 Hill S. C. fi87, 1015 
State V. Boyd, 6 Leigh 541, 27, 33, 52 
Steele r. Jjcvisay, <xc., 11 Gratt. 

4M, 510 

Sterling and Boehm, 7 T. R. 423, 

S'"J2 833 
Sterne and Barker, 9 Exch. C»84, ' 963 
»Stt*rrv and Harrison, 5 Cranch. 

289', 432 

Vol. XVIII — iv 



Stevenson v. Evans, 10 Ohio 307, 570 
Stickney and Hughes, 13 Wend. 

280, 259 

Stinson, &c., v. Day, Ac, 1 Rob. 

435, 588, 605 

Stirling v. Forrester, 3 Bligh P. 

Caa. 575, 33 

Stockholders of Cochituate Bank 

V. Colt & als., 1 Gray 382, 552 

Stocking V. Hunt, 3 Denio 274, 

264, 281 
Stone V, Bassett, 4 Minnes. 298, 

267, 281 
Stone, &c.,u. Mayor, Ac, of New 

York, 26 Wend. 157. 556 

Stone & Ware v. Smith, 6 Munf. 

541, 972- 

Stonington and Goshen, 4 Conn. 

209, 263 

Strange and Price, 6 Madd. 159, 567 
Street and Pike, 1 Mood. & Malk. 

226, 22 Eng. C. L. 299, 220 

Strother and Skipwith, 3 Rand. 

214, 454 

Stubbs V. Goodall, 4 Georg. 106, 228 
Sturges V. Crowningshield, 4 

Wheat. 122, 281, 290, 291, 963, 1001 
Suadlin and Bower, 1 Atk. 294 25 
Sullivan & al. and Putnam, 4 

Mass. 45, 963 

Supervisors v. Schenck, 5 Wall. 

U. S. 772, 383, 817 

Supervisors v. United States, 4 

Wall. U. 8. 435, 893 

Sutherland's ex'or and Hite & 

als. 1 Wash. 133, 482 

Sutherland's & als. and Law's 

ex'ors, 5 Gratt. 357, 973 

Sutter and United States, 21 How. 
U. S. 170, 678 

Tabb V. Harris, 4 Bibb 29, 239 

Talley &c. v. Starke's adm'r &c. 
6 Gratt. :W9, 716 

Tassell & Lee v. Lewis, 1 Ld. 
Kay. 743, 811 

Tate V. Berry, 2 Bailey S. C, 980 

Tavernor's Case, 1 Dyer 5, 8b, 

182, 183 

Taylor v. Beverly. 1 Call 108, 567 

Taylor r. Bruce, Gilm. 88, 944, 

947, 953, 955 

Taylor & al. v. Carryl, 20 How. 
U. S. 58.3, 1022 

Taylor's adm'rs v. Chowning, 3 
Leigh 654, 429 

Taylor &c. v. Inhabitants of Ply- 
mouth, H Mete. 462, 556 



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XXVI 



CASES CITED. 



Taylor v. Moore, 2 Rand. 563, 81 

Taylor v. Phillips, 2 Ver. 23, 706 

Taylor and Puryear, 12 Gratt. 

401 241 244 

Taylort;.Ranney,4HillN.Y.619', 49 
Taylor Ac. and Sands &c., 5 

John. 395, 845 

Taylor's adm'r v. Spindle, 2 

Gratt. 44, 89 

Temple and Chandler, 4 Gush. 

285, 861 

Tennent's heirs v. Pattons, 6 

Leigh 196, 71, 795 

Thayer v. Boston, 19 Pick. 511, 370 
Thomas' adm*r and Cox, 9 Gratt. 

312, 863 

Thomas and Park, 13 Smeedes 

and Marsh. 244, 227 

Thompson's Case, 8 Gratt. 637, 1051 
Thompson v. Ketcham, 8 John. 

190, 226 

Thompson v, Pendell, 12 Leigh 

591, 180 

Thompson and United States, 

Gilp. 614, 24 

Thomson v. Lee County, 3 Wall. 

U. S. 327, 804, 817, 823 

Thoroughgood's Case, 9 Rep. 137, 859 
Thorpe v. Owen, 2 Hare 607, 

586, 588, 600 
Tibbats and Newton, 2 Eng. 150, 

267, 281 
TiflFany and Peck, 2 Comst. 451, 49, 51 

Tinder and Guerrant, Gilm. 36, 1043 
Titball and Lane, Gilm. 130, 705 

Todd and Merritt, 23 New York 

28, 834 

Torin and Jones. 6 Sim. 255, 569 

Towne and Nash, 5 Wall. U. S. 

689, 221 

Towner v. Lucas, 13 Gratt. 705, 

210, 218. 219 
Town of Jefferson and Mills, 20 

Wise. 50, 828 

Townsend and Cowle, 31 Alab. 

133, 220 

Townsend v. Townsend, Peck 1, 309 
Treraayne and Roberts, Cro. Jas. 

507, 767 

Trigg and Pierce, 10 Leigh 406, 707 
Trimble v. Commonwealth, 2 Va. 

Cas. 143, 991 

Tucker v. Billing, 2 Jurist N. S. 

483, 570 

Tucker v. Harris, 13 Georg. 1 

263, 281 
Tuff and State, 2 Bailey S. C. 

44, 1031 



Tuberville v. Self, 2 Wash. 71, 4 

Call 580, 775 

Turner and Hulme, 4 Esp. Ni. 

pri. cas. 11, 972 

Turner in re, 5 Amer. Law Reg. 

N. S. 235, 573 

Turner r. Jones, 1 Hurl. & Nor. 

878, 244 

Turquand and Royal British 

Bank, 85 Eng. C. L. 248, 88 

Idem 327, 380, 382 

Tutt's Case, 2 Bailey 44 1000, 1015 
Tutton and Holmes, 85 Eng. C. 

L. 65, 244 

Twogood ex parte, 19 Ves. 229, 218 
Tyson and McMahon, 23 Georg. 

43, 776 

Underwood and Gilliam, 3 Jones 

Eq. 100 619 

Union Bank v. Laird, 2 Wheat. 

390, 376 

United States Bank v. Bank of 

Georgia, 10 Wheat. 333, 385 

United States v. Amy, Quar. 

Law Jour. July 1859, 163, 1007, 
1019, 1031 
United States v. Dashiel, 3 Wall. 

U. S. 688, 49, 51 

United States v. Freeman, 3 How. 

U. S. 556, 917 

United States v. Kirkpatrick, 9 

Wheat. 735, 30 

United States v. Lathrop, 17 

John. 4 1008, 1009 

United States v. Marchant, 12 

Wheat. 480, 1046 

United States v. Marigold, 9 

How. U. S. 560, lOOi, 1005, 

1008, 1017, 1018 
United States v. Nichols, 12 

Wheat. 505, 30 

United States and Pawling, 4 

Cranch 218, 865, 866 

United States v. Stansberry, 1 

Pet. U. S. 573, 24, 30 

United States and Supervisors, 4 

Wall. U. S. 435, 893 

United States v. Sutter, 21 How. 

U. S. 170, 678 

United States f. Thompson, Gilp. 

614, 24 

United States v. Watkins, 4 

Cranch C. C. 270, 24 

Usher's Heirs v. Pride, 15 (Jratt. 

190, 80 

Vaiden's Case, 12 Gratt. 717, 1042 



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CASES CITED. 



XXVll 



Vanbokkelen and Ward, 2 Paige 

289 88 

Van Cott and Heath, 9 Wise. 516. 227 
Van Duzer v. Howe, 21 New 

York, 531, 963 

Vanhook v. Barnett, 4 Dess 268, 862 
Vanmeter and Fisher, 9 Leigh 18, 

31, 53 
Van Ransalaer r. Snyder, 3 Kern. 

299 280 

Vardy and Bull, 1 Ves. Jr. 271. 585 
Vass V. Ward, 6 Leigh 135, 

23, 29, 32, 35, 52, 55 
Verm. & Mass. R. R. Co. and 

White, 21 How. U. S. 575, 817, 967 
Viccars and Booth, 1 Call 6, 568 

Vint ane/ Erwin, 6 Munf. 267, 402, 408 
Vowles and Bogle <& als., 1 Call 

244. 480, 483 

Wade and Bainhridge, 16 Queen *s 

Bench 89, 71 Eng. C. L., 221 

Waggener v. Dyer, 11 Leigh 384, 33 

Wagner and Root, 3 Tiffany 417, 23 
Wakefield and North, 13 Queen's 

Bi^ch 536, 66 Eng. C. L., 26 

Wales V, Webb, 5 Conn. 154, 973 

AValker v. Bank of Washington, 

3 How. U. S. 62, 970 

Walker r. Marquis of Camden, 16 

Sim. 329, 573 

Walker and Smith, 1 Call. 39, 

490, 751 
Wallace & wife v. Dold, 3 Leigh 

258, 588, 605 

Waller and McKinney, 1 Leigh, 

434 28 46 

WalleV and School District, 22 ' 

Conn. 326, 681 

Wallis V. Littell, II Com» Bench 

3*39, 103 Eng. C. L., 221 

Walter and Ostrander, 2 Hill N. 

Y. 329 49 

Ward and Archer, 9 Gratt. 622, 258 
Ward and Cheetham, 1 Bos. & 

Pul. 630, 25 

Ward V. Motter, 2 Rob. 536, 26 

Ward and Raikes, 1 Hare 445, 602 
Ward V. Van Bokkelen, 2 Paige 

289 88 

Ward V. Vass, 6 Leigh 135, 

23, 29, 32. 35, 52, 55 
Ware v. Lord Egmont, 31 Eng. L 

& E. 89, 372 

Warren & others v. Mayor & Al- 
dermen of Charleston, 2 Gray 

84, 652 

Warren r. Wheeler, 8 Mete. 97, 225 



Waters and Powell, 8 Cow. 669, 949 
Watkins v. Crouch & Co., 5 

Leigh 522, 827 

Watkins v, Holman, 16 Pet. U. S. 

25, 690 

Watkins and United States, 4 

Cranch. C. C. 270. 24 

Watson, ex 'or v. Alexander, 1 

Wash. 353 480 

Watson v. Hurt, 6 Gratt. ^33, 205, 227 
Watson V. Robertson, 4 Leigh 236, 322 
Watts and Green, 1 Ld. Ray. 274, 258 
Watts & wife v. Porter, 77 Eng. 

C. L. 743, 244 

Webb and Wales, 5 Conn. 154, 973 
Webb V. Woods, 13 Eng. L. &E. 

63, 588 

Weeden, Johnson & Co. and Ros- 

enbaums, 18 Gratt. 785, 870 

Weigh tman v. Corporation of 

Washington, 1 Black. U. S. 39, 370 
Wells and Roth, 29 New York 

471 * 19 28 

Well8andState,2Hill8. C. 687, 1015 
West and Brasljear, 7 Pet. U. 8. 

608, 425 

Weston and Belfour, 1 T. R. 310, 176 

Wetherell and Wilson, 1 Keen 80, 602 
Wheaton v. Sexton's lessee, 4 

Wheat 503, 255 

Wheeler v. Driscomb, 3 Cush. 285, 12 
Wheeler and Warren, 8 Mete. 97, 225 
White r. Atkinson, 2 Wash. 94, 501 
White and Barough, 10 Eng. C. 

L. 345, 813 

White and Clark, 12 Pet. U. S. 

178, 81 

Whitely, McConkey & Co. v. May 

& als., 1 Livings. Law Mag. N. 

S. 442 444 

White and Reigart, 52 Penn. 438, 821 
White V. Verm. & Mass. R. R. 

Co.. 21 How. U. S. 575, 817, 957 
Whitlock and Winston, 5 Call. 

435, 29 

Whittam and Benson, 5 Sim. 22, 

602,603 
Whittemore and Cutter, 10 Mass. 

442, 861 

Whitworth V. Adams, 5 Rand. 333, 

944, 946, 947, 953, 966, 985, 967 
Wiley & al. and Brown, 20 How. 

U. 8. 442 224 

Williams' c»se, 3 Bland, ch. 186, 707 
Williams and Blair, &c., 4 Litt. 

34, 270, 270, 276, 301, 302, 309 

Williams v. County Commis- 
sioners, 35 Maine 345, 268, 270 



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xxvm 



OASES CITED. 



Williams and Haley, 1 Leigh 140, 795 
Williams v. Harrington, 11 Ired. 

616, 707 

Williamson v, Gayle & als., 4 

Gratt. 180, 73, 78, 79 

Williams v. Reynolds, 10 Maryl. 

57, 966 

Williams v. Springs, 7 Ired. Law 

384, 863 

Willis t?. Peckham, 1 Brod. & 

Bing. 515, 28 

Wilson V. Hardesty, 1 Maryl. Ch. 

66, 281 

Wilson & McRae v. Keeling, 1 

Wash. 194, 498 

Wilson and Newton, 3 Hen. & 

Mun. 470, 164, 166, 168, 183 

Wilson V. Pilkinton, 11 Jurist 537, 568 
Wilson and Wetherell, 1 Keen 80, 602 
Wimbish and SomervUle, 7 Gratt. 

205, 80 

Windsor and Hart, 12 Mees. & 

Welsh. 68, 186 

Wingate and Sears, 3 Allen 103, 389 
Winston and Bullitt's ex'ors, 1 

Munf. 269, 19, 2:^, 28, 52, 55 

Winston and Redford, 3 Rand. 

148, 920, 921, 922, 929 

Winston v, Whitlocke, 5 Call. 

435, 29 



Withers and Clerk, 2 Ld. Ray. 

1072, 45 

Wood V. Child, 20 Illinois 209, 

266,280 
Woodfin V. Hooper, 4 Humph. 

13, 281 

Woods V, Lawrence County, 1 

Black U. S. 386. 805, 823 

Woods and Webb, 13 Enj?. L. & 

E. 63, 588 

Woods V. Woods, 1 Myl. & Craig 

401, 586, 602 

Wookey v, Pole, 6 Eng. C. L. 

323, 958, 960 

Wordley and Adams, 1 Mees. & 

Welsh. 374, 219 

Wormley's case, 8 Gratt. 712, 1053 
Wyckoff and Lloyd, 6 Halst 

218 28 

Wyld and Ambler, 2 Wash. 36, 499 
Wynehamer v. The People. 13 

New York 384, 557 

Young and Pool, 7 Monr. 588, 301 

Zabriskie v. C. C. & C. R. R. Co., 
23 How. U. S. 381, 387 

Zecharie & Co. and Black & Co., 
3 How. U. S. 483, 376 



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OASES 



DBaDED IN THE 



SUPREME COURT OF APPEALS 



OF 



A^IF^OHSTI-A.. 



Bicfimond. 



MiLLAN V. KePHART. 1867. 

October 



October 16. 

1. K leased to M a house and lot in the city of A, for four years ; 

but there was a stipulation in the lease, that if K sold the 
property before the time ran out, upon a proper notice of such 
sale M should deliver up possession of the premises. The 
lease had been destroyed, and the contents were proved by 
parol evidence. K did sell the property before the four years 
expired, and gave a notice to M to deliver possession. Held : 
1. It was for the jury to ascertain from the evidence what 
were the terms of the contract, and to determine, under such 
instructions as the court might give for their information and 
guidance, what was their legal effect. 

2. The jury was to ascertain the true intention of the parties aa 

embraced in the contract. For that purpose they were to con- 

VoL. XVIII — 1 



Term. 



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2* COURT OF APPEALS OF VIRGINIA. 

1867. eider the whole contract ; not any one provision only, but aD 

October its provisions ; not the words merely in which they were ex- 

^''"^' pressed, but their object and purpose, as disclosed by the lan- 

Millan g^age, by the subject matter, and the condition and relation 

V. of the parties : and thus to determine whether the stipulation 

Kephart. f^^ ^|jg surrender of the property upon a sale and notice, was 

J a collateral limitation, or a covenant. 

3. If the stipulation was a collateral limitation, K was entitled to 

recover the premises ; if it was a covenant, he was not entitled 
to recover. 

4. The notice was not required to be for three months, or for any 

particular period. 

This was a case of unlawful detainer, in the county 
court of the county cf Alexandria, brought in August, 

1858, by George Kephart against Walker R. Millan, 
to recover a house and lot in the said county, rented 
by Kephart to Millan for four years ending on the 1st 
of March, 1859. The case came on to be tried in 
January, 1859, when the defendant asked the court 
for several instructions to the jury; which were re- 
fused. And he thereupon excepted. The facts, as 
they appear from the bill of exceptions, so far as they 
are necessary to understand the questions involved in 
the decisions of this court, are as follows : 

There was a written contract between Kephart and 
Millan, for a lease of the premises in question, for a 
term of four years, at a rent of four hundred and fifty 
dollars, afterwards increased to five hundred dollars 
by a parol agreement, ending on the 1st of March, 

1859, which was placed in the hands of a third party, 
by whom it was destroyed under the supposition by 
him, that it had been superseded by another lease of 
the premises between the same parties. Among other 
stipulations in this written lease, the contents of which 
were proved by parol testimony, there was a stipula- 
tion that upon a sale of the premises, and proper notice 

3] of such sale, Millan was to deliver up possession of 



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COUBT OF APPEALS OP VIBGINIA. 6 

the premises. On the 15th of January, 1858, Kep- 1867. 
hart wrote to Millan from Mobile in Alabama, requir- Tenn.*^ 



ing him to give up possession of the premises on the j^», — 
1st of May following; saying it was for the purpose v. 
of occupying the property himself, either directly or ^^ 
indirectly: and this letter was leceived by Millan. 

On the 1st day of May, 1858, Kephart sold the 
property to Price and Cook ; and they entered into a 
wiitten agreement of that date, under seal, which was 
admitted to record. This agreement is in its language 
very much in the form of a conveyance; ho bargains 
and sells the property to Price and Cook ; bat in other 
respects it is as it describes itself, articles of agree- 
ment; and Kephart, in the conclusion of the agree- 
ment, binds himself to give peaceable and quiet pos- 
session of the premises within twenty days from the 
date, or in default of possession, to pay five hundred 
dollars as a forfeiture. 

On the 5th of June, 1858, the parties seem to have 
been together, with others, about other matters; and 
after these were concluded, Millan presented to Kep- 
hart an account, in which, after charging Kephart 
with various items, amounting to $314 15, he credits 
him with rent up to March, 1858, $500, leaving a bal- 
ance due Kephart of $185 85; which account, at the 
time of its presentation, was not objected to by Kep- 
hart; but he told Millan to put no mere repairs on the 
property, as it would absorb all the rent: and on the 
same day he refuswd to receive and receipt for the said 
sum of $185 85. 

On the 5th day of June, 1858, the following notice 
in writing was served on Millan : 

To Walker R. Millan, Esq.: 

&>, — I hereby notify you to give and deliver up 



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4 CX)URT OF APPEALS OF VIRGINIA. 

1867. possession of the house, jail, land and premises, with 

^^a^ the appurtenances, situate on the north side of Duke 

-— :" — street, between Fayette and West streets in the city of 

V. Alexandria, Va., which you hold of me as tenant 

ep art. ^j^Q^^Qf^ qu ^j^^ ^^i^ ^^y ^f July, 1858, as by the terms 

of your tenancy you are obliged to do ; I having bona 
fide sold the said preir ises, with an agreement to de- 
liver possession of the same. Witness my hand this 
5th day of June, 1858. 

George Kephart. 

The first instruction asked, after referring to the 
facts as hereinbefore given, concluded as follows : Yet 
the plaintiff cannot* recover in this suit, because the 
language of said lease in reference to said notice of 
sale, is wholly indefinite and uncertain in point of 
time, either in contemplation of law, or by the terms 
of the said lease. 

The second instruction asked was as follows: If the 
jury shall believe from the evidence, that a written 
lease existed, between the plaintiff and defendant, for 
a term of years, and that it contained a stipulation 
that the defendant was to surrender possession of the 
leased premises to the plaintiff in the event of a sale 
thereof by the planitiff, then that the plaintiff cannot 
avail himself of a breach of this covenant in this ac- 
tion; and they must find for the defendant. 

The third instruction asked was, that the proper 
notice referred to in the lease, was three months 
notice next before the expiration of the current year. 
The fourth was that the plaintiff must have made such 
a sale of the premises as he could have sued on or en- 
forced by an action at law. And the fifth was, that 
if at the time of the institutioE of this suit, Price and 
Cook were the owners of the property in question. 



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COURT OF APPEALS OF VIKGINIA. 5 

under a bona fide purchase from Kephart, then Kep- 1867. 
hart was not entitled to the possession of the property, Term. 
and coald not maintain this suit against the defen- ^TiTT" 
dant. V. 

There was a veidict and judgment foi the plaintiff; ^^ 
and the defendant obtained a supersedeas to the judg- [5 

ment from the Ciicuit court of the county of Alexan- 
diia; but when the cause came on to be heard in that 
court, the judgment was affirmed; and the defendant 
obtained an appeal to this court. 

Daniel, for the appellant, insisted, 1st. That the 
second instruction asked for should have been given. 
That this instruction rightly assumes that the stipula- 
tion in the lease was a covenant, and not a condition, 
for re-entry of the landlord upon his tenant, nor a 
limitation by which the lease became void, and the 
right of possession vested in him. This is clear for 
the reason that by the sale the landlord's interest, as 
landlord, ceased, having passed thereby to the pur- 
chaser. There was no estate left in the landlord after 
the sale, which he could recover in this or any other 
action. If the tenant had delivered possession to 
Kephart, it would have been merely as the agent to 
receive it for the purchaser. But the court evidently 
treated this covenant as one of re-entry by the land- 
lord, on a breach of some condition in a lease. 

There may be a right of re-entry for the breach of 
any condition in a lease; the most common of which 
is the payment of rent; but it must be expressly pro- 
vided for in the deed, and is always most strictly con- 
strued. Upon a breach ejectment will lie; and per- 
haps unlawful detainer aUo. So there may be in a 
lease for yeais, a condition that upon default the lease 
shall be ipso facto void. In that event also, the land- 



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6 COUBT OF APPEALS OF VIKGINIA. 

1867. lord's remedies for the possession arise. As to 
Term.^ forfeiture and re-entry, the court is referred to Bac. 



^^^^ Abr. Kent A 4; 2 Tuck. Com. 91. 

V. It is further evident, that this was merely a cove- 

^^ * * nant sounding in damages, and the subject of liquida- 
tion and arrangement; that nothing is expressed in it, 
as to the apportionment of the rent in case the pre- 
6] mises should be sold, and thereupon possession given 

up, say in the middle or after the commencement of 
the year. There cannot be found a case in the books 
where a condition of re-entry, or that a lease shall be 
void, has been held to exist, when the lease did not 
plainly so provide. 

2d. Upon the same reasoning the fifth instruction 
should have been given. Kephart no longer had any 
estate or right to the possession, after his absolute 
deed to his vendees. He covenants therein to give 
them possession within a time limited; but this he 
could only do by enforcing his covenant with the ten- 
ant, or by asserting remedies in their names. But 
surely he could not sue for the possession in his own 
name as landlord. And the fair construction of the 
tenant's covenant is to give possession to the purcha- 
ser. He could not, after his absolute sale and convey- 
ance of the title, sue a sti anger for trespass; and this 
is conclusive that he could not sue for the possession. 
OUnger v. Shepherd^ 12 Gratt. 462. Had his con- 
tract been executory, resting in mere agreement, he 
might maintain this action; but not after his absolute 
executed conveyance. JIarHson v. Middleton^ 11 
Gratt. 548. 

There was no counsel for the appellee. 

JoYNEs, J. To entitle the plaintiff in the court be- 



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COURT OF APPEALS OF VIRGINIA. 



low to recover in this case, it was incumbent on him 1867. 
to establish that, at the commencement of the suit, Tenn.' 



the right of the defendant, Tvho had entered into pos- "^Tjj — 
session as his tenant, had expired, and that he still v. 
detained the possession, without the consent of the ®^ 
plaintiff. Code, ch. 134, § 1. The lease was for a 
term of four years, which had net yet elapsed. But 
it appears from the eviaence, that the written lease, 
which had been destroyed, contained a stipulation 
that upon a sale of the premises and proper notice of 
such sale, the defendant was to deliver up possession [7 

of the premises. The plaintiff had made a sale of the 
premises by executory contract, and given notice of it 
to the defendant, before the commencement of this 
action, which proceeds, of necessity, on the ground 
that the right ot the defendant had, by reason of such 
sale and notice, absolutely ceased and determined. 

A clause in a lease designed to abridge the right of 
the tenant daring the period limited fox the duration 
of his estate, may operate in several ways. 

1. It may operate as a collateral limitation some- 
times, but as I think, improperly called a conditional 
limitation, of the tenant's estate. 

A limitation marks the bounds or limits of an estate, 
beyond which it cannot continue. A collateral limi- 
tation marks an event which may happen within the 
time described in the direct limitation, and in the 
happening of that event puts an end to the estate. 
Thus, a lease to A for twenty years, or until B shall 
return from Home, may cease and determine, either 
by the expiration of twenty years, the time marked 
for its duration by the direct limitation, or by the 
happening, within that time, of the event described 
in the collateral limitation, to wit, the return of B 
from Home. In either case, the estate of the tenant 



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8 OOUBT OF APPEALS OF VIRGINIA. 

1867. will have reached the utmost bounds marked for its 

Term, continuance by the limitation by which its duration is 

j^„ governed ; and so, in either case, the right of the ten- 

V. ant will be absolutely at an end, without entry or 

^^ other act on the part of the landlord. 1 Prest. Est. 

42-49. 

2. It may operate as a condition. While a limita- 
tion marks the bounds or compass of an estate, and 
the utmost time of its continuance, the effect of a con- 
dition is to defeat the estate before it reaches the 
boundary, or has completed the full space of time de- 
scribed by the limitation, 1 Preston Est. 49. There 
does not appear, however, to be any ground for con- 

8] tending that the clause under consideration operated 

as a condition. There aie no such words in it as of 
themselves import a condition, and there is no leser- 
vation of a right of entry, which is generally neces- 
sary to raise a condition, where words which of them- 
selves import a condition are not employed. 1 Wash- 
burn Keal Prop. 445. The effect of a condition, how- 
ever, is only to make the lease void at the option of the 
lessor; and the modern authorities seem to establish 
that this is so, even where it is provided that the lease 
shall become void on breach of the condition. RoherU 
V. Davey, 4 Barn. & Ad. 664, (24Eng. C. L. K. 136); 
Jones \. Carter^ 15 Mees. & Welsh. K. 718; Clark 
\. Jones^ 1 Denio. R. 516; Cartwright v. Ga/rdner^ 5 
Cush. R. 273; Phelps v. Chesson^ 12 Ired. Law R. 
194. An entry, therefore, would be necessary to put 
an end to the estate of the tenant. Without such en- 
try the right of the tenant would not expire, and the 
remedy adopted in this case would not lie. 

3. It may operate as a covenant only, having no 
effect upon the estate either to limit or to defeat it, but 
giving to the landlord a remedy by an action for 



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OOUBT OP APPEALS OF VIRGINIA. 



damages, or by a suit in equity for a specific execu- 1867. 
.. ^ October 

"^°- Term. 

The question in this case, therefore, was, whether ^t:tj — 
the clause which is the subject of discussion, operated v. 
as a covenant merely, or as a collateral limitation of ®P * * 
the tenant's estate. 

The books abound in nice and critical learning upon 
what Chancellor Kent justly denominates '*the ab- 
struse subject of limited and conditional estates.'' It 
is often difficult to say, upon the construction of the 
instrument, whether a particular provision is to be re- 
garded as a limitation, a condition, or a covenant. It 
is a well settled rule, however, that conditions subse- 
quent are not favored in law, and are to be taken 
stricti juris ^ because they tend to destroy estates. 4 
Kent. Com. 129. The same reason applies to a col- [9 

lateral limitation, by which aE estate is to be deter- 
mined within the time marked for its continuance by 
the primary or direct limitation. And hence it is laid 
down, that neither conditions nor limitations will 
readily be raised by mere inference and argument. 
The intention to create either the one or the other must 
be clearly ascertained ; but, when so ascertained, it will 
be allowed a controlling effect. 4 Kent. Com. 132. 
The same author also lays it down as a rule, that if it 
is doubtful whether a clause operates as a condition or 
as a covenant, the courts will incline to the latter con- 
struction as mcst favorable to the tenant. 4 Kent. 
Com. 132. And the Supreme Court of Massachusetts 
have held that the same lule must govern where it is 
doubtful whether the clause operates as a limitation or 
as a covenant. 3 Cush. K. 285. But, after laying 
down these rules, Chancellor Kent proceeds as follows : 
"The distinctions on this subject are extremely subtle 
and artificial, and the construction of a deed in its 
Vol. XVIII — 2 



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10 COURT OP APPEALS OF VIRGINIA. 

1867. operation and effect will, aft«r all, depend less upon 
Term.'^ artificial rules than upon the application of good sense 

~j7:z — and sound equity to the object and spirit of the con- 
V. tract in a given case.' ' 
^^ * * The court below was not called upon, however, to 
put a construction upon the clause which is the subject 
of the present controversy; nor are we. The written 
contract had been destroyed, and the particular terms 
of it were not submitted to the court by special verdict 
or otherwise, in order that the court might determine 
their legal effect. The contents of the writing were 
proved to the jury by parol evidence. It was the pro- 
vince of the jury to ascertain from the evidene^e, as 
well as they could, what were the terms used in the 
contract, and to determine, under such instructions as 
the court might give for their information and guid- 
ance what was their legal effect. Accordingly the de- 

10] fendant asked the court to give certain instructions to 
the jury, some of whicn were intended to govern them 
in determining the legal effect and operation of the 
contract. All of the instructions asked for were re- 
fused and we are now to say whether the refusal was 
proper. 

The instruction, which has been mainly insisted upon 
in the argument here, and the one which seems to be 
of greatest importance, is the second. This declared, 
in substance, that if the written contract contained a 
stipulation that the defendant was to surrender the 
possession of the leased premises to the plaintiff in the 
event of a sale thereof by the plaintiff, then the jury 
should regard the said provision as having the effect 
of a covenant merely, and not that of a collateral limi- 
tation, and should find for the defendant. 

The province of the jury was to ascertain the true 
intention of the parties, as embodied in the contract. 



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COURT OF APPEALS OF VIRGINIA. 11 

For that purpose, they were to consider the whole con- 1867. 
tract; not any one provision only, but all its pro- Tenn/ 



visions; not the words merely in which they were ex- "^jj 
pressed, but their object and purpose, as disclosed by v. 
the language, by the subject matter, and the condition ^^ 
and relation of the parties! The effect of the instruc- 
tion proposed, however, was to declare that such a 
piovisioQ as that supposed in it would necessarily con- 
trol the construction ot the whole contract, and to ex- 
dude everything else from the consideration of the 

The appropriate technical words to cieate a limita- 
tion »re doneCy durante^ dum^ v^qtie^ tamdin^ and the 
like, or their English equivalents. But the use of par- 
ticular words would be an unsafe test of the nature of 
the estate. The same words may be taken sometimes 
as a condition, sometimes as a limitation, and some- 
times as a covenant, according to the circumstances 
and the evident intent. And the only safe, general rule 
for determining whether words are words of limitation 
or not, is to consider whether they were used to cii- [11 
dunscribe the continuance of the estate, and to mark 
the period which is to determine it. 1 Washburn on 
Real Prop. 459, and books there cited ; 4 Kent Com. 
132, and note. Looking to the relations of the parties 
and the subject matter of the contract, the jury may 
well have thought that it was the intention of the 
parties to provide, by the clause in question, that, in 
the event of a sale, the estate of the tdnant should 
cease and determine. Nothing could be more natural 
for a person making a lease of property which he 
wished to sell, than to require and provide that the 
lease should end upon a sale being made, for he could 
not otherwise carry the sale into effect. And a man 
not accustomed to the use of technical language might 



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12 OOUBT OF APPEALS OF VIRGINIA. 

1867. very naturally express that intention by a stipulation 
Term, ^'^^.t the defendant should surrender the possession of 



"^j the premises, in case a sale should be made. 

V. The case of Doe v. Phillips, 2 Bingh. R. 13, (9 Eng. 

®^ * * C. L. R. 296,) cited at the bar, and the case of WKeder 
V. Driscorrib, 3 Cush. R. 2S5, which approved it, are 
not inconsistent with the views I have expressed. The 
courts in these cases construed the provisions in ques- 
tion in them to be covenants. They did so upon the 
special circumstances and the established rules of con- 
struction. But the particular provisions and special 
circumstances, as might easily be shown, were very 
different from those of the present case. As I have 
said before, however, we are not called upon here to 
give a constiuction to the contract on which this case 
depends, and I need not, therefore, say more in refer- 
ence to those cases. See the view taken in Allen v. 
Jaquish, 21 Wend. R. 628. The second instruction 
was, therefore, properly refused. 

The first instruction proposed, in effect declared 
that the clause in question did not operate as a limita- 
tion of the tenant's estate, because the provision as to 
12] notice was indefinite and uncertain in point of time. 
Neither the law nor the contract required any particu- 
lar form or length of notice. Any notice which would 
distinctly infoim the tenant that a sale had been made 
would be "proper" notice. The time at which notice 
was given could be ascertained by proof, and the 
maxim of law is, that that is certain which may be 
rendered certain. The first instruction wag, there- 
fore, properly refused. 

The remaining instructions asked for Tvere also 
properly refused, but I think it unnecessary to discuss 
them. 



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OOUBT OF APPEALS OF VIBOINIA. 13 

I am of opinion that the judgment should be 1867. 
aflSrmed. r^^^ 



Millan 
The other judges concurred in the opinion of Joynbs, v. 
T Kephart. 



JUDOMKNT AFFIRMED. 



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14 OOUBT OF APPEALS OF VIRGINIA. 



1867. Walker cfe aU. v. The CoMMONWEALTn. 

October 

Term. 
13] November 2. 

1. The levy of an execution of ^. /a. does not divest the defendant 

in the execution of the property, and transfer the title to the 
plaintiff or the sheriff. Only a special interest is vested in 
the sheriff as a mere bailee, to enable him to keep the propn 
erty safely, and defend it against wrongdoers. It is in the 
custody of the law, and the sheriff has a naked power to sell 
it and pass the title of the owner to the purchaser. 

2. A plaintiff may always, with the consent of all the defendants, 

abandon a levy upon the property of all or any of them, and 
afterwards sue out a new execution. 

3. If the defendants in an execution be a principal and his sure- 

ties, and the property levied on be that of the sureties, the 
plaintiff may, with the consent of the sureties only, abandon 
the levy, and afterwards sue out executions against all the 
defendants. 
. 4. If t' e levy be abandoned by the sheriff, with the consent of 
the defendants, without the concurrence or authority of the 
plaintiff; or if the property is eloigned or removed by the 
defendant out of the reach of the sheriff, without the consent 
of the sheriff, or the plaintiff, the latter may sue out a new 
execution. 

5. But if the property levied on be lost to the defendant by the 

misconduct or neglect of the sheriff, the execution is thereby 
satisfied, to the extent of the value of the property ; and the 
plaintifl can then only look to the sheriff for indemnity. 

6. A mere suspension of proceedings on a levied execution does 

not authorize a restoration of the property to the possession 
of the defendant, or release the levy. And if, by a misunder- 
standing of the directions of the plaintiff by the sheriff and 
the defendants, the property is released by the sheriff to 
them, the plaintiff may have a new execution. 



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COURT OF APPEALS OF VIRGINIA. 15 

7. In a proceeding at law against several parties, judgments against 1867. 

one or more are entered at one time, and against others at October 
another time, one execution may be issued against all. ^''™' 

8. Upon a motion to quash a second execution in vacation, the Walker 

judge may, in vacation, allow the sheriff to amend his return & als. 

on the first execution. -X" 

The 

Common- 

wealth 

These were motions in vacation before the Judge of m*4 

the Circuit Court of the city of Richmond to quash 
three alia^ writs oi fieri facias which issued from the 
clerk's oflBce of that court in favor of the Ccmmcn- 
wealth of Virginia; two of them against C. W. Wat- 
kins, sergeant of the town of Danville, and James M. 
Walker, W. W. Keen and Edward D. Withers, as his 
sureties, and the other against the said Watkins and 
William P. Graves, W. W. Keen and J. J. Hankins, 
as his sureties. The motions were, by consent, heard 
together as one motion. 

It appears that, on the 16th of December, 1866, the 
Commonwealth recovered two judgments against Wal- 
ker, Keen and Withers, as the sureties of Watkins, ser- 
geant of the town of Danville — the first for $1,388.47, 
the balance of the land, property and capitation taxes 
of 1865, and September license taxes of the same year, 
with interest thereon at the rate of twelve jper cent, 
per annum from the 25th of March, 1866, till pay- 
ment, and $208.27 for damages thereon according to 
law^ and the costs of the motion; the second for 
$5,817.99, the May license taxes of 1866, with like 
interest from the 30th of May, 1866, till paid, and 
$872.70 damages, and the costs of the motion. And 
on the 18th of December judgments for the same 
amounts and causes were recovered against Watkins, 
the principal. And one execution was issued upor 
each set of the judgments against Watkins and the 
sureties. These executions were placed in the hands of 



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16 COURT OF APPEALS OP VIRGINIA. 

1867. C. L. Powell, sheriff of Pittsylvania county, and he 
Term/ endorsed the same return on both of them, as follows: 
^ „ — Property levied upon the 14th day of January, 1867, 
&als. consisting of thirty thousand pounds of leaf tobacco 
The belonging to W. W. Keen, a large lot of groceries, 
^^h° consisting of bacon, whiskey, sugar and coffee, the 
15] property of James M. Walker, and about seven thou- 
sand pounds of leaf tobacco, the property of E. D. 
Withers. And on the 16th of January, 1867, I re- 
ceived orders from the Auditor of Public Accounts of 
Virginia to stay proceedings for sixty days. A short 
time thereafter an act was passed by the General As- 
sembly of Virginia, giving the defendant until the 1st 
of August, 1867, to make payment, and the property 
thereby taken out of my hands. 

On thp 14th of January, 1867, the third judgment 
was recovered against Wat kins, Gra\es, Keen and 
Hankins for the sum of $1,288.61, for three-fourths 
of the land, property, and capitation taxes of 1866, 
with interest thereon at twelve per cent, per annum 
from the 20th day of December, 1866, till payment, 
and $193.29 for damages, and the costs of the motion. 

On the 19th of January, 1867, a fieri facias was 
issued on this judgment, which went into the hands of 
the sheriff of Pittsylvania county on the same day; 
on which he returned : Property levied upon February 
14th, 1867, and proceedings stayed by special act of 
the legislature of Virginia, dated 22d February, 1867. 
See page 664, Sess. Acts 1866-67. 

On each of these judgments, it appears that another 
execution issued from the clerk's office on the 29th of 
July, 1867; and these are the executions which the 
plaintiffs in this motion sought to quash. 

Whilst the motions were pending before the judge in 
vacation, and before the evidence in support of the 



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OOUBT OF APPEALS OF VIRGINIA. 17 

motions had been concluded, C. Powell, the sheriflf in 1867. 
whose hands the original as well as the said alias writs Term/ 
ot fieri fa,cias had been successively placed, moved the ^ ,, — 
judge For leave to amend hLs returns upon the original <& als. 
writs of fi^ri facias ; the said writs and original re- The 
turns thereon being set forth in the transcripts of the Common- 
records offered in evidence by the plaintiffs. To this 1 16 
motion the plaintiffs objected; but the court overruled 
the objection, and permitted the sheriff to amend his 
return. The amended return on the first two execu- 
tions is as follows : 

levied 14th January, 1867, on thirty thousand 
pounds of leaf tobacco, the property of W. W. Keen; 
on a lot of groceries, consisting of bacon, Avhiskev, 
sugar and coffee, the property of James M. Walker; 
and on about seven thousand pounds of leaf tobacco, 
the property of E. D. Withers.* The property so 
levied upon of each of the defendants aforesaid, was 
sufficient to satisfy the share of each defendant. On 
the 16th of January, 1867, I received from Thos. R. 
Bowden, Attorney General of the commonwealth of 
Virginia, orders not to serve this execution, but to 
hold it for further orders. On the same day, namely, 
January 16th, 1867, I received orders from Wm. F. 
Taylor, Auditor of State of Virginia, to stay proceed- 
ings for sixty days. On the 22d of February, 1867, 
an act was passed by the General Assembly of Virginia, 
relieving defendants from payment of damages on con- 
dition that payment of debt and costs were paid by 1st 
of August, 1867. In consequence of the foregoing 
facts, I refrained from any further action in the 
premises. 

The amended return on the third execution was: 
Levied 14th February, 1867, upon seven toba<5co 
screws and all the household furniture of James J. 
Vol. XVIII — 3 



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18 COURT OF APPEALS OP VIRGINIA. 

1867. Hankins ; and on three head of horses and one wagon, 
Term/ ^^^ ^'1 ^^^ household furniture, consisting of beds. 



"TTTr — &c., the pioperty of Wm. P. Graves; and on ten 

& als. thousand pounds of leaf tobacco, the property of W. 

The ^^' Keen. On the 16th of February, 1867, E received 

^^^r* ^^^^ ^^' ^' 'r^yl^^5 *^^ auditor of the State of Vir- 

17] ginia, orders to stay proceedings for sixty days; and 

on the 22d of February, 1867, the act was passed, &c., 

as in the returns oq the other executions. 

There were several disputed questions of fact, which, 
though much discussed by counsel, were not con- 
sidered by the court, and therefore, it is unnecessary 
to state the evidence bearing upon them. The only 
question of the kind considered by the court is, whether 
the sureties consented to the dischaige of the property 
by the sheiiflf from the executions. On this question 
there could be no doubt as to AValker and Keen, the 
sureties in the first two executions, and of all the sure- 
ties in the second execution. All these parties were 
united in making the appUcation for relief. Keen, 
with the concurrence of Walker, telegraphed to his 
brother, who was a member of the Senate; and Han- 
kins, with the concurrence of his co-sureties, went him- 
self to Richmond to endeavor to obtain relief for them. 
Watkins, the principal, was not consulted, and had no 
part in the application; he being insolvent, and having 
left Danville. The only question about vrhich there 
could be any doubt is, whether Withers assented to 
the discharge of the property. On that question the 
evidence is stated by Judge Moncure in his opinion, 
and need not be repeated here. 

The judge refused to quash the executions ; and the 
plaintiffs excepted. This bill sets out all the facts 
proved, and is an exception to the permission to the 
sheriff to amend his return, as well as to the judgment 



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COUKT OF APPEALS OF VIRGINIA. 19 

of the court upon the merits: and upon their applica- 1867. 
tion, a writ of error was allowed. Teim*^ 



Walker 
Page & Maury ^ and C, E. Dahney^ for the appel- & al8. 

lants. The 

1st. The motion to quash these executions was made, CkDmmon- 

and heard by the judge, in vacation, under the 

authority of the act, Code of 1860, ch. 187, § 23, p. 

776. But there is no act authorizing the court to hear 

and act on a motion, in vacation, by the sheriff to be [18 

permitted to amend his return; and as the executions 

and returns thereon, are among the records of the 

court in the clerk's office, and can not be taken from 

thence, the judge in vacation can not have them before 

him, so as to act upon them. 

2d. But the great question in this case is, are the 

judgments discharged by the release of the property 

by the sheriff under the circumstances. That there 

was a valid le^y upon property, much irore than 

enough to satisfy the executions, cannot be questioned 

successfully. Bullitfa ex^ors v. Winstons^ 1 Munf. 

269; RothY, WeUs, 29 New York K. 471. And if 

there was a valid levy in each of the cases, we insist 

that it could not have been released by the sheriff. He 

is a mere ministerial officer, and derives his authority 

from the writ, which is his warrant of attorney, and 

without \ihich he is wholly unauthorized to act. The 

writ prescribes his duties, and confers a special, not a 

general, authority. Hence at common law the sheriff 

had no authority to receive money from a debtor 

charged in execution under a ca, sa,; for his business 

is only to execute the writ. Tidd's Prac. 1029. So 

if a sheriff levies under B,fi. fa. and pays the plaintiff 

with his o'w n money, yet he carmot keep the goods to 

his own use; for the authority by which he acted was 



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20 COUKT OF APPEALS OF VIRGINIA. 

1867. to sell the ffoods. And so the sheriff cannot deliver 
Term/ ^^^ goods seized under a^. fa. to the plaintiff in satis- 



■iTTr faction; for the authority is to sell. 
& als. So soon as the levy of a Ji. fa, is consummate, the 
The goods are in cicstodiam legis. The plaintiff's light to 

^"^h'^ satisfaction out of the property levied on, cannot be 
defeated by the act of ihe sheriff. It was otherwise 
when the debtor was charged in execution under a ca. 
8a. There the least indulgence would sometimes put 
a prisoner out of the sheriff's power, even though he 

19] should voluntarily return, and go into prison. But 
this exception grows out of the peculiar nature of the 
ca. sa.; and the reason of it was to deter the sheriff 
from alleviating the duress of debtors, and thereby 
defeating the object of the process; which was to com- 
pel satisfaction by holding the debtor's body in close 
custody. 

After a levy on property sufficient to satisfy the 
execution, there can be no other execution upon that 
judgment, except by agreement of the parties. The 
property levied on is at the peril of the sheriff, and 
nothing will excuse him from properly applying it, but 
the act of God or the king's enemies. He may con- 
stitute the debtor his bailee, or he may leave his bailiff 
in charge of the goods; b'jt this is altogether at the 
sheriff's risk; and if the levy comes to nought, whether 
from the act of the debtor or not, the sheriff makes 
the debt his own: he becomes instantly debtor ex de- 
licto; and there can be no new execution. In fact, 
there is no need for a new writ; for the sheriff can 
pursue the property wherever it may be; and if neces- 
sary, he may sue the defendant for it. If, therefore, 
the defendant is solvent, the sheriff will pay the money 
and go against him: if he is insolvent, then an alias 
writ would be worthless. In Zadd v. Blunt^ 4 Mass. 



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OOITBT OF APPEALS OF VIRGINIA. 21 

R. 402, Parsons, Ch. J. said: ''When goods sufficient 1S67. 
to satisfy the judgment are seized on fieri facias^ the Term/ 
debtor is discharged, even if the sheriff wastes the "T^r — 
goods or misapplies the money arising from the sale, A als. 
or does not return the execution." Xh^ 

It is the spirit and policy of the law that the sheiiflF Common- 
should execute writs of execution with dispatch, and 
have as little temptation as possible to grant indul- 
gence to debtors. If it should be said that the sheriff 
and his sureties may be worthless, it is answered that 
the law tolerates no such presumption. Sir Bartholo- 
mew Shower said argundo^ in Buxton v. ITorne^ 1 
Show. R. 174, ''as to the sheriff's being a poor man, [20 

that is never to be presumed, for law has provided 
otherwise." 

The law manifests wisdom in thus putting the credi- 
tor at the end of his suit, and compelling him to pur- 
sue the sheriff. In some cases it may work hardship; 
but 7?hilst it seems hard to confine the plaintiff's re- 
dress to a proceeding against the sheriff, the real effect 
of the rule is to make the necessity of going against 
the sheriff much less frequent than it would otherwise 
be, because the law makes it so veiy hazardous for the 
sheriff to grant indulgence to a debtor, and makes it 
80 plainly his duty to go right on and make the money : 
for the office of the execution is to make the money 
at once; and to thwart that object is to run counter 
to pat lie policy. Therefore, whilst it is not essential 
to a valid levy of an execution, that the sheriff shall 
take property out of the debtor's possession, yet the 
law does not commend any such practice. The law 
has provided only one way of indulging an execution 
debtor; and that is upon his giving a forthcoming 
bond. 

For the creditoi's safety and piotection, the law has 



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22 COURT OF APPEALS OF VIRGINIA. 

1867. armed the sheriff with a power comraensurate with his 
Term. ^ responsibility. The posse comitatis is at his command ; 



"TTTT — and as was said by Doddridge, J. in May v. Proby^ 

&al8. 3 Buist. E. 200, "no power by intendment of law is 

The ^^1® ^^ resist the sheriff and his power, who hath posse 

^""uu^* comitatus at his command." Hence it is that '*res- 
wealth. 

cous" is no return. It is said by the same judge, in 
the same case : It is greatly in derogation of the king, 
that the sheriff should return that he could not have 
the body there propter resistentiam. And when a 
sheriff returned in Replevin, that he could not have 
the beasts, he was amerced. And hence, after the 
destruction of the gaols in the British metropolis by 
the rioters in 1780, it was found necessary to pass an 
act of Parliament to indemnify the gaolers from the 
21] consequences of the prisoners' escaping, though no 
actual negUgence could be imputed to tbem ; as it was 
impossible for them to prevent such escape. Le Blanc 
and Runnington, arguendo^ in Alsept v. Eyles^ 2 Hen. 
Bl. R. Ill; Comy. Dig. Rescous D, 7; Mildmay v. 
Smith, 2 Wms. Saund. R. 344. 

At common law, if a debtor died charged in execu- 
tion undei a ca. sa,^ the creditor could have no other 
execution. The statute 21 James 1, ch. 24, was 
passed to remedy this. By 8 & 9 William 3, ch. 26, 
the plaintiff was authorized to have a new execution 
when the debtor escaped by any ways or means how- 
soever; and by 41 George 3, ch. 64, the plaintiff 
might consent to the debtor's discharge without losing 
th« benefit of his judgment, except that the body of 
the debtor could not be taken in execution again. 
This statute, however, expired by its own limitation 
in three years. 

But while the legislature has thus innovated upon 
the law in relation to the ca. sa,, the law in relation 



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OODBT OF APPEALS OF VIRGINIA. 23 

to the^. fa, has remained unchanged. And the rea- 1867. 
son seems to be this: The ca, sa. is not of the class of Term/ 
valuable executions. 5 Kep. 87a, 87b. It is not in "^TjT^ 
the strict sense final, but only quousque the defendant & als. 
shall satisfy the plaintiff: but execution is final when xhe 
the plaintiff is satisfied. The debtor's body was ^^^^- 
deemed but a pledge for the debt. But there is no law 
giving the plaintiff more than one sufficient fi, fa. 

It seems to be clear, then, that no act of the sheriff 
could release a levy of an execution of fi, fa. But 
the act of the creditor could release the levy ; for he 
has plenary power over his execution, and the sheriff 
must do his bidding. And when the creditor releases 
the levy the judgment is discharged, upon the principle 
that volenti nonfit injuria. Root v. Wagner^ 3 Tiff. 
K. 1, 17. It is familiar law, that if a creditor consents 
to release his debtor from custody, it was in law a [22 
satisfaction. The law conoulsively presumed a satis- 
faction. Said a distinguished judge : '* When a party 
voluntarily extinguishes his own judgment, he cannot 
afterwards complain of it. If indeed, after having 
levied the execution on the body, the creditor consents 
to release his debtor from custody, and agrees that he 
may go at large, then the law regards the execution, 
the levy and the discharge, as amounting to a satisfac- 
tion of the judgment. No new execution on the judg- 
ment ever can issue. 2 Tuck. Com. 355. And so it 
is where satisfaction is entered on the roll by the 
plaintiff. Ward v. Vass^ 6 Leigh 135. 

If a plaintiff gives up a levy without the consent of 
the defendant, his case is irremediable, and he has him- 
self alone to blame. In the language of Judge Koane, 
in BuUiWa ex'ors v. Winstons, 1 Munf. 269, ''The 
law does not permit our citizens to be harrassed by re- 
peated and unnecessary executions." In Green v. 



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24 COURT OF APPEALS OF VIRGINIA. 

1867. Burke, 23 Wend. R. 496, 501, the Court savs: ''The 
Term/ plaintiff may, by tampering with the levy himself, 

"^'r — lose his debt : as if he release property from arrest 
& als. which is sufficient to pay the debt." And it was held 
The ID Smith v. Hughes, 24 Illinois R. 270, that when a 

^°^h^' levy has been made, unless released by agreement of 
the aefendant, it can only be removed by a sale, or 
by an order of the court issuing the execution. 

If, notwithstanding the debtor's release from cus- 
tody was infavorem libertatis, the law presumed from 
such release a satisfaction of the judgment, though 
the debtor's body was a mere pledge to enforce pay- 
ment of the debt, it would seem to follow a multo 
fortiori that a creditor's release of a valuable satisfac- 
tion, such as a levy, would justify a conclusive pre- 
sumption of satisfaction. It is, in fact, inconsistent 
with any other supposition. And such is the law of 
Vir^nia. Bullitfs ex^ors v. Winstons, 1 Munf. 269; 
2 Tuck. Com. 364, 365. In the case of BulliU v. 

23] Winstons the creditor's hands were not tied, as there 

was, in fact, no consideration moving from Littlepage 
to induce the plaintiff to give time. It is no consider- 
ation for a party to perform what he was under a 
previous obligation to do. 1 Parsons' Cont. 437, edL 
1864. Hence, where a party promised a witness who 
was in attendance under a subpoena, that he would 
compensate him for his loss of time if he would stay 
and testify, it was held there was no consideration for 
the promise. Willis v. Peckham, 1 Brod. & Bingh. 
515; Collins v. Godefroy, 1 Barn. & Ad. 950. 

That the State is bound by the same rule as private 
parties, is well settled. United States v. Wa;tkin8, 4 
Cr. Cir. Ct. R. 270; United States v. Stansherry, 1 
Peter's U. S. R. 573; United States v. Thompson, 
Gilpin's R. 614. 



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OOITBT OF APPEALS OF VIRGINIA. 25 

It needs no argument to prove that the Common- 1867. 
wealth did lelease the levy made under her execution, xerm.'^ 
We are here now asking this court to quash, not writs "T^r — 
of venditioni exponas^ directing the sheriff to sell A als. 
property in his hands levied under former executions, xhe 
but alias writs otfsri facias^ commanding the sheriff Common- 
to levy as well as to sell. And we insist that the 
Commonwealth, having released the levies, the judg- 
ments are discharged; for the defendants, Withers, 
Graves, Han kins and Watt ins were not consenting to 
the release. And we insist, if anyone did not assent, 
the judgment is released as to him and all his fellows. 

A suspension of a right of action for an instaut, as 
to one, extinguishes the right as to all; and the effect 
of a release to one is the same. In Foster v. Jackson^ 
Hobart 52a, 59a, joint debtors are said to be one 
debtor when sued jointly; and therefore, that you 
could not have a capias against one, and another kind 
of executions as to others; which you might have 
done if you had sued them severally. And so a tech- [24 

nical release to one is a bar to all others, because it is 
an admission by the creditor that his debt is paid. 
Savage, Oh. J., Catskill Bank v. Messenger^ 9 Cow. 
K. 37; and it is tantamount to a leceipt in full. 
Crane adm?r v. Ailing^ 3 Green C. L. K. 425. And 
so a discharge of one is the discharge of all. Cheet- 
haith V. Ward, 1 Bos. & Pul. E. 630 ; 1 Parsons Cont. 
p. 27. And a release by operation of law fulfills the 
whole requirement of the law ; it amounts to a forgiv- 
ing of the debt, and an extinguishment of the bond, 
80 as to leave no debt remaining. It proves every- 
thing that could be proved by a technical release. 
Crane adm*r v. AUing, supra. 

Upon the effect of releases, whether technical or by 
operation of law, we refer to Bower v. Suadlin, 1 
Vol. XVIII — 4 



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26 COURT OF APPEALS OF VIRGINIA. 



1867. Atk. R. 294; Slater, ex parte, 6 Ves. R. 146; Ec 
Term/ p(X'rte Gifford, 6 Id. 805; Robertson v. Smith, 18 

-:^— John. R. 459; Ward \. MoUer, 2 Rob. R. 536; 
&al8. Clark v. Clement, 6 T. R. 525; Nicliolson v. ReviU, 
The 4 Ad. & EU. 075, 31 Eng. C. L. R. 166; North v. 

^^U^" ^^^^fi^^^ 13 Queen's Bench R. 536, 66 Eng. C. L. 
^^ ' R. 535; 2 Tuck. Com. 356; Bac. Abr. Release G. 
(Bouvier's edi.); 8 Rep. 136a. And that equity fol- 
lows the law. 1 Story's Equ. Jur. §112; Uimtv. 
Rousma/nier, 8 Wheat. R. 174. 

The science of pleading knew nothing of the title 
or relation of suretyship. 2 Amer. Lead. Cas. 395. 
In a court of law the principal and surety are joint 
debtors, fixed in the same obligation ; and what will 
discharge one will discharge all. Id. 396. 

For the purpose of enforcing contribution among 
co-sureties, one surety who pays the debt is entitled 
to be substituted to all the rights and remedies of the 
creditor, as against his co-sureties, in precisely the 
same manner as against the principal debtor; and al- 
though payment of the debt may have discharged the 
other sureties at law, equity will keep it alive for this 

25] purpose. And this piinciple applies to bonds, judg- 

ments, decrees, mortgages and all other securities 
whatsoever. Amer. note to Dering v. £^arl of Win- 
chelsea, 1 White & Tud. Lead. Cas. in Equ. 117. 
And while the cases fully establish the creditor's right 
to remain quiescent; they treat him as a defaulter in 
everj instance in ^hich any hold is surrendered or 
lien is waived, Avhich might have resulted in the dis- 
charge of the debt and the exoneration of the surety. 
2 Amer. Lead. Cas. 343. And thus it is a well settled 
principle of equity, that a creditor who has the per- 
sonal contract of his debtor with a surety, and has 
also, or afterwards takes, property from the principal 



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COURT OF APPEALS OF VIRGINIA. 27 

as a pledge or security for his debt, is to bold tbe 1867. 
property fairly and impartially for tbe benefit of the xenn^^ 



surety as well as himself; and if he parts with it with- 
out the knowledge or against the consent of the surety, & als. 
he shall lose his claim against the surety to the amount xhe 
of the property so surrendered. Id. 345. ^w«iUh^ 

The release or relinquishment of a security which 
binds the estate of one co-surety, injures the other, 
because he would have been entitled to subrogation 
on paying the debt. 2 Amer. Lead. Cas. 355, 356, 
citing Rice v. Morton^ 19 Missouri R. 263. And the 
same acts are held to discharge the remaining sureties 
quoad the shares which such co-surety would other- 
wise have been required to contribute as would, if 
done to the principal debtor, discharge the surety. 
And when a co-surety has been released, the remain- 
ing co-suroties will be exonerated as to so much as the 
discharged co-surety would have been compellable to 
pay except for the release. In this case, each party 
had a right to satisfy the debt, and to be subrogated 
to all the creditor's rights under the executions. But 
the release of the levies defeated this right, and so 
discharged the defendants to the extent of the levies. 

As to the remedy — The court is armed with plenary 
power over its own process ; and to prev ent the abuse of 
that process, the court will give effect to any defence [26 

that would be available in equity. Steele v. Boyd^ 6 
Leigh 541. The remedy by motion has supplanted 
the audita quet^ela; which is defined in 2 Sellon's 
Prac. 253, to be an action in the nature of a bill in 
equity to be relieved against oppression. 

Robt. Johnston^ for the Commonwealth. 
1. The first question which we have to consider is, 
whether there was a levy by the sheriff upon the 



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28 COURT OF APPEALS OF VIEOINIA. 

1867. property of these debtors. And on this point, it is 
Term.^ obvious that the sheriff was ai rested before he finished 

™ . — the levy. He never took possession of the property, 
& als. either personal or vicarious. He never designed to 
The leave the property in the possession of these debtors 

^"^kh^ as his bailees; but seeing that there would be an effort 
by them to obtain indulgence, he waited the result of 
that application. And so, clearly, the matter was 
understood by the parties; and they went on to use 
and sell the property, after what occurred, as they 
had done before. Walker sold his goods, and the 
others used whatever was in a condition to be used, 
without any regard to what the sheriff had done. 

Whatever may be the rule adopted to define a levy 
of an execution, it must necessarily include the ele- 
ment, that possession must have been taken by the 
officer. The continuity of the debtor's possession, as 
debtor, must have been broken. That was the case 
in BullitVs ex^or v. Winstons^ 1 Munf. 269, so much 
relied on by the appellants' counsel. In that case the 
property was in the power of the officer, and he ap- 
pointed a bailee to hold it. And if it is said that the 
debtor may be constituted the bailee, still if so, it 
must be done by some unequivocal act, such as will 
break the continuity of the debtor's possession; and 
the possession of the officer must be a continuing pos- 
session. Barnes v. Billington^ 1 Wash. C. C. R. 29; 

^7] Lloyd v. Wyckoff^ 6 Halst. R. 218; BecJcman v. Zan- 

sing^ 3 Wend. R. 446; Blades \. Arundale^ 1 Mau. & 
Sel. R. 711. In the case of Roth v. WeUs, 29 New 
York R. 471, cited on the other side, there was posses- 
sion in the officer through the agency of the debtor. 
If thero was no valid possession, then the case comes 
clearly within the principle of McKemiey^ s ex^or v. 
Waller^ 1 Leigh 434; AlcocJc v. HiU, 4 Leigh 622; 



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COURT OF APPEALS OF VIRGINIA. 29 

ftDd Uamphrey v. Hitt^ 6 Gratt. 509. This last case 1867. 
refers to all the other cases, and they establish clearly xenn?^ 



Ihat a creditor may withdraw his execution though it "^TTC 
is about to be levied on the property of the principal & ala. 
debtor. The 

But if the levy was made in these cases, it was irame- ^^u^' 
diately released and abandoned by the sheriff. He 
did not remove the property, or provide for the care 
of it; and there is not the slightest eviaence to show 
that he appointed the debtors his bailees to keep pos- 
session of it for him. Upon the assumption that there 
was a levy, the property was in the custody of the 
law. The creditor had no authority to control the 
sheriff; but the sheriff was a trustee of the debtor as 
well as the creditor ; and he was also the trustee of the 
sureties. His was a public duty, and he was bound 
to act for all. If, then, he released and abandoned 
the levy without the concurrence of the common- 
wealth, clearly his act did not discharge the judg- 
ments. Ward V. VasB^ 7 Leigh 135; Winston v. 
Whiilocke^ 5 Call 435; Randolph's adni'r v. Ran- 
dolph, 3 Rand. 490; Dyke v. Mercer, 2 Show R. 394; 
Allen J, in Garland v. Lynch, 1 Rob. R. 545, 560, 
564; XorrisY. Crummy, 2 Rand. 323; Carr'^sadmWs 
V. Glasscock^ s adrn'r, 3 Gratt. 343; 2 Tuck. Com. 
365. 

This case has been argued for the appellants as if 
the State had consented to the release. But the State 
could only consent through the General Assembly. 
The auditor of accounts cannot receive a dollar for the 
commonwealth. A debt ban only be ,paid to or by [28 

the State in the mode prescribed by the statute. A 
payment to the auditor, and his receipt for it, would 
be worthless. Code of 1^60, ch. 45, § 3, p. 267. 
The auditor cannot release an obligation to the Siate. 



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30 COURT OF APPEALS OF VIRGINIA. 

1867. He cannot dismiss a prosecution for a claim without 
Term/ ^^^ concurrence of the attorney-general. There is 
but one case in which he can release a claim, and that 



Walker 
& ala. is, when it has been standing for more than twenty 

The years he may, with the concurrence of the attomey- 
^*^™ Uh" &®^®^^^5 adjust and settle it upon equitable principles. 
"^^ " Code of 1860, ch. 42, § 24, p. 255. A sheriff cannot 
pay money to the auditor or attorney-general collected 
upon execution : and though an agent to sell delin- 
quent lands may receive the money from the purcha- 
ser, he must pay it into the tieasury in the mode pre- 
scribed by the statute in all cases. Nay, an officer 
cannot even make a mistake against the common- 
wealth; not even a court of justice. Id. ch. 42, § 6, 
p. 252. And if these statutory provisions are not 
sufficient for the protection of the commonwealth, the 
perogative of the crown, except so far as it is incon- 
sistent with our institutions or has been changed by 
statute, and especially with reference to the revenue, 
is in force in favor of the government. United States 
V. Kirkpat/'ick^ 9 Wheat. R. 735 ; Leak^i v. Ferguson^ 
2 Gratt. 419; United States^. Stansben^y^ 1 Peters 
R. 573; Locke v. The Postmaster General^ 3 Mason's 
R. 446; UniUd States v. NichoU, 12 Wheat. R. 505; 
Martin \. The Commonwealth^ 1 Mass. R. 347. 
These acts and authorities show that the auditor and 
attorney-general had no power to give up the debt or 
release it, or in any way to defeat a just claim of the 
commonwealth. And even if the acts done would 
have been binding between man and man, they are 
not binding upon the comiAonwealth. 

But, in fact, there was no assent by these officers 

to the release of the property fiom the operation of 

29] the levy. There could be no such assent, for they 

knew nothing of a levy. The attorney -general di- 



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COURT OF APPEALS OF VIRGINIA. 31 

rected the sheriff not to levy ; and the auditor directed 1867. 
a stay of execution for sixty days; but neither di- Term^*^ 



rected a release of the property. The mere postpone- ^ .. 
ment of a sale T^ili not aflfect the rights of a creditor. <fe als. 
Fisher v. Vanmeter^ 9 Leigh 18. These orders more- xhe 
over were without consideration, and might be re- ^^2"' 
called at any moment. 

If the levy was released, and the commonwealth 
was entitled to her money, then new fi. fa's, were 
necessary. There is no doubt of the fact that the levy, 
If ever made, was released. The appellants held pos- 
session of the property, and have disposed of it; and 
no writ of venditioni exponas could enable the sheriff 
to get hold of it or sell it. A.nd yet it is said the 
issue of the new writs of fi. fa, is an assent by the 
commonwealth to a release made months before. It 
is certain that the commonwealth can enforce her 
jadgroents by the issue of new writs of ^. fa. and yet 
it is insisted that the issue of tnese writs is the expres- 
sion of her assent to that which, according to the 
views of the other side, discharges her judgments. 
Bat the clerk, in issuing a new writ, is not confined 
to the return on the first; but if satisfied the return 
is wrong, will issue another^, fa. And if he refuses 
to do so, the plaintiff may apply to the court en the 
ground of the clerk's refusal; and the court will order 
the issue. Of course, if the execution is improperly 
issued, it may be quashed ; but it is not so clear that 
where one fi. fa. has been levied you may not take 
out another, and sell under it. McKey v. Garth^ 2 
Rob. R. 33 ; EcTchols v. Graham, 1 Call 492. 

The only act done by the General Assembly was 
the act passed at the instance of certainly soulc of 
these parties, whereby they were released from the 
damages recovered against them, provided that the 



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32 COURT OF APPEALS OF VIRGINIA. 

1867. whole amount of principal, interest and costs m ere 
Term/ P^^^ ^^^^ ^^^ public treasury on or before the 1st day 
"7r"Tr of August, 1867. This act was passed on the 22d of 
&als. February. Here is a simple grant of indulgence, 
The without any consideration, either of benefit to the 
^^™kh" commonwealth or injury to the other parties. Such 
30] acts of grace and favor, done by the king or his oflB- 
cers, or parliament, are presumed to be done at the 
instance of those so favored, and are to be taken most 
strongly against the grantee. And it was to avoid 
the operation of this rule of construction that the clause 
ex mero motu was introduced into the king's grants. 
But we are not left to rely upon this rule, which 
would be sufficient, at least until the contrary ap- 
peared; and the evidence is abundant to show that all 
these sureties concurred in the abandonment or release 
of the levy by the sheriff, and in accepting the terras 
granted them by the General Assembly. (The coun- 
sel went into an examination of the testimony, and 
insisted that it showed that all the sureties except 
Withers were active in obtaining the release of the 
levy and the act of the General Assembly; that they 
assumed to act for him, and that he afterwards ap- 
proved and ratified what was done, and took the bene- 
fit of it. And to show how far the courts would go 
in presuming the consent of the parties, he referred 
to Hunter^ 8 adrn'ra v. Jett, 4 Rand. 104, and Ward v. 
Vassj 7 Leigh 135. And he said, that whether or not 
the act of assembly released the levy, the sheriff and 
the sureties so considered and treated it.) 

But it is insisted that Withers is discharged, and 
that the release of one is the release of all. 

We are not dealing with the question of the effect 
of a release of one by contract. There the contract 
is to be looked to with respect to its intention. Nor 



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OOUBT OF APPEALS OP VIRGINIA. 33 

are we considering the effect of a release by contract 1867. 
without respect to intention. Nor are we consideiing Term.' 



the effect of a contract not to sue. That, we are told, ^ ., — 
is a release in equity of the covenantee. But we know & als. 
that in such a case the covenant would release both The 
technically; but only in equity. Waggener i?. Dyer^ Common- 
11 Leigh 384. We are here considering the effect [31 
of an act — ^the supposed act of the creditor releasing 
the levy on Withers' property. The motion here is 
in fact a motion for an exonereiur^ though in form a 
motion to quash the executions. 

In Stede v. Bayd^ 6 Leigh 547, a case similar to 
this. Judge Tucker says: ^^It is not conceived to be 
true that the exaneretur of one party judicially pro- 
nounce, is a necessary release of all others, upon the 
principle that a release of one inures to all; for if this 
was so, then in all cases when the surety is discharged 
by the creditor's conduct, the principal would be dis- 
charged also ; which can not be pretended. " ' ' W hen , 
as in the case of a forthcoming bond, which is always 
joint and several, one party is absolved by any other 
means than what the law deems a release, the right to 
recover is not impaired as to the rest." This position 
is approved, and a part of the language quoted by 
Judge Allen in delivering the opinion of the court in 
the case of Mills v. The Central Savings Bank^ 16 
Gratt. 94. And indeed, it seems to be well settled, 
that the release of one surety is not a release of a co- 
surety in equity. 1 Story's Equ. Jur. § 498a and note 
3; Pitman Prin. & Surety, 192 marg. ; 40 Law. Libr. 
citing ex parte Giffard^ 6 Ves. R. 805 ; Stirling v. For- 
rester^ 3 Bligh. P. Cas. 575; Dunn v. Slee^ 1 J. B. 
Moore 2. 

The doctrine of subrogation is not applicable be- 
tween principal co-sureties. This doctrine existed in 
Vol. XVIII — 5 



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34 COUBT OF APPEALS OF VIRGINIA. 



1867. the civil law, but has never been imported into the 

Term/ Common law in this country : certainly not in Virginia. 

-TTT; — The case of McMahon v. Fawcett. 2 Kand. 514, doea 
fValker 

& als. not sustain it. That case does not touch the question. 

T^e There a security given by the principal debtor to one 

Common- ^f the sureties was held to inure to the benefit of all. 
wealth. 
32] In the English books there are cases of substitution by 

one surety for another; but they were in different 

ranks; as in the case of bail and a surety. And so in 

Virginia where there is a judgment and execution 

against a prircipal, who gives a forthcoming bond; 

there the first surety may go against the surety in the 

forthcoming bond. But where the sureties ar^ on the 

same level, there is contribution between the sureties for 

the share of each, but no substitution. Preston v. 

Preston <& als., 4 Gratt. 88; Buchanan v. Clark, 10 

Id. 154. 

But let us consider this doctrine of substitution with 

reference to the case of the levy of aji, fa. In CarrU 

adm?rs v. GlasscocWs adm?r, 3 Gratt. 343, Baldwin, 

J. says: A lien by levy is temporary, and expires if 

theie is no sale, when the right to sell ceases; and a 

surety who pays the debt has no right to be sustituted 

to the lien. Suppose that, in this case, the whole debt 

had been made by the sale of the property of Withers. 

The levy upon the property of Walker and Keen 

would have still been in existence, but the right of the 

sheriff to sell would have ceased. He could not sell 

after the debt was paid. When Withers had paid the 

debt, how could the sheriff refuse to deliver up their 

property to them ? What defence could the sheriff 

make to an action of trover or detinue by them for it ? 

Must he retain the property until Withers should come 

for contribution ? Shall he be required to determine 

that Withers is entitled to contribution; that the prin- 



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COUKT OF APPEALS OF VIRGINIA. 35 

cipal debtor is insolvent; for unless he is insolvent 1867. 
Withers would not be entitled to contribution from the Term.' 
sureties. This question of the insolvency of the prin- "^TT — 
cipal may be one very difficult to solve; as was seen in & als. 
the case of Harrison v, Lane^ 5 Leigh 414. The 

What equity exists between these parties ? Withers ^^^'^" 
has not paid the debt, non constat he ever will pay; r33 

and non constat the principal will be insolvent when 
Withers pays. Non constat that either surety will be 
insolvent when called upon for contribution. There 
is no right or duty of contribution at present ; not even 
an inchoate right. In cases like the present, when 
sureties are released, the law proceeds on the ground 
of injury; and the party asking relief must show the 
extent of his injury; and then he will have relief pro 
iunto. Ward v. Va^s^ 7 Leigh 135; Norris v. 
Crummy^ 2 Rand. 323; Carres admW v. GlascocWs 
adm'r^ 3 Gratt. 343; Baldwin, J. in Humphrey yi, 
HiM, 6 Gratt. 509; Adams' Equ. 268 marg. note 2; 
2 Amer. Lead. Cas. 4th edi., Hare & Wall, notes 343, 
344, 345, 348, 353, 355, 367, 368, 369. 

What injury has been done to these parties ? The 
release of the property to the debtots respectively was 
surely no injury to them. K Withers was injured by 
the release of the property to the other parties, he was 
injured as a surety. At least he is bound for his ali- 
quot part of the debt and he is only not bound as 
surety of Walker and Keen. He can not have this 
remedy at law after execution sued out and levied. 
To quash the execution would produce irreparable in- 
jury to the plaintiff; and therefore equity is the 
remedy for the defendants in the executions. 

MoNCTRE, P. This case has been argued with signal 
abiUty by the counsel on both sides. All che points 



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36 OOTJBT OF APPEALS OF VIBOINIA. 

1867. discussed are interesting, but many of them are imma- 
Term.'^ terial to the decision of the case, in my view of it, and 



^ , — will not, therefore, be considered. Without intending 
& ala. to decide, I will assume, for the purposes of the case. 
The tlifi^t the first executions which issued on the judg- 

^°^™^^".ments referred to in the proceedings were, in fact, 
levied, as stated in the returns on said executions; 

34] that the auditor had authority by law to control the 
said executions, and to stay proceedings thereon, even 
after they were levied ; and that the eflfect of his act 
in staying such proceedings, either by itself or in con- 
nection with the act of the attorney-general, and the 
act of the General Assembly, passed February 22, 
1867, entitled *'an act for the relief of J. M. Walker 
and others, securities of C. W. Watkins, sergeant of 
Danville." (Sess. Acts, ch. 229, p. QQ4:^) was to dis- 
charge the property levied on from the said executions. 
And upon that assumption I will proceed to con- 
sider — Whether the sureties, who were the owners of 
said property, did not, in fact, consent to the act or 
acts by which it was discharged as aforesaid, and to 
the discharge itself; and if so, whether the new exe- 
cutions issued upon said judgments were not lawfully 
and properly issued, notwithstanding there may have 
been no such consent on the part of the principal 
debtor. 

First. Did the sureties consent ? That all of them 
did, except Withers, seems to me to be very clear. 
All of them, at least with that exception only, as soon 
as the executions were levied, or about to be levied, 
on their property, earnestly appealed to the authorities 
at Richmond for indulgence, which was accordingly 
granted to them, without ^any other consideration or 
motive than pure benevolence. Such was the urgency 
of the pressure upon them; the sheriff having levied 



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cx)uirr OF appeals of vikginia. 37 

upon the goods of the first set of sureties — Walker, 1867. 

Keen and Withei s — and being about to advertise them ; Term/ 
that two of said sureties, Walker and Keen, made 



Walker 
theii first application for indulgence by telegraphic dis- A als. 

patch to a brother of one of them in Richmond, Colonel xh^ 
E. F. Keen, a member of the Legislature, then in ses- ^^?^* 
sion ; and the answer came promptly back, in the same 
way, in a direction to the sheriff, first from the attor- 
ney-general, and then from the auditor, to stay pro- 
ceedings on the executions then in the hands of said 
sheriff. A few days thereafter the sheriff received 
the execution against Watkins and his second set of 
sureties — Hankins, Graves and Keen — and levied it on [35 
the property of said sureties, who thereupon had a 
meeting, and agreed that Hankins should apply in per- 
son to the auditor for indulgence on the said execution, 
which was accordingly done; and on the 16th of Feb- 
ruary, twc days after the said levy, the sheriff received 
a dispatch from the auditor staying proceedings on 
said last mentioned execution. And six days there- 
after, to- wit: on the 22d of February, an act of the 
Legislature was passed for the relief of all the sure- 
ties, releasing the damages recovered against them, 
amounting to t\ielve or fifteen hundred dollars, on 
condition of the payment of principal, interest and 
costs by the 1st of August, 1867. After the passage 
of the act, Walker informed the sheriff that he had 
gotten indulgence to the 1st of August, and the first 
thing the sheriff knew of the passage of the act was 
that he saw a manuscript copy of it in the hands cf 
Walker and Keen, sent to them by Colonel E. F. 
Keen. The sheriff expressly says that Walker and 
Keen approved of and ratified the said indulgence. 
But that aU of the sureties approved of and ratified 
it is conclusively proved in the record. How, then, 



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38 COURT OF APPEALS OF VIRGINIA. 

1867. can it be said that they did not consent to it? It is 
T^rm?*^ aigued, that they only asked for, and consented to, a 



"^rr stay of the proceedings, aod not a dischaige of the 
&al8. levy. But this is certainly not so. Their conduct 

Common- ^"^ declarations, and the thiug itself in its very na- 
wealth. ture, conclusively prove that this is not so. The 
sheriff expressly proves that Keen and Walker not 
only claimed that the act operated as an indulgence 
till the 1st of August, but sought a release of their 
property from the levy, and claimed that the proceed- 
ings did operate as a release of said levy, which eflFect 
was produced, as they contended, by the suspension of 
the auditor and attorney-general, and the act of as- 
sembly aforesaid. And the sheriff took the same v iew 

36] of the subject, and acted accordingly. All of the 
sureties knew that the sheriff took this view of tike 
subject, and acted upon it ; and all of them either ex- 
pressly insisted on the same view, or acquiesced in it 
. by continuing to use and enjoy their pioperty which 

had been levied on, or dispose of it at pleasure, with- 
out regard to the levy, and inconsistently therewith. 
No surety made any objection to the delay of proceed- 
ings or consequential discharge of the levy, and none 
at any time required that the sheriff should proceed 
to sell undei the executions any of the property that 
had been levied on. Each of them took the full bene- 
fit of the indulgence, and accorded it to his co-sureties. 
The nature of the most of the property levied on, and 
the business of some of the parties, was such as to re- 
quire the property to be discharged from the levy as 
a rjonsequence of the suspension of the proceedings. 
"Walker was a merchant, in full and active operation, 
with a large stock of goods in his store, all of which 
were levied on. His business could not go on with- 
out a release of the levy. So important did he, and 



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OOUBT OF APPEALS OF VIRGINIA. 39 

even the sheriff, consider it that his meicantile opera- 1867. 

tions should not be suspended for a moment, that those Tenn?^ 

operations continued to go on even while the parties 1,7 — 

were applying for indulgence by telegraphic dispatch. Walker 

In asking for indulgence, therefore, Walker asked for y.^ 

a release of his merchandise from the levy as the chief ^^ ^^^ 

^ Common- 

object he had in view. The sheriff told Keen and wealth. 

W^lke^, after the indulgence was given by the audi- 
tor, that he would not do any thing further until the 
indulgence was at an end; and Walker told him he ex- 
pected to have his part of the money ready : Have it 
ready, no doubt, by means of his mercantile opera- 
tions. Keen and Withers were producers, and Keen 
a manufacturer of tobacco. Their tobacco had been 
levied on in the leaf; and it was necessary, as well for 
the preservation of the subject as to provide the means 
of paying off the judgments, that the tobacco levied 
on should be prepared for sale, and carried to market [37 
and sold. And this was accordingly done by the 
parties themselves. It surely cannot be necessary to 
say anything more to show the consent of all the sure- 
ties, except Withers, to the discharge of the levy. 

And now as to Withers. A good deal has already 
been said incidentally, tending to show his consent 
also; but what remains to be said will, I think, make 
his consent almost as clear as that of his co-sureties. 
He was not in Danville when the executions were 
levied and the application for indulgence was made by 
his co-sureties; but was at his home in southwestern 
Virginia. He had a farm and crop of tobacco in Pitt- 
sylvania, on which tobacco the executions in which he 
was a defendant were levied. His overseer was in- 
formed of the levy at the time it was made, and no 
doubt promptly informed him of it. He knew that 
the jadgments had been obtained, lor he had been duly 



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40 COURT OF APPEALS OF VIRGINIA. 

1867. notified of the motions, and must have known that ex- 

Term.' ecutions would soon be out against him. He knew 

— that his principal Watkins was insolvent, and that the 

& als. burdens of the judgments would have to be shouldered 

The ^y ^^® sureties. It was natural that the sureties 

^^°^ uS^' should confer together as to the best means of meeting 
the difficulty and bearing the burden, and they doubt- 
less did so confer. That an appeal to the public 
authorities was spoken of and contemplated by them 
m their conferences is very probable. The executions 
came out and were piomptly levied when he Mas far 
away ; and of course he could not actively join in the 
measures, at once from necessity used, to prevent a 
forced sale and sacrifice of the property of the sureties. 
There cannot be a doubt that he would have so joined 
had he been present. It was his manifest interest to 
do so, and his conduct and declarations afterwards 
prove that he \\ ould. Being absent, his associates ap- 
plied for him and them, and obtained indulgence for 

38] both. The appeal must have been presented to the 
auditor, attorney -general and legislature in behalf of 
aU the sureties, and relief was accordingly granted to 
all. The order given by the attorney-general and 
auditor was, generally, to sta/y the executions. And 
the act of the legislature was for the lelief of the sure- 
ties generally. It is impossible to believe that this 
general indulgence would have been given had it been 
imagined by those who gave it that the boon was not 
desired by all who were intended to be benefited by it. 
Keen and Walker certainly intended to make the ap- 
plication on behalf of all. They did not expect or de- 
sire that their property should be discharged, and not 
that of their associate Withers. They, therefore, ap- 
plied for the indulgence in general terms, believing it 
would be as acceptable to Withers as it certainly was 



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COUKT OF APPEALS OF VIRGINIA. 41 

to them. To grant the indulgence in the terms in 1867. 
which it was asked would be to discharge the levy as Tenn. 
to Withers as well as themselves. They surely did "^T^ 
not mean, by asking the indulgence, to discharge & als. 
Withers, and shoulder his part of the burden as well The 
as their own. They must, therefore, have intended ^^J^^' 
to act for Withers, either because he had authorized 
them, or because they knew or believed that he would 
sanction it. And now let us enquire whether it does 
not appear, by what he afterwards said and did, that 
he either authorized it beforehand, oi at least after- 
wards sanctioned it. Withers, though not present 
when the executions were levied and the applications 
for indulgence were made, yet came to Pittsylvania 
very soon thereafter, and before the passage of the act 
of the legislature; having come over, as he said, for 
the purpose of meeting the executions like a man, and 
making some arrangement to pay them. On that 
occasion, he said to the sheriff that he was very glad 
the indulgence had been granted, and expressed the 
hope that something might be made out of the assets 
of Watkins (the principal) to alleviate the liability. 
The sheriff judged from Withers' conversation that he [39 
had been to Danville, and heard of the indulgence. 
Now here it will be remarked, that the pioceedings to 
obtain the desired indulgence to ail the sureties were 
not then completed, but were still in course of execu- 
tion. The act of assembly, which was expected to 
give indulgence to the 1st of August, had not then 
been passed, but its probable passage was no doubt com- 
municated to Withers by his associates. Did he ob- 
ject to what had been done, or protest against what 
was about to be done, either to his associates, or to 
the sheriff, or to the auditor, or to the legislature, oi 
to any person whatever ? Not a word of any such 
Vol. XVIII — 6 



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42 OOURT OF APPEALS OF VIRGINIA. 

1867. thing is to be found in the record, where it would cer- 
T^n/ tainly have been if it had existed. On the contrary, 



— what he said to the sheriff shows that he approved 

& als. and sanctioned what ha'l been done and was doing in 

The bis behalf, and ' ' was very glad the indulgence had 

^^°^Uh° ^^^^ granted," not only because ic was an indulgence 
to his associates, but especially because it was an in- 
dulgence to himself. And he ''expressed the hope 
that something might be made out of the assets of 
Watkins to alleviate the liability" — that is, the lia- 
bility of the sureties, himself in the number, thus ad- 
mitting that their liability was to continue, and was 
only to be alleviated by means of the indulgence. We 
see, in this expression of Withers, a common object 
between him and his co-sureties, thus showing that 
they had conferred together and concurred in regard 
to one of the benefits to be expected from the indul- 
gence. A similar expression was made by Keen and 
Walker, when they claimed to the sberifif that they 
had received an indulgence till the 1st of August, 1867, 
*'by which time they hoped that Watkins would settle 
up his business, and that they would realize something 
from that source." And Withers accepted, and has 
enjoyed, the full benefit of the indulgence thus granted 
to him and his associates. Instead of his tobacco 

40] being sold in the leaf, in his barnes in the country, at 

a forced sheriflP's sale, he has had the advantage of 
preparing it for sale and carrying it to the best mar- 
ket, and selling it for the best price. And in May or 
June, 1867, we find him speaking to the sheriff of the 
fine price he had gotten for his crop of tobacco — the 
very crop on which the execution had been levied, by 
the discharge of which levy he had been enabled to 
obtain such a price. It thus appears, from all the cir- 
cumstances of the case, that Withers either previously 



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COURT OF APPEALS OF VIRGINIA. 43 

authorized his associates, Keen and Walker, to apply 1867. 
for the indulgence which was granted to him and t^^/ 



them, or sanctioned the application af i/cr it had been „, ., — 
made, and even before it had been fully granted, and Aals. 
accepted and has enjoyed the benefit of the indulgence, xhe 
And in either view it may be said, that he as much Common- 
consented as did the other sureties to the indulgence 
which was given, and the effect of it (if it had that 
effect) in discharging the levy of the first executions. 
And now I proceed to enquire. 

Secondly. Were the new executions which were 
issued upon the judgments lawfully and properly 
issued, notwithstanding there may have been no such 
consent on the part of the principal debtor. If all the 
defendants, piincipal as well as sureties, had consented 
to the discharge of the first levy, it is abundantly 
proved by the authorities, and indeed admitted on all 
hacds, that it would have been no bar to new execu- 
tions. It is not pretended that there was any new 
contract which satisfied the judgments or tied the hands 
of the commonwealth, even for an instant; but there 
was simply a voluntary release of the levy, and if all 
the defedants had consented to such release, there 
would have been no question in the case. All the 
mrdie^ did consent, and there is no evidence whether 
Hie princij}alj who is the only remaining defendant, 
consented or not. If he had been consulted, he would 
no doubt have consented to that or any other course [41 

which his sureties might have thought would be a 
benefit to them, or which they might have desired to 
pursue. He was insolvent, and really had no interest 
in the subject. The executions were not levied on his 
property, for he had none, but only on the property 
of the sureties. And they, and all others concerned, 
doubtless thought it wholly unnecessary to consult him 



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44 COURT OF APPEALS OF VIKGINIA. 

1867. as to whether his sureties should be indulged or not in 
TeruL ^^^ payment of his debt, ffis consent might fairly be 



--. ,, — presumed and inferred in the case, if it could be affected 
& als. by such consent. He is not here complaining. He 
The made no motion to quash the new executions, and of 

^^h° ^^'^'"^^ ^^^ ^^^ J^^'^ ^^ ^^^^ appeal from the judgment 
overruling the motion of the sureties. We might, 
therefore, properly stop at this point. But let us pro- 
ceed further, and treat him as not having given his 
consent. And then how does the matter stand ? 

The learned counsel for the plaintiffs in error con- 
tend, that though the sureties may have consented to 
the indulgence which released the levy upon their 
property; though such indulgence may have been 
granted only at their request and for their benefit; 
though they may have received and enjoyed the full 
benefit of the indulgence ; and though they may be in 
no danger of sustaining any less by reason of it; yet, 
because their insolvent principal did not also consent 
(though there is no evidence whatever of his dissent) 
they are, by reason of such indulgence and its effect, 
forever released from the debt ! And not only so, 
but that the principal debtor himself is thereby released 
from the debt, and must go quit thereof forever ! The 
counsel maintain that this strange effect is produced 
by a technical, unbending rule of law, that when the 
plaintiff in an execution against several defendants 
which has been levied on suflBcient personal property, 
voluntarily discha,rges the levy without the consent of 

42] all the defendants he thereby releases such of the de- 
fendants as do not consent to such discharge ; and that 
a release of one or more of several joint, or joint and 
several debtors, is a release of all. They maintain 
that the rule applies to this case, and therefore, that 
the discharge of the levy on the property of the sure- 



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COURT OF APPEALS OF VIRGINIA. 46 

ties, (though at their request,) without the consent of 1867. 
the insolvent principal, (supposing that he did not con- >^1^.'^ 
sent,) was a release of the principal, and that a release — 

of the principal was, by operation of law, a release of & ala 
the sureties also. Now if there be such a technical, <phe 
unbending rule of law, and it applies to this case, we Common- 
will have to be governed by it, unjust and unreason- 
able as its operation would certainly be. But surely 
a rule of law which would lead to such consequences 
ought to be well and firmly established by authority 
before we are required to follow it. Is there such a 
rule of law ? I think not. 

It has been often said by judges, in general terms, 
that a levy of an execution on personal property 
scfficient to discharge it is a satisfaction of the judg- 
ment; but this is certainly not so. Clerk v. Withers^ 
2 Ld. Raym. R. 1072, is the source from which the 
expression seems to have been derived; and though 
there may be dicta to that effect in the opinions of 
some of the judges who decided that case, there is cer- 
tainly nothing in the decision itself which gives any 
iirarrant to the expression. Nobody can find any fault 
with that decision. A sheriff had levied an execution 
in favor of an administrator on the property of the 
defendant, and before the sale of the property the 
plaintiff died. The defendant then sued the sheriff for 
his property, upon the ground that the death of the 
plaintiff put an end to further proceedings on the exe- 
cution. But the court held, that the sheriff was bound 
to go on and make the sale, and pay the money into 
court, according to the mandate of the writ. This 
case is fully reviewed and commented upon in the 
opinions of the judges in Giles v. Grover^ 6 Bligh's R. 
277, decided in 1832, in which the effect of a levy, [43 

and the nature of the lien thereby acquired, are sub- 



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46 COURT OF APPEALS OF VIRGINIA. 

1867. jects of much observation. All the cases show that 
Term/ ^^® mere levy of the execution on property of the de- 

*^"r fendant is not satisfaction of the judgment, but only 
& als. a step towards it. A levy on property is not the ob- 
The j^^^ ^f ^^^ execution, but payment of the money. The 

^w™Uh° ^^^y ^^^^ ^^^ divest the defendant of the property and 
transfer the title to the plaintiff, or even to the sheriff. 
The property still remains in the defendant, notwith- 
standing the levy, and only a special interest is vested 
in the sheriff, as a mere bailee, to enable him to keep 
the property safely, and defend it against wrongdoers. 
While subject to the levy it is in the custody of the 
law, and the sheriff has a naked power to sell it and 
pass the title from the owner to the purchaser. Several 
successive steps are to be taken between the issuing of 
the execution and the satisfaction of the judgment. 
The first step is, to place the execution in the hands of 
the sheriff. The effect of this step is, to make it a 
lien on the property of the defendant to a certain ex- 
tent and of a certain character. The nature of this lien 
is commented on and explained in Humphrey v. IliMy 
6 Gratt. 509, as well as elsewhere. It is of so imper- 
fect a nature as that the plaintiff may abandon it at 
pleasure by withdrawing his execution from the hands 
of the sheriff, or directing him not to levy it, without 
discharging the judgment, or even affecting the lia- 
bility of a surety who may be one of several defen- 
dants. Id. a,nd the cases therein cited of MeKetiney 
V. Waller, 1 Leigh 434, and Alcock v. IliU, 4 Id. 622. 
The second step is, to levy the execution on specific 
property, by which such property is set apart from 
the general property of the defendant and placed in 
the custody of the law until it can be sold and applied 
to the payment of the execution. The third and last 
step is, the sale of the property. Then, and not till 



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COURT OF APPEALS OF VIRGINIA. 47 

then, the plaintiff may be said to have goiten to the 1867. 
end of his suit, at least so far as the defendant is con- Term/ 
ceined, and to the extent of the value of the property, ' „ ,, 
unless indeed the property be lost by the neglect or & als. 
misconduct of the sheriff, without the defendant's The 
consent; in which case also the plaintiff may be said ^^"^^?'^" 
to have gotten to the end of his suit. Kow until this [44 
last step is taken, the thing remains injieri^ and may, 
in a certain manner, and under certain circumstances 
be so undone as that the plaintiff may be placed in • 
the same situation iu which he was before he sued out 
execution, and may therefore sue out a new execution. 
But by taking the second step, to wit: the levying of 
the execution, the plaintiff increases his responsibili- 
ties and makes it more diflBcult to withdraw the exe- 
cution without endangeriug the debt. He has thereby 
acquired a specific and a better lien ; still not perfect, 
but yet so nearly so, as that he cannot always safely 
release it of his own accord. lie then becomes, as 
has been said, a trustee of the execution for the bene- 
fit of all parties concerned. The defendant is inter- 
ested; because a specific portion of his property hav- 
ing been seized and placed in the custody of the law 
for the payment of the execution, he has a right to be 
protected against another seizure under a new execu- 
tion for the same debt, without his consent, or unless 
there be a necessity for it. The sureties, if there be 
any, of the defendant on whose property the levy is 
made, are also interested, in having the property of 
their principal, thus specifically bound for the pay- 
ment of that debt, applied to that purpose, in their 
exoneration in whole or in part, according to the value 
of the property. They also, therefore, have a right 
to be consulted by the plaintiff iu giving up the levy, 
aad must consent thereto in order to make them liable 



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48 COURT OF APPEALS OF VIRGINIA. 

1867. to a new execution; at least without having credit lor 
T^rm/ ^^^ amount of the first levy. Until the plaintiflf "has 



^ , — gotten to the end of his suit;" in other words, until 
& als. he has gotten satisfaction of his demand, or what is 
The equivalent thereto, he may continue to prosecute his 
^^^h" ^®^®^y ^ judgment and sue out execution after exe- 
45] cution thereon ; taking care not to oppress oi injure 
the defendant or his sureties, if there be any. The 
court in which the judgment is rendered has ample 
• power to superinteud and control the execution of 
process thereon, and will take care to prevent its be- 
ing perverted to purposes of injustice or oppression. 
A plaintiff, therefore, may always, with the consent 
of the defendants, abandon a levy upon the property 
of all or any of them, and sue out a new execution. 
If the defendants be a principal and his sureties, and 
the property levied on be that of the sureties, the 
plaintiflf may, with the consent of the sureties only, 
abandon the levy and sue out a new execution against 
all the defendants. No injury is done to the princi- 
pal by releasing the lien on the property of the sure- 
ties, for that lien cannot enure to his benefit in any 
possible event. If his sureties are satisfied, he, cer- 
tainly, has no cause to complain. So also if the levy 
be abandoned by the sheriff with the consent of the 
defendant, without the concurrence or authority of 
the plaintiflf; or, if the property be by the defendant 
eloigned or removed out of the reach of the sheriflf, 
without the consent either of him or the plaintiflf, the 
latter may sue out a new execution. But if the prop- 
erty levied on be lost to the defendant by the riiscon- 
duct or neglect of the sheriflf, the execution is thereby 
satisfied to the extent of the value of the property, 
and the plaintiflf can then look only to the sheriflf for 
indemnity. The reason of this is plain. The plain- 



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OOUKT OF APPEALS OF VIRGINIA. 49 

tiff» l>y persuing his remedy, has caused the defen- 1867. 
dant's property to be taken out of his hands and t^^/ 



placed in the custody of the law for the satisfaction — 

of the delt. If that property be lost by the default & als. 
of the officer of the law, who in this respect may be The 
said to be the agent of the plaintiff, and without the ^°^ uh^' 
consent of the defendant, it is reasonable and proper [46 
that the loss should not fall on the defendant, and he 
be thus, to that extent, compelled to pay the debt 
twice. The plaintiff must incur the risk of ultimate 
loss in this respect, as the result of an inherent defect 
of his legal remedy. 

These principles seen to be fully sustained by the 
cases, especially the most recent; among which are 
Green v. Burke^ 23 Wend. R. 496; Ostrander v. 
WalUr, 2 HilPs N. Y. R. 329; Taylor v. Banney, 4 
Id. 619; Ttie People v. Hopson, 1 Denio's E. 574; 
Peck \. Tiffcmy^ 2 Comst. K. 451; United States v. 
Dashiel, 3 Wall. U. S. E. (oSS. In The PeopU v. 
Hopson^ the court, Bronson, Ch. J., said: *'lf the 
broad groucd'has not yet been taken, it is time it 
should be asserted, that a mere levy upon sufficient 
personal property, without anything more, never 
amounts to a satisfaction of the judgment. So long 
as the property remains in legal custody, the other 
remedies of the creditor will be suspended. He can- 
not have a new execution," &c. "But without some- 
thing more than a mere levy, the judgment is not ex- 
tinguished. There is no foundation in reason for a 
different rule. The mere levy neither gives anything 
to the creditor, nor takes anything from the debtor. 
£t does not divest a title; it only creates a lien on the 
property. It often happens that the levy is over- 
reached by some other lien, is abandoned for the bene- 
fit of the debtor, or defeated by his misconduct. In 
Vol. xvin — 7 



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50 COUBT OF APPEALS OP VIKOINIA. 

1867. such cases there is no color for saying that the judg- 
Term. ment is gone; and yet they are included in the notion 



"=Tr — that a levy satisfies the debt." ''The true rule I 
& al8. take to be this : the judgment is satisfied when the 
The execution has been so used as to change the title, or 

^^Sh^' ^ some other way deprive the debtor of his property. 
This includes the case of a levy and sale; and also the 
case of a loss or destruction of the goods after thej 
have been taken out of the debtor's possession by vir- 

47] tue of the process. When the property is lost to the 

debtor in consequence of the legal measures which the 
creditor has pursued, the debt is gone, although the 
creditor may not have been paid. He must take his 
remedy against the officer, if he has been in fault; aud 
if there be no such remedy, the creditor must bear the 
loss. But until the debt is paid, or the debtor has 
lost his property in consequence of his levy, the judg- 
ment remains in force." In Peck v. Tiffany ^ the 
couit, Iloyt, J., clearly states in effect the same doc- 
trine thus: '* There are some old cases in which dicta 
are found that a levy upon sufficient property to sat- 
isfy an execution, is a satisfaction ; but that doctrine 
has long since been exploded. When a sheriff levies 
on sufficient property, and through his negligence or 
misconduct it is lost, destroyed, or otherwise disposed 
of, so that the defendant is deprived of the benefit of 
it, there is no doubt it should be regarded as a satis- 
faction of the execution, and the plaintiff must in such 
case seek his remedy against the sheriff. But when 
the debtor has neither paid the debt, or been deprived 
of his property, the simple act of levying upon it is 
not satisfaction, whether the debtor has been per- 
mitted to retain the property either by his own mis- 
conduct or by bis request, oi the voluntary act of the 
Dfficer; because neither works any wrong to him." 



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COURT OF APPEALS OF VIRGINIA. 51 

In the United States v. Dashiel^ decided in 1865, the 1867. 
last case we have on this subject, it was decided that xerm. 
the levy of an execution, even if made on personal ~^^^ 
property sufficient to satisfy the execution, is not a ifeals. 
satisfaction of the judgment, and accordingly, there- The 
fore, does not extinguish it, if the levy have been aban- ^^^^" 
doned at the request of the debtor, or for his advan- 
tage; as for example, the better to enable him to find 
purchasers for his property. In the opinion of the 
court delivered by Justice Clifford, the rule is laid 
down in the same words in which it is laid down by 
Ch. J. Bronscn as before mentioned, which words, [48 

T^ere repeated by the latter in Taylor v. Rarmey^ re- 
ferred to by the former. 

There is nothing in any case decided by this court, 
so far as I am aware, at all in conflict with the prin- 
ciple before stated. The decisions of this court which 
were relied on in the argument as having a bearing 
upon this subject, are cases in Which sureties sought 
rehef, generally by motions to quash executions on 
account of some act of the creditor done, as they sup- 
posed, in derogation of their rights; as by making a 
new contract with the principal debtor which tied the 
hands of the creditor, or by releasing the lien of a 
levy on the property of the principal debtor, without 
the consent of the sureties. In this case there was no 
contract between the creditor and debtor, principal or 
sureties, which tied the hands of the creditor for an 
instant; indeed, no contract at all between them, ex- 
cept that on which the judgments were obtained. 
The orders given by the attorney -general and auditor 
were founded on no valuable consideration, and were 
revocable at pleasure, though that of the auditor was 
for a stay of proceedings for sixty days. And the act 
of assembly, as was properly conceded in the argu- 



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52 OOUBT OP APPEALS OF VIKGINIA. 

1867. ment, merely released the damages on condition of 
Term.'^ the payment of principal, interest and costs into the 

"^TT treasury on or before the 1st day of August, 1867, 
&al8. and did not give a moment's stay of prcceedings on 
The ^^^ executions, or in any manner afifect the levy there- 

^w^r* ^^' ^^^ ^^ addition to all this, as I think I have 
shewn, the sureties not only consented to the said 
orders and act, but solicited and obtained them for 
their special relief and accommodation; Ihe executions 
having been levied alone on their property, and their 
principal being insolvent. What analogy there can 
be between this case and the decisions of this court 
above referred to, and how any title to relief can be 

49] worked out by the sureties or any of them on the au- 
thority of those decisions, or otherwise, upon the facts 
as I think 1 have conclusively shown them to be, I 
confess I cannot comprehend. If I an: right as to 
the facts, I think I am certainly right in my conclu- 
sion. If the facts were different, I would have some 
interesting questions yet to consider, but as they are 
not, it is unnecessary to notice them. I intended to 
have reviewed at some length the cases of Baird v. 
Rice^ 1 Call 18; BullUfs ex'^orav. Winstons^ 1 Munf. 
269; SUele v. Boyd, 6 Leigh 547; and Ward v. 
Vass, 7 Id. 135; but I do not think it necessary to do 
so, and the length of this opinion admonishes me of 
the propriety of drawing it to a close. Before I do 
so, however, T must notice one or two other matters. 
I have thus far considered the case as if the Com- 
monwealth, through her agents, had consented to and 
concurred with the sheriff and the sureties in the dis- 
charge of the levy. But such I think is not the fact. 
Evidently, neither the attorney-general nor the audi- 
tor kncTV anything of the executions having been 
levied when they gave their orders of suspension. 



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COURT OF APPEALS OF VIRGINIA. 53 

The question of levy or no levy was one of doubt 1867. 
upon the facts — at least as to some of the parties — xerm. 
and it does not appear that any of the facts were "^[Jj^^ 
communicated to these ofBcers of government. In- &al8. 
deed, it appears that even Keen and Walker were The 
probably under the impression that no levy haa been ^^h*' 
made when they applied by telegraphic dispatch to 
Richmond for indulgence; for the sheiiflf proves that 
they made no objection to the levy otherwise than 
they desired the levy delayed until they could heai 
the result of their application. But however that 
may be, the attorney-general and auditor, even if 
they knew when they gave their orders that the exe- 
cutions were levied, did not intend thereby to dis- 
charge the levy, but merely to suspend proceedings 
on the executions; and such is the true construction 
of their acts. They did not direct the property to be . \M 
restored to the possession of the defendants. A mere 
suspension of pioceedings on a levied execution does 
not authorize a restoration of the property to the pos- 
session of the defendant, nor release the levy. Fisher 
V. Yanmeter^ 9 Leigh 18. That tha •aiiditoK did not 
intend to release the, levy of the first execution is 
shown by the convers^ition \^Uieh. oocurrfed b^ween 
the sheriff and the auditor's clerk, when the first exe- 
cutions were returned, from which it is obvious that 
the auditor expected the money to be made on the 
first eirecutions if not paid on or before the 1st of 
August. That the act of assembly did not operate a 
discharge of the levy has already teen shown. So 
that if this view be, as it seems, correct, the release 
of the levy in this case has resulted, not from any act 
or consent of the Commonwealth or her agents, but 
solely from a misconception by the sheriff and the 
sureties, of the meaning and effect of the orders of 



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54 OOUKT OF APPEALS OF VIKOINIA. 

1867. the attorney-general and auditor and act of assembly 

Term/ aforesaid, and from the consequent abandonment of 

^ ,, the property by the sheriff, and convex sion of it by 

& als. the sureties to their own use. In this \iew of the 

The case, the right of the Commonwealth to sue out the 

^"^Uh'^" ^®^ executions, would, if possible, be still more mani- 
fest. 

In regard to the last assignment of error, which 
was not relied on or noticed, if was not in fact with- 
drawn, in the argument, to wit, that the judgments 
rendered against, Walker, Keen and Withers at one 
time, and the judgments rendered against Watkins at 
another time, the jfirst process not having been exe- 
cuted as to him, are not joint judgments against all 
the said parties, whereas the executions are against 
all the said parties jointly, and therefore do not pur- 
sue or correspond with the judgment. If that be any 
defect at all, it is only formal and not substantial, and 
has not injured, but rather benefited, the plaintiffs in 
error. I therefore think it is not a good ground for 

51] reversing the Judgiy\^t> especially as it does not ap- 
pear that tfie pbjection^was taken in the court below. 
The Commpnv^ealth. had a right to have her motion 
against ft^e sureties continu9d until the notice was 
serveSd on the principal, and then to take a joint judg- 
ment against all ; or she had a right to take several 
judgments against the sureties and the principle, as 
they were respectively^ served with notice, as she did; 
and she might lawfully have sued out several execu- 
tions on the judgments as they were obtained. But 
she chose to wait after getting judgments against the 
sureties until she had also gotten judgments against 
the principal in the joint proceeding against all, and 
then to sue out joint executions against all. I can 
see nothing objectionable in this, and certainly noth- 



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OOUKT OF APPEALS OF VIKOINIA. 56 

ing of which the plaintiflfs in error have any reason to 1867. 

1 . October 

compiam. Term. 

In regard to the right of the judge in vacation to ^ „ 
give the sheriff leave to amend his returns; there can & als. 
be no doubt, I think, but that he has that right, as in- xhe 
cidental to the right expressly given him by the Code, ^^2^" 
chap. 187, § 23, to hear and decide on in vacation, a 
motion to quash an execution. A return on a former 
execution is generally very material evidence on the 
hearing of such a motion, and it is often important, 
in the course of the proceedings, to permit the sheriff 
to make or amend his return according to the truth 
of the case, and with a view to its effect upon the de- 
cision of the motion. Sucn permission has always 
been given by our courts. BuUiWa ex'ora v. TTm- 
«^ww is an instance of this kind. When, therefore, 
the statute gave to the Judge in vacation power to 
quash an execution, it gave him also, by implication, 
power to permit the sheriff w) make or amend his re- 
turn, as the case may be, on the former execution, 
and I think the judge did not err in permitting the 
amendments in this case. But whether we look to 
the original or the amended returns, the result will 
not be varied. In either case, we must look also to " [62 
all the facts of the case as contained in the record and 
decide accordingly. Wa/rd v. Yass^ 7 Leigh 135. 
There is, indeed, no material conflict between either 
of these two sets of returns and the other facts of the 
case. 

I am of opinion that there is no error in the judg- 
ment, and that it ought to be aflftrmed. 

The other judges concurred in the opinion of Mon- 

CUKE, P. 

JmXJMENT AFFIBMED. 



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56 COURT OF APPEALS OF VIKOINIA. 



1RA7 

October J^MEs River and Kanawha Company v. Littlejohn. 
Term. 

L1TTLE.10UN V. Ferguson cfe als. 
November 2. 

1. In a suitfin which there is an absent defendant, there is a de- 

cree against the home defendant, from which he appeals. 
Pending the appeal, th^ absent defendant may file hifi peti- 
tion in the court below to be permitted to appear and file his 
answer in the cause, and may have the decree re-heard and 
set aside, if it is erroneous as to him. 

2. If upon such re-hearing the decree, or so much of it as is the 

subject of appeal, is wholly set aside, the appeal will gene- 
rally be dismissed. But if an appeal is taken from the de- 
cree on the re-hearing, before the dismissal of the first ap- 
peal, the appellate court may refuse to dismiss it. 

3. QuvERE : Whether the statute limiting the period in which an 

absent defendant may answer and have the decree corrected, 
applies to the time of presenting the petition, or of filing 
the answer, or of the decree upon the re-hearing. 

4. What laches of a party in a pending suit will not conclade 

him. 

5. A plaintiff in equity files with his bill, as the ground of bis 

claim, an order on one of the defendants, which has not 
been accepted. No proof of the execution of the order is 
given ; but its genuineness is not questioned in the court be- 
low, and it is made the basis of a decree in favor of the 
plaintiff. It is too late to make the objection in the appel- 
late court, to the want of proof of the order. 

6. The bill having alleged that the order was drawn by one of 

the defendants, the act. Code ch. 171, J 38, applies, and no 
proof of the signature is necessary. 
54] 7. The written opinion of an attorney of a party, or the recitals 

in a bond, though the papers are filed with the answer of a 



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COIIKT OF APPEALS OF VIRGINIA. 57 

defendant, and are not excepted to as evidence, are not com- 1867. 
petent proof of the facts recited in them against other par- ^^®' 
ties. L_ 

8. A commi^ioner's report is based upon the evidence of papers James 

filed in the cause ; and there is no exception to the report, l^iver 
The papers not being competent evidence of the facts recited Kanawha 
in them, the court may disregard the report, and decide the Company 
case upon the competent testimony, and against the report. v« 

9. R gives to L an order on J, his debtor, for a sum certain ; much i^hn^ 

less than the whole debt ; and he gives to F an order on J 
for the whole balance due from J to R. F's order having Little- 
been lost, in a controversy between L and F, in the absence J^^^ 
of any evidence on the subject, the presumption is that the Ferguson 
order in favor of L was first given. & als. 

10. To a bill filed by an assignee of a chose in action, if the assign- 

ment purports to transfer the whole interest of the assignor, 
and there is nothing in the pleadings and proofs to induce 
the belief that it did not really do so, the assignor is not a 
necessary party. 

11. If it appears aflBrmatively that a person, if made a party, 

would have been a mere formal party, against whom no de- 
cree would have been asked, and whose presence was not 
necessary for the protection of any of the defendants, the 
appellate court will not reverse a decree for his absence. 

On the lith of August, 1839, John Littlejohn sued 
out a subpoena in chancery from the clerk's oflBce of 
the Circuit Superior Court of Law and Chancery for 
the county of Henrico and city of Richmond, against 
J. C. Robinett, William W. Ferguson and the James 
River and Kanawha Company, returnable to the first 
Monday in October; which \^as returned as served 
on the Company; and that Robinett and Ferguson 
were not found, and were no inhabitants. At the 
October rules, Littlejohn filed his bill, in which he 
alleged, that on the 8th day of February, 1839, J. C. 
Robinett was indebted to him in the sum of $783.45, 
and on that day executed to the plaintiff his note for rgg 
the amount, payable on demand ; and at the same time 
drew an order on the James River and Kanawha 
Vol. xviri — 8 



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58 COURT OF APPEALS OF VIBGINIA. 

1867. Company, who were indebted to him as a contractor 
Term.^ on their canal for the amount of the note, with inte- 



~ rest from its date; which note and order are made 

James ' 

River exhibits with the bill. That the order was presented 
Kanawha without delay to the Company, but the account of 
Company Jiobinett with the Company not having been finally 
Little- settled so as to ascertain the precise sura due to him, 
^^ "* before the money was paid to the plaintiff another 
Little- order was presented to the Company from Kobinett, 
V. in favor of William W. Ferguson, for the full amount 
^ig. of the balance due from the Company to Robinett, 
which purported to be drawn also on the 8th of Feb- 
ruary, 1839, and it is alleged was drawn before the 
order in favor of the plaintiff. And the Company, 
not denying that they have in their hands funds of 
Robinett sufficient to pay the order, yet decline to 
pay the plaintiff, because of the claim set up by Fer- 
guson under the order in his favor. 

The bill further charged, that the order in favor of 
Ferguson was fraudulent, was given at a date subse- 
quent to that of the plaintiff, and as the plaintiff be- 
lieved and charged, without consideration. And as 
he has no acceptance of his order by the Company, 
and has no proof without a discovery from them, of 
the amount in their hands, and Ferguson is not an m- 
habitant of the county, the plaintiff is compelled to ask 
the aid of a court of equity. And making the Janes 
River and Kanawha Company and Ferguson parties 
defendants to the bill, he calls for a full answer from 
them, and that Ferguson be required to produce his 
order ; that the Company may be required to pay the 
plaintiff's claim out of the funds of Robinett in their 
hands; for all necessary accounts; and for general 
relief. 
On the 4th of December, 1849, an affidavit was 



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COUKT OF APPEALS OF VIKGINIA. 59 

made before the clerk of the court that Ferguson was 1867. 
not an inhabitant of this commonwealth ;Tand an order Term, 
of publication was made against him as an absent de- ~ 
fendant; and the proof of the publication was filed in River 
December, 1851. In June, 1850, a like order was Kanawha 
made against Kobinett; and the bill having been^^°^°y 
taken for confessed in February, 1840, against the Little- 
James River and Kanawha Company, on the 28th of ^^ 
November, 1851, the cause came on to be heard upon ^q"^' 
the bill taken for confessed as to all the defendants, v. 
including Robinett as one, and the court decreed, that & als. 
Robinett should pay to the plaintiff the sum of $783. 45, [^^ 

with interest from the 8th of February, 1839, until 
paid, and his costs. And it was further decreed, that 
the James River and Kanawha Company should ren- 
der before one of the commissioners of the court an 
account of the amount which was due, or to become 
due, from the Company to Robinett on the 22d day 
of August, 1839, the day when the subpoena institu- 
ting this suit was served upon them, with a statement 
of the claims upon the same amount at that time, and 
the name or names of the claimants, and the grounds 
and evidence upon which such claims rested, with any 
matters specially stated, &c. 

In February, 1852, the James River and Kanawha 
Company, by leave of the court, filed their answer, 
which is signed and sworn to by John Y. Mason, the 
then president' of the Company. They say, that 
owing to the death of William B. Chittenden, late 
Secretary of the Company, in whose charge the 
papeis relating to the matters referred to in the bill 
were placed, the Company wa^ not able to make a 
f^ll answer to all the allegations made in the bill. 
They admit that they were indebted to Robinett, on 
the 1st of August, 1839, in tha sum of $6,599.07; 



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60 COURT OF APPEALS OF VIRGINIA. 

1867. and that no part of that sum had been paid on the 
^^!^ 22d of August, 1839. And they say, that the whole 
~ of that sum was afterwards, on the 19th of October, 

River 1839, paid to William W. Ferguson. That it was 
Kanawha P^i^ ^^ ^^ assignment to him by Robinett of all the 
Company money due Kobinett by the Company. That the as- 
Little- signment could not be found among the papers pre- 
^ "* served in the olRce of the Company; and owing to 
^ohn *^® death of the then secretary, they cannot state 
V. what had become of it. But tbey believe it did exist, 
stsAa. and for proof refer to four papers filed with the answer. 
^'^] That it may be true that the note and order exhibited 
with the bill were made by Robinett, but they know 
nothing, and therefore can form no belief concerning 
the same. If made by him, they deny that the said 
order was presented at the office of the Company, or 
any notice of it given to the Company, previous to 
the presentation of the order of Ferguson. They 
deny that the assignment to Ferguson was given with- 
out consideration, or that it was executed at a date 
posterior to the date of the order alleged to have been 
given to the plaintiff. They do not know the precise 
date of Ferguson's assignment, but believe it was prior 
in date tc the plaintiff's; and as strong proof thereof, 
they refer to two of the papers filed with the answer, 
in which it is referred to as bearing date the 1st of 
February, 1839, seven days before the date of the 
said order. And having paid the whole sum due to 
Robinett on an assignment bearing date prior to the 
order of the plaintiiT, the Company ought not to be 
compelled to pay it over again. 

The papers referred to and filed as exhibits with 
the foregoing answer are: First — the final estimate 
for the work done by Robinett, on section 66 of the 
canal, showing that there was due to him on the 1st 



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COURT OF APPEALS OF VIKGINIA. t>l 

of August, 1839, the sum of $6,599.07; and a receipt 1867. 

attached, dated the 15th of October, 1839, of J. C. ^t^^ 

Robinett, by William W. Ferguson, acknowledging ~ 

the payment to him of that sura in full of all demands River 

against the Company on account of the work done on Kanawha 

that section. Second — a power of attorney from Company 

Robinett to Ferguson, dated the 3d of August, 1837, Little- 

by which Ferguson was authorized to act for him in ^^ 

his absence, sickness or death; and to demand and V*^^®" 
' ' jonn 

receive from the James River and Kanawha Company v. 
all moneys that might from time to time become due ^X^alT" 
to Robinett under his contract with the Company; [^^ 

and also to demand and receive the final estimate, to- 
gether with the whole amount of the retained twenty 
per cent, when the said section should be completed. 
On this papei is the following endorsement: R. Josiah 
C. Robinett to William W. Ferguson, 1st February, 
1839 — power of attorney and assignment. Third — a 
bond of indemnity from Ferguson to the Company 
with two sureties. This bond is dated the 15th of 
October, 1839, and recites that Robinett did by an 
instrument in writing, dated on the 1st of February, 
1839, transfer and assign the above mentioned moneys 
to Ferguson, and directed by his written order the 
saia Company to pay said moneys to Ferguson, which 
order Ferguson had presented and demanded pay- 
ment; that John Littlejohn claims a part of said 
money by an assignment from Robinett, and has in- 
stituted a suit in chancery against Ferguson, Robinett 
and the Company, and Ferguson had agreed to in- 
demnify the Company against the claims of Little- 
john, if the money is paid to him. And he binds 
himself to defend the suit and save the Company 
harmless. Fourth — the opinion of S. S. Baxter, the 
attorney for the Company, dated September 13th, 



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62 COURT OF APPEALS OF VIRGINIA. 

1867. 1839, in which he says, he had seen the assignment 

Octobpi* 

Term. ^^ Robinett to "W. W. Ferguson, and that Ferguson 
~ informs him that after this assignment Captain little- 

River John obtained another assignment of part of the same 
Kanawha claim. He refers to the fact that Littlejohn had insti- 
Con^)any tuted a suit to enforce his claim; but as there is no 
Little- restraining order, he expresses the opinion, that Fer- 
guson is entitled to the money, and it may be paid to 
^ohn^ him ; but recommends that the Company require in- 
V. demnity. The Fifth — is a letter from Ferguson to 
& ale. Colonel Thomas M. Bondurant, then a director of the 
^^] Company. This letter is dated Bent creek, 25th 
July, 1839, and is directed to Colonel Bondurant, in 
Buckingham, where he resided. The wiiter says: I 
enclose the within paper, signed by J. C. Robinett, 
by which you will see he has given me a power of at- 
torney to draw his final estimate en station 6Q of the 
James River Canal; also his reserved twenty per cent. 
You will also find a transfer and assignment of the 
same; upon which two papers the president and direc- 
tors will no doubt be safe against him by my receipt 
for the money due him at this time. He says: I am 
bound for him to a considerable amount. He requests 
Colonel Bondurant, if it is too much trouble for him 
to undertake, to let him know when the next meeting 
of the board takes place. He wishes the money re- 
tained^ by the board until it can be paid to him. 

Commissioner Davis, in March, 1852, made his re- 
port. He had no evidence before him but that filed 
in the cause. He refers to the papers hereinbefore 
mentioned, and upon the evidence of Mr. Baxter's 
opinion, and the recitals in the bond, he reports that 
Ferguson did have an assignment from Robinett of 
the whole amount due to him by the James River and 
Kanawha Company; and that this assignment bore 



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OOIJRT OF APPEALS OF VIRGINIA. 63 

date the 1st of February, 1«39. He reports that the 1867. 

Octobfii* 

only claims upon the fund is this assignmoDt to Fer- Term. 
gosoD and the order in favor of Littlejohn, dated the ~ 
8th day of February, 1839, which order did not appear River 
to have been accepted by the Company. Kanawha 

The cause came on to be heard on the 23d day of Company 
February, 1853, upon the papers formerly read, the Little- 
answer of the James Kiver and Kanawha Company, ^^ 
with the replication thereto, and the report of Com- ^Jj^^^' 

missioner Davis, to which there were no exception; v. 

, - , , . « . . . 1 . , 1 . . Ferguson 

when the court being of opinion, that the assignment & als. 

to Ferguson not being produced, the refeience to it 
in the opinion of Mr. Baxter and in the bond of in- [60 

demnity, if admissible evidence, was not sufficient to 
establish the existence and date of the assignment. 
And being further of opinion, that the order in favor 
of Littlejohn operated as an assignment of that much 
due from the Company to Robinett, and that the pay- 
ment by the Company to Ferguson after notice of 
that order was illegal and Toid, it was decreed, that 
the Company should pay to Littlejohn the principal 
money, interest and costs decreed against Robinett by 
the decree of the 28th of November, 1852, viz. : 
$783.45, with interest thereon from the 8th of Feb- 
ruary, 1839, until paid, and his costs. From this de- 
cree the James River and Kanawha Company obtained 
an appeal to this court in May, 1853. 

On the 12th of November, 1853, Ferguson applied 
by petition to the circuit court, in which the decree 
had been rendered, to be permitted to enter his ap- 
pearance and file his answer, which he tendered. 
And the conrt made an order, that his said petition 
be granted, unless the plaintiff shows cause to the 
contrary on or before the next term of the court, 
after being served, himself or his counsel, with a copy 



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64 COURT OP APPEALS OF VIRGINIA. 

1867. of this order. And on the 9th of May, 1859, James 
Term/ Lyons, Esq., as counsel for Littlejohn, acknowledged 



— service of the order. 

James 

River On the 9th of June, 1866, the court made anothei 
Kanawha decree, that it appearing that the plaintiff, by coun- 
Company g^j^ jjg^ acknowledged service of the decree entered in 
Little- this case on the 12th of November, 1853, and having 
^^ ^' failed to show sufficient cause to the contrary, leave 
^ohn" ^^ given the defendant, William W. Ferguson, to file 
V. the petition and answer mentioned in said decree; to 
^&&^!^ which answer the plaintiff replied generally. And 
thereupon the cause came on to be heard, &c,, and it 
was decreed, that it be referred to one of the com- 
missioners of the court to ascertain and report whether 
61] there was any such assignment as that mentioned in 
the letter to Colonel Bondurant; whether the letter 
of Ferguson of the 28th of July, 1839, to Colonel 
Bondurant, or the assignment referred to therein, was 
laid before said company, or its duly authorized offi- 
cer, prior to the 22d day of August, 1839; whether 
between said dates any meeting of said Company was 
held, and if held, whether Colonel Bondurant was 
present; with any matter specially stated deemed per- 
tinent by himself, or which might be required by the 
parties to be so stated. 

On the 10th day of January, 1867, another decree 
was made, directing the commissioner to enquire and 
report: First. — Whether the assignment, if any, by 
Robinett to Ferguson was fair, and made for valuable 
consideration or not. Second. — If it was fair, and 
founded on valuable consideration, how far the rights 
of Ferguson were affected by his failure to gi^e notice 
to the James River and Kanawha Company of the 
existence of his order, until after Littlejohn had given 



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COUBT OF APPEALS OF VIRGINIA.' 65 

notice of the order under which he claims, if such was 1867. 
.1, £ A. October 

tne tact. Term. 

Ferguson, in his petition, set out the grounds on ~ 

which he asked that he might be admitted a defen- Kiver 

dant, and that the decree in favor of Littlejohn might Kanawha 

be reversed. In his answer, he denied the allegations Company 

in the bill as to the date and consideration of the as- Little- 

signment to him. He averred that the assignment 

was dated on the 1st of February, 1839, and was "^q^^®' 

made on the same day. That the consideration of v. 

Fercuson 
the assignment was not fraudulent, but was valuable & ale. 

and bona fide. That Robinett was indebted to him 
at the time for money lent and advanced to him , or paid, 
laid out and expended for him, and also for certain 
liabilities which he had incurred foi Robinett, as his 
security and for his benefit. That Robinett was a man 
of limited means; and to enable him to execute his 
contract on the canal, had obtained the defendant's 
aid in supplying him with money, and becoming his 
security, and in otherwise pledging his credit for his [62 
benefit. That from the first time Robinett applied to 
him for aid as aforesaid, he pledged himself to reim- 
burse the defendant, and make him safe out of the 
money he was to receive from the Company. That 
the defendant enclosed the assignment and power of 
attorney to Colonel Bondurant, filed, as defendant is in- 
formed, with the answer of the Company. That this 
was done to enable Colonel Bondurant to present the 
defendant's claims to the Company; and he believes 
it was done. That he believes his claim was not only 
prior in date to Littlejohn' s, but was first presented 
to the Company. 

The defendant insists, that he ought not to be pre- 
judiced by the accidental loss of the assignment by 
the Company. He avers, that on receiving the 
Vol. XVIII — 9 



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06 COURT OF APPEALS OF VIRGINIA. 

1867. money^ he applied it to payments due to himself from 
Term.^ Robinett, and to payments for which he was liable 



~ for him; and took in the bonds and other evidences 

James ' 

River of debts, and obtained receipts and vouchers for a set- 

Ka^awha^l^™®^^? and he afterwards had a settlement with 

Company Robinett, and considered the transaction entirely 

Little- ended. The fact that no process had been served 

^^ °' upon him, though he lived in Virginia until the year 

^*hn^ 1843, and the confidence in the superiority of his 

V. claim over that of Littlejohn, led him to suppose that 

^S^\b^ the suit had been abandoned, and he was entirely 

taken by surprise when informed of the decree that 

had been made in the case. 

The defendant further insists, that the laches of the 
plaintiff in prosecuting his suit should defeat him. 
That if process had been served upon the defendant 
during the lifetime of Chittenden, the secretary of the 
Company, he could have proved his assignment, and 
the notification of it to the Company. He could also 
have pioved the due application of the money which 
he received from the Company to the payment of 
63] debts due to him from Kobinett, or for which he w^as 

responsible for him; but that in November, 1844, his 
house was burnt, and his papers destroyed in the fire, 
so that he could not now produce his receipts and 
vouchers. That the negligence and laches in serving 
the defendant with process was the more reprehensi- 
ble, as he was in Virginia when the suit was brought, 
and did not remove from the State until 1843. 

Both the petition and the answer was sworn to be- 
fore a justice of the county of St. Louis, in the State of 
Missouri. And the plaintiff objected to the answer, 
because the defendant has not appeared openly in Vir- 
ginia, but is still a non-resident. 

The commissioner returned his report dated Feb- 



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COTJKT OF APPEALS OF VIRGINIA. 67 

ruary 22d, 1867. His report is based upon the papers 1867. 
in the cause, and a certificate of William P. Munford, Term. 



the secretary of the James Kiver and Kanawha Com- ~ 

James 

pany, containing extracts from the record of the pro- River 
ceedings of the Board of Directors. From these it KaSawha 
appealed that meetings of the board were held on the Conapany 
7th, 8th, 9th, and 10th of August, 1839, at all of Little- 
which Colonel Bondurant was present; and at the ^^ 
meeting on the 9th, the record says: Several liens ^^^^' 
npon the final estimate of J. C. Eobinett, on section v. 
66, being exhibited, and the said estimate not being ^a^° 
returned, on consideration — ordered: That on the re- 
turn of said final estimate, pay m ent thereof be withheld 
by the secretary till further order of the board. On 
the 16th of September, the order was made directing 
the payment of the money to Ferguson. Mr. Mun- 
ford further stated, that he had examined the records 
of the Company, and had found no reference to the 
assignment by Robinett to Ferguson of his estimates 
for work done on section 66. He presumed the en- 
dorsement by Mr. Chittenden on the power of attor- 
ney was the daw at which he received notice of its 
execution. All the docimients of so early a date as 
the paper in question were destroyed by fire. 

The commissioner reported: First. — That there [64 
was such an assignment as that mentioned in the let- 
ter to Colonel Bondurant. Second. — That the assign- 
ment was laid before the Board of Directors of the 
Company prior to the 22d of August, 1839. Third. — 
That from the answer of the Company and Ferguson, 
the assignment was fair, and made for valuable consid- 
eration; and there is no affirmative evidence to sustain 
the charge of fraud. Fourth. — That there was no evi- 
dence or grounds to infer that Littlejohn's order was 
presented to the Company before that of Ferguson. 



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68 OOUET OF APPEALS OF VIRGINIA. 

1867. And that the assignment to Ferguson bore date on the 
Term, ^^t of February, 1839. The commissioner further re- 

~ ports, that the receipt of Ferguson to the Company is 

River as attorney for Robinett, under the power of attorney 
Kanawha &^^^° to him, dated 3d of August, 1837, and purports 
Company ^ ^^ jj^ fyj^ qI g^Q demands against the Company under 
Little- or growing out of Eobinett's contract ^ith them for 
^^ ^' the construction of section 66 of their canal, and is 
Little- signed J. C. Robinett, by William W. Ferguson. And 

V. he submits the legal inference from and effect of this 
Ferguson . ^ x ^i 

& als. receipt to the court. 

The plaintiff excepted to the report of the commis- 
sioner: First. — Because the report is not only not sus- 
tained by the evidence in the cause, but is in direct 
opposition to it. Second. — Because it is in opposition 
to the principles of la'v and practice, well settled in 
the court of chancery. Third. — That Ferguson hav- 
ing received the money from the Company, as attor- 
ney for Robinett, cannot claim to have received and 
to hold it as creditor. 

The cause came on tc be finally heard on the 13th 
of March, 1867, when the court overruled the plain- 
tiff's exceptions to the commissioner's report, and con- 
fiimed the report, and decreed, that the decree of the 
23d of February, 1853, be set aside; and that the 
plaintiff's bill be dismissed as to the James River and 
Kanawha Company and William W. Ferguson, with 
their costs. From this decree Littlejohn obtained an 
appeal to this court. 
66] Myers, for the James River and Kanawha Conpany 

and Ferguson, insisted: 

1st. That Robinett was a necessary party, the plain- 
tiff claiming as his assignee; and though his name is 
in the subpoena, he was not made a party by the bill. 

2d. That the evidence was sufficient, under the cir- 



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COUBT OF APPEALS OF VIRGINIA. 69 

cumstances, to sustain Ferguson's claim under the as- 1867. 
signment to him. Or, if it was not sufficient to satisfy Tenn/ 



the conscience of the chancellor, it \i as at least of such — 

' James 

a character that the court should not have decided River 
agaiost it without ordering an issue before a jury; and Kaiiawha 
this specially as both commissioners had, by their re- Company 
ports, given Ferguson priority over Littlejohn; and Little- 
Dans' report had not been excepted to. ^^ 

3d. That the court erred in its first decree in treat- ^^}'^^ 

John 

ing Littlejohn' s claim as fully proved by the note and v. 
order which he filed. The James Ei\er and Kanawha ^^!^^ 
Company make no admission that these papers were 
made by Robinett; but they put the plaintifif on strict 
proof. And the proceeding being against Robinett 
and Ferguson as absent defendants, the law requires 
that proof shall be taken of the plaintiff's demand. 
See Tate's Dig. p. 58, 59, § 2. It was moreover 
necessary that the plaintifif should prove that his order 
ivas the first presented or notified to the Company. 
2 Story's Equ. Jur. § 1035a; § 1047, § 1057; Lewin 
on Trusts 604, 615; Judsan v. Corcoran^ 17 How. U. 
8. R. 612; Moore's ex'&r v. Holcomhe, 3 Leigh 597. 

4th. The application by Ferguson to be permitted 
to file his answer and show error in the decree in favor 
of Littlejohn is under the act. Code ch. 171, § 13, p. 
045. This act makes no reference to the case of an 
appeal, and there is no exception in the statute, whilst 
the reasons apply just as forcibly to a case where there 
has been an appeal by another party as where no ap- 
peal has been taken. He referred to Newcomh v. 
Drummond^ 4 Leigh 57. That was a case intev partes ; [66 

and the reason is stronger in this case, in which Fer- 
guson was no party in the appeal. The cases cited by 
the counsel on the other side have reference to the dis- 
tinction between interlocutory and final decrees. 



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70 COURT OF APPEALS OF VIKGINIA. 

1867. 5th. Ferguson presented his petititon to the couit 
Term/ ^ ^^^ same year in which the decree was made, and 



~ the court then made the ordei allowing him to appear 

River and answer, unless the plaintiff should show cause 
Kanawha against it. This was the commencement of the pro- 
Company oeeding, and therefore was not baried by the statute. 
Little- 6th. The objection to the answer on the ground that 
^^ ^' Ferguson did not appear openly in the State is based 
^ohn "P^^ ^^^ ^^^^ ^^^^ *^® provision of the act in relation 
V. to foreign attachments applies to this case. The Code 
Tf3^^ of 1860, p. 651, § 7, relates to attachments ; but here 
the proceeding is not under that act, but under the 
act in relation to absent defendants. 

7th. Ferguson is not estopped by the form of his re- 
ceipt. He is shown to have been using his utmost ex- 
ertions to get the money for himself. And the Com- 
pany and the plaintiff understood him to claim it as 
assignee. 

Lyons^ for Littlejohn, insisted : 
1st. Kobinett was not a necessary party. That in 
a suit by an assignee against the debtor, if the assign- 
ment is of the whole interest, and there is no contro- 
versy between the assignor and assignee, the assignor 
is not a necessary party, whether at law or in i3quity. 
Lmnhert v. Nanwy^ 2 Munf. 196; Mayo v. Mwrchie^ 
3 Id. 358; Newman n^ Chapman^ 2 Rand. 93. Eob- 
inett was named in the subpoena, though his name was 
omitted in the bill ; and he was proceeded against by 
publication as a party, and was so treated throughout 
the case. But if Robinett was not a party, and the 
67] treating him as guch was an error, it is not an error 
that Ferguson can object to. He comes in as an ab- 
sent defendant to have any injustice done to him cor- 
rected; and he cannot be heard in this court upon the 



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COURT OF APPEALS OF VIRGINIA. 71 

first appeal. Heffeman v. Grymea^ 2 Leigh 512; 1867. 
PlMt V. Hawlwnd, 10 Leigh 507. ^em.' 



2d. The act, Code p. 708, § 13, authorizes a petition ~ 

by an absent defendant for a re-hearing. Is it the River 
case in any nation or country that a foreigner may de- Ka^wha 
feDd a suit without rendering his person or property Company 
amenable to the judgment of the court ? And yet Little- 
here is a party living in Missouri who, remaining ^^ 
abroad, sends his petition and answer, to be filed in ^Jj^^^" 
his absence. v. 

3d. The decree of 1853 cannot be questioned. The ^3^ 
act says, if the party appears in five years, he may 
petition. This party comes in 1853, and gets leave 
to file his petition upon giving notice; and no step is 
taken until 1859, and no order made until 1866. The 
petition did not stop the running of the statute; that 
could only be done by the decree. Ershine v. Henry ^ 
9 Leigh 188; 1 Greenl. Evi. p. 147, § 74; 1 Starkie's 
EvL p. 34; 2 Cow. & Hill, notes p. 293, note 298. 

4tb. It was noTj competent to the Circuit Court to 
take cognizance of any matter affecting the decree of 
1853, whilst the appeal from that decree was depend- 
ing in this court. A final decree having been rendered 
in the cause, and an appeal taken from that decree, it 
was no longer a pending cause in the Circuit Court, 
and could never be placed again upon its docket, ex- 
cept by the decree of this court reversing the final de- 
cree. Harvey v. Brcmson^ 1 Leigh 108; Hefeman^s 
admW V. Grymes^ 2 Leigh 512; TennenVs heirs v. 
rations, 6 Id. 196. 

5th. The evidence upon which the commissioner le- 
IK>rted in favour of Ferguson, and upon which the 
court below based its decree, is not competent evi- 
dence; and if competent, does not make out his case. 

EivBs, J. Concurring in the judgment of the court [68 



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T2 OOUET OF APPEALS OF VIRGINIA. 

1867. in these cases, I yet deem it proper to indicate my 

Term/ dissent from so much of the opinion as sustains the 

j^^^g jurisdiction upon Ferguson's petition for a le-hearing. 

River When this petition was presented to the court on the 

Kanawha l^th of November, 1853, it Tvas net received, but the 

Company court made an order that the petitioner's application 

Little- be granted, unless the plaintiff show to the contrary 

^ ^' on or before the next term of this court, after being 

Little- served himself or his counsel with a copy of this order. 

V. This service was not had till May 9th, 1859 — more 

&Sb!^° than five years after the date of the decree. The 

question therefore arises, whether this is a compliance 

with the requirement of the Code, ch. 170, § 13, p. 

708. 

It is material to enquire, in the first place, whether 
the condition imposed by the court upon the reception 
of the petition, and the grant of its prayer, was proper 
and regular. The case had been cor eluded in that 
court, and an appeal had been taken and was then 
pending in the Court of Appeals. The petitioner did 
not place himself personally in the jurisdiction of the 
court, but appeared by counsel through petition and 
answer qualified to and certified in another State; it 
was, therefore, eminently proper in my view, that the 
court, before receiving or entertaining the petition, 
should place the party under a rule to notify the plain- 
tiff or his counsel of his proceedings, so that he should 
have notice of the attempt to re-open the case; and 
make such opposition thereto, or ask such conditions 
of the non-resident as to security for costs, as should 
comport with his views and interests. There was yet 
abundance of time for this step; and it was clearly in 
the discretion of the court to adopt this precaution, 
while the interest of no party could have been jeopar- 
dized by it; and the court might be tetter prepared 



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CX)URT OF APPEALS OF VIBGINIA. 73 

upon the service of the order to take its course. This, 1867. 
of course, would have been different if there had been Term.^ 



anv danger of an efflux of time within which the ~ 

^ James 

statute required action of the absent defendant. River 

It, of course, devolved upon the petitioner or his KarSwha 
counsel to execute this order ; until he did so, he was Co^pai^y 
not in court. His petiton was not filed, received or Little- 
entertained ; nor any leave given for the filing of his ^° 
answer, or the re-hearing of the cause. These papers h^^^^' 
were yet in the custody of counsel, and could not be v. 
the basis of the court's action until its condition was &s^^ 
fulfilled. Under such circumstances, I cannot consider [^^ 

the terms of the statute complied with until the 9th 
day of June, 1866, when the petitoner acquainted the 
court with the service of its order, and had leave for 
the first time *'£o file his petition and answer." At 
that time he was precluded from this resort by the 
statutory bar. 

I do not think this view at all in conflict with the 
cases of Overstreet v. Marshall^ 3 Call 192, and Wil- 
liamson v.Gayle db alsj 4 Gratt. 180. Both of these 
cases turn upon the terms of the acts of assembly for 
granting of writs of error and supersedeas in the one 
case, and of appeals in the other. In the former it 
was held, that the supersedeas was granted at the date 
cf the judge's crder awarding it; and was not barred, 
though the tarii did not issue until after five years ; and 
in the latter, that the appeal dates from its allow- 
ance, and was not affected by a failure to give bond 
within five years. These decisions may well stand 
upon and be justified by the literal terms of the laws 
in question ; but they are not authority to show that 
we are to consider a party as having petitioned for the 
le-hearing of a case when he was virtually told by 
the court that his petition could not be received nor 

Vol. XVIII — 10 



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74 COUET OF APPEALS OP VIEGINIA. 

1867. his application granted, save upon a condition, (and 
Term/ ^^^^ ^ most reasonable and proper one,) which he was 



~ therefore bound to observe and fulfill. I, therefore, 

River conclude that it was too late under the statute to 
Kaiiawha ^^^®r the said order of 9th of June, 1866; and the 
Company ^q^^ ^f ^]^q defendant Ferguson is not aided by his 
Little- answer in that cause; if, indeed, it shall be allowed 
^^ ^' to weigh as responsive ; upon which 1 do not pass. 
^ohn" -^^^ ^^ ^ ^^ wrong in this position, I hold this de- 
V. fendant concluded by his laches in prosecuting his 
^^° remedy under our statute, under the authority of An- 
'^^] derson v. Lively^ 6 Leigh 77. True, the laches here is not 
so great or of such duration as in that case, but is under 
circumstaTices calculated to make it as inexcusable. 
His co-defendant, the James River and Kanawha 
Company was, by its appeal, here se'eking to attain 
the same object that a re-hearing was designed to ac- 
complish for him. Shall he then be permitted to 
avail of the two resorts ? and is not the implication 
strong that he was by his delay abandoning his appli- 
cation below and relying on the contest waged here 
for him , in the name of this Company, which we have 
seen has no substantial interest in this controversy ? 
But if this delay be not the more indefensible on this 
account, I think the statute of limitations always 
affords by analogy and legislative prescription what 
the court denounces as laches. 

On these two grounds, [ think, the court belo\\ 
erred in re-hearing this cause. 

JoYNES, J. I shall first dispose of the case of LU- 
Uejohn V. Ferguson <& als. 

There is nothing in the objection that the Circuit 
Court could not entertain Ferguson's petition for re- 
hearing, while the appeal of the James River and Ka- 



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OOUKT OF APPEALS OF VIRGINIA. 75 

nawha Coir pany was depending. The statute (Code 1867. 
ch. 170, § 13) which authorizes an absent defendant Term/ 
who has not appeared, &c., to petition to have the ~T 
case re-heard, makes no exception of cases in which an River 
appeal has been taken. It is true the appeal was Ka^wha 
really prosecuted for Ferguson's benefit. But on the Co^^pany 
appeal advantage could be taken only of errors in the Little- 
record as it stood at the time of the decree complained ^^ 
of, while Ferguson had the right, under the statute, kittle- 
to file his answer and introduce evidence so as to v. 
make, if he could, a different case. It is true, that ^^,^ 
after the appeal there 'w as no longer a case pending [^^ 
in the Circuit Court. But that was not for the rea- 
son that an appeal had been taken, but for the reason 
that the case had been ended in that court by a final 
decree. But the original papers remain in the Circuit 
Court after an appeal, and there is no difficulty in re- 
instating the case on the docket when a petition for 
re-hearing is filed. 

The appeal, however, in such a case will not be dis- 
missed upon the filing of the petition for re-hearing, 
as the decree complained of can only be altered or set 
aside on the re-hearing. Piatt v. Howlandy 10 Leigh 
507. If on the re-hearing the decree, or so much of 
it as is the subject of appeal, is wholly set aside, a dis- 
mission of the appeal, will, as a general rule, follow 
as a matter of course. But if an appeal from the de- 
cree on the re-hearing should be taken before the ap- 
peal from the original decree has been dismissed, the 
appellate court may refuse to dismiss the appeal, inas- 
much as the decree on the rehearing may perhaps be 
reversed on the appeal taken from it. In this in- 
stance, there has been no motion to dismiss the appeal 
from the original decree, so that both appeals are now 
before us for decision. 



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76 OOUET OF APPEALS OF VIBGINIA. 

1867. It was essential to the jurisdiction of the court upon 
Term/ *^® proceedings for a re-heaiing that they should ap- 



~ pear to have been duly instituted within the time pre- 

River scribed by law. And as was held by this court in the 

Kanawha ^'^® ^^ ^ ^^^^ ^^ review, it was incumbent on Ferguson 

Company ^q show this affirmatively, though no objection were 

Little- made that the proceedings were too late. Shepherd 

^*'^"* V. Lariie, 6 Munf. 529. 

Little- It ^3^s suggested at the bar that the language of 
V. the statute requires that the proceedings shall be con- 
^^^ eluded, as well as commenced, within the time limited. 
'<^2] But such a construction would be inconvenient and 

harsh in its results, would be inconsistent with what 
is required in analogous cases, and is not demanded 
by the language. The language is, that the absent 
defendant may, within the time limited, '* petition to 
have the case re-heard, a^id may plead or answer, and 
have any injustice in the proceedings corrected." 
This language is satisfied when the absent defendant, 
within the time limited, ''petitions to have the case 
re-heard." But the question remains, and is impor- 
tant in this case, whether it is enough that he should 
present his petition to the court within the time limi- 
ted, or must he go further within the time limited, 
and obtain leave of the court to file his petition, upon 
notice to the adverse party ? 

It seems to me that the absent defendant petitions 
to have the case re-heard ''within the terms and 
within the meaning of the statute" when he presents 
his petition to the court. And, for this purpose, it 
matters not whether he is allowed to file his petition 
at once as matter of right, or whether he is required 
to obtain leave of the court to do so after the notice 
to the adverse party. In either case he has begun the 
proceeding. He ought not to lose the benefit of this 



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COURT OF APPEALS OF VIEGINIA. 77 

diligence because he cannot obtain the sanction of the 1867. 
court within the time prescribed. He may fail to do Term/ 

this without any fault of his own — as, for example, ~ 

from the failure of the court to sit. The language of River 
the statute requires that the absent defendant shall do KacSwha 
an act within the time; namely, that he shall '' peti- Company 
tion to have the case re-heard;" it does not require Little- 
anything more. If we say he must do more, we go ^^ 
beyond the statute, unless indeed, we can say, that a ^^^^- 
party does not petition the court until the court agrees v. 
to entertain his petition. ^^^^ 

Upon the view which I take, the degree of diligence [73 

required by this statute, is certain and definite, and 
is the same in all case. But if leave of the court rt ust 
be obtained after nctice to the adverse party, the dili- 
gence to be used to avoid the bar will be different in 
different cases, in proportion to the greater or less time 
requisite for giving the notice and getting the leave. 
If notice to the other party is necessary, the court has 
no discretion to dispense with it; and if it had, it 
surely ought not to depend on the discretion of the 
court whether the party shall be in time or not. 
Suppose the court, upon hearing the application, re- 
fuses to give the leave, and the party is obliged to ap- 
peal. The time may run out before he can obtain the 
leave by the judgment of the appellate court. Is he, 
in such a case, to be turned out of court because he 
has not obtained the leave of the court T^ithin the 
time, when he has been doing his utmost for years to 
obtain it ? Or. suppose the party should fail to get 
the leave of the court in consequence of the failure 
of the court to sit. Is the delay in such a case to be 
inputed to him ? This particular difficulty might be 
remov^ed by holding that it is the notice to the adverse 
party, and not the leave of the court, which deter- 



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78 COUKT OF APPEALS OF VIRGINIA. 

1867. mines the application of the statutory bar. But this 
Term/ construction is not sustained by the language of the 



— statute, or by the analogies of the law in like cases, 

River and is liable to most of the ojections which apply to 

Kanawha ^^® <^^ll®'*- 

Company The view which I have been urging makes the con- 
Little- struction of this statute conform to the analogies in 
^^ "' like cases. Thus, imder a former law, it was pro- 
Little- vided that no supersedeas, &c., should be ''granted'' 
V. after five years. It was held, that the order allowing 
^^Ib^ a supersedeas was the commencement of proceedings, 
so as to avoid the bar of the statute, though the super- 
sedeas bond was not given, and of course the superse- 

74] deas was not issued within the five years. Over street 

V. Marshall & al, 3 Call 192. By the ^t of 1830-31, 
it was provided, that no petition preferred to the 
Court of Appeals, or to any judge thereof, should be 
received or allowed unless preferred within five years. 
It was held, that the bar of the statute was avoided 
by the presentation of the petition to the court or judge 
within five years, though the appeal, &c. , should not be 
allowed within that time, or though it should be allowed 
on condition that a bond should be given, which was 
not given in that time. Williamson v. Gayle^ 4 
Gratt. 180. And under the old law first alluded to, 
the court went further, and held, that although an 
order allowing a supersedeas had not been made with- 
in the five years, yet as a petition had been presented 
which, through inadvertence in the court, had not 
been acted on until after the time had elapsed, the 
limitation of the statute did not apply. PugJCs &D^or 
V. Jones, 6 Leigh 299. 

The absent defendant is proceeded against without 
notice by the service of process, and, it may be, with- 
out any actual knowledge of the suit. The court can 



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COTTET OF APPEALS OF VIHGINIA. 79 

make no personal decree against him that will be bind- 1867. 

ing upon him. 3 Gratt. 98; 9 Ho\\. U. S. R. 336; ^e^"^ 

24 Id. 195. When becomes forward to controvert ";; 

James 

what has been done behind his back, as it were, and River 
offers to submit himself to the jurisdiction of the Kanawha 
court, his proceeding should not be treated with dis- Company 
favor, but the contrary. Why, then, should we, by Little- 
construction, exact conditions, from him not plainly ^^ 
required by the language of the statute, and not con- ^^^^^' 
formable to what is required in analogous cases ? v. 

Ferguson, therefore, commenced his proceedings in ^&^al8^° 
time, and saved the bar of the statute. But after do- 
ing so he delayed for more than five years to give 
notice of them to Littlejohn, and then took no other 
step until seven years later. This would appear to hav e 
been great laches, and might, in the absence of expla- 
nation, have authorized the Circuit Court to dismiss [75 
the proceedings, if a motion had been made to that 
effect. Anderson^ 8 adm^r v. Lively^ 6 Leigh 77. But 
the court, in that case, would have acted not on the 
grourd that the proceedings were barred by the stat- 
ute, but on the ground of laches in their prosecution, 
and the action of the couit would have depended on 
its discretion, under all the circumstances. William' 
son V. Gayle^ 4 Gratt. 180. No motion to dismiss the 
proceedings on this ground was made in the Circuit 
Court, and there is nothing to show that this ground 
was shown for cause when Littlejohn^ showed cause in 
1866 against filing the petition and answer. As Fer- 
guson has not had an opportunity of explaining his 
delay, I do not think this court ought now to dismiss 
his pioceedings on that ground. The delay was not 
80 great but that the court can see that it might per- 
haps have been satisfactorily explained. The case 
must therefore, be considered upon its merits. 



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80 COURT OF APPEALS OF VIRGINIA. 

1867. Littlejohn and Ferguson each claimed to have an 
Term. Older drawn by Robinett on the James River and Ka- 



— nawha Company : that of Littlejohn being for $783, 

River and that of Ferguson being for the whole balance due 

Kaimwha from the Company to Robinett. Littlejohn's order, 

Company ^hi^h he filed with his bill, bears date the 8th day of 

Little- February, 1839, while Ferguson alleged that his order 

^^ "* bore date the first day of the same month. It did 

^* hn ^^^ appear which of these orders was first presented 

V. or made known to the Company, so that the question 

^^s^^ as to the priority of right between them depended on 

the priority of date alone. 

The answer of the James River and Kanawha Com- 
pany disclaimed all knowledge as to the order of lit- 
tlejohn, but did not dispute its genuineness, or ex- 
pressly call for proof of it. It was treated as genuine 
by the commissioner and by the court, and pr^^of oJ it 
was not insisted on by the Company. Ferguson did 
not dispute the genuineness of Littlejohn's order, or 
76] call or proof of it, in his answer or before the commis- 
sioner, and it was treated as genuine throughout the 
case. Under these circumstances, it was too late to 
make the objection in this court to the want of proof 
of Littlejohn's order. Anderson cfe al. v. De Soer^ 6 
Gratt. 363. Besides, the bill alleges that the order 
was '* drawn" by Robinett, and this was suflScient 
under the Code (ch. 171, § 38) to dispense with proof 
of the signature to the order, in the absence of a de- 
nial of it under oath, even though proof had been ex- 
pressly called for. This provision of the code fur- 
nishes a rule of evidence, and it applied to this case, 
though the bill was filed before the Code went into 
operation. SomerviUe v. Wimbish^ 7 Gratt. 205; 
Usher'' 8 heirs v. Pride^ 15 Gratt. 190. It must, 
therefore, be taken as a fact in the case, that Little- 



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OOtTBT OF APPEALS OF VIKGINIA. 81 

John held an order from Robinett bearing date the 8th 1867. 
day of February, 1839. Term/ 

The bill, after alleging that the plaintiff held an — 

Older dated the 8th day of February, 1839, and that River 
he had presented it to the Company, proceeded to Kanawha 
allege, that another order was presented to the Com- ^^^pany 
pany from Robinett, in favor of Ferguson, for the Little- 
whole balance due from the Company to Robinett, ^^ 
and then uses these words, ^* which [that is, Ferguson's ^Jj^^®' 
order] purports to have been drawn also on the 8th v. 
day of February, 1839, and it is pretended was drawn &^^^ 
before the order in favor of your orator." The 
answer of the Company did not pretend to any actual 
knowledge as to Ferguson's order. Ferguson, in his 
answer, alleges that the statement of the bill in rela- 
tion to the date of his assignment is untrue and then 
proceeds thus: *'The date of the said assignment to 
this respondent was the 1st of February, (not the 8th 
of February,) 1839, and the assignment was actually 
made on the said 1st day of February, when it bore 
date." It was alleged that this order had been left 
in the possession of the James River and Kanawha 
Company, and had been lost. 

The bill called for no discovery as to the date of [77 
Fer^son's order. The allegation of the ans\\er in 
respect to the date of Ferguson's order was affirma- 
tive matter, not responsive to any allegation of the 
bill, and the burden, therefore lay on Ferguson to 
prove it. 2 Rob. Pract. (old) 330, and cases cited; 
Clarke v. White^ 12 Peters R. 178; opinion of Green, 
J. in Taylor v. Moore^ 2 Rand. 563 ; Leas^ ex* or v. 
Eidson^ 9 Gratt. 277. 

The ease of Ferguson, therefore, derives no support 
from his answer, and must depend upon the evidence. 
There is no direct evidence in the case as to the date 
Vol. xvrii — 11 



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82 OOUBT OF APPEALS OF VIRGINIA. 

1867. of Ferguson's order, nor is there any direct evidence 

Tenn.^ even of its existence. The commissioners to whom 

"T the case was referred, relied upon several facts and cii- 

River cumstances, which they considered sufficient to estab- 

Kanawha lish that Ferguson had an order from Robinett for the 

Company ^^ole balance due hun by the Company, and that it 

Little- bore date on the 1st day of February, 1839. I shall 

^ * ' not consider the question, whether Ferguson had an 

^hn" ^^^^^ *^ ^) because it is immaterial whether he did or 

V. did not have one, unless it was of prior date to Little- 
FGitnson 
Aals. John's. I shall confine myself to an examination of 

the grounds which are relied on to establish that the 
order of Ferguson bears date on the 1st of February, 
1839, or before that of Littlejohn. 

The first thing relied on is the opinion given by Mr. 
Baxter as counsel for the James Kiver and Kanawha 
Company, in favor of Ferguson's priority over Little- 
john, and of the propriety of paying the money to him 
upon his giving a bond of indemnity. The production 
of this paper may prove that Mr. Baxter gave siich an 
opinion, and that he foimded his opinion on the hy- 
pothesis of a certain state of facts, but it can certainly 
prove no more. Even if the facts on which the 
opinion was based had been stated as being within the 
knowledge of Mr. Baxter, the statement of them in 
78] this paper would not be evidence of them. But it is 
evident from the opinion, that Mr. Baxter had never 
seen Littlejohn' s order, (the bill had not then been 
filed,) and that he relied upon Ferguson's representa- 
tion to him that his order was prior to Littlejohn' s. 

The next thing relied upon is, the recital in the 
bond which Ferguson gave to the Company on the 
15th day of October, 1839, on receiving from them 
the balance due to Eobinett, and by which he under- 
took to defend Littlejohn' s suit, and to indemnify the 



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COURT OF APPEALS OF VIRGINIA. 83 

Company against Littlejohn's claim. This bond re- 1867. 
cites as a fact, that Robinett made the transfer to xeim' 



Ferguson by an instrument of writing bearing date ~ 

the 1st day of February, 1839. River 

The production of this bond may prove that the Ka^wha 
Company paid the money to Ferguson on the ground Company 
that his crdei was believed to be of prior date to Little- 
Littlejohn's; or, if you please, on the ground that his ^^ 
order was believed to bear date on the Ist day of Feb- ^^^|^' 
roary, but it does not prove that in point of fact it did v. 
bear that date, or any date prior to that of Little- ^^^^ 
John's order. The recital is really nothing more than 
the declaration of the Company and of Ferguson aflSrm- 
ing the existence of the facts recited as the motive 
and justification for what they then did. And now, 
when the propriety of what they then did is called in 
qoestion, depending upon the truth of the facts recited, 
they produce their own declaration that these facts 
existed, to prove in their own favor that, in point of 
fact, they did really exist. 

It is undoubtedly true, that upon reading the recital 
in this bond we feel that there is a certain degree of 
probability that the parties concerned took pains to 
ascertain the date of Ferguson's order and to recite it 
correctly, and in proportion to our confidence in the 
intelligence and integrity of these parties, we feel a 
greater or less degree of moral conviction that the 
facts really were as they recited them to be. But if 
there had been no bond and no recital, and nothing [79 
but the payment of the money by the Company to Fer- 
guson, we might have felt, in like manner, that there 
was a certain degree of probability, and perhaps a very 
high degree, that the order in favor of Ferguson was 
the oldest, from the fact that the Company, with the 
means of ascertaining the facts and a motive for doing 



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84 COURT OF APPEALS OF VIRGINIA. 

1867. SO, paid the money upon it. But this would be neither 
Tenn/ more nor less than to make the mere payment of the 



— money justify itself. And yet, in principle, it would 

River be of a piece with what I am now considering. 
Kanawha There is but one other circumstance relied upon to 
Company prove the date of Ferguson's order. It is the endorse- 
Little- ment on the power of attorney from Robinett to Fer- 
^^ ' guson. We have no explanation of this endorsement. 
Little- ^ff^Q ^q jj^^ know when, why, or by whom it was made. 
V. We do not know to what tne date '* February 1st, 
^^k'^ 1^39," refers. Mr. Munford, the present secretary 
of the Company, supposes it to refer to the time at 
which the power of attorney was first made known to 
the Company. It certainly did net representthe date 
of the power of attorney on which it was endorsed. 
What ground is there for saying that it had reference 
to an assignment on another paper which is not shown 
to have been with the power of attorney, and that it 
was intended to indicate the date of that assignment? 
What is there to show that tte person who made that 
endorsement did not regard the power of attorney as 
in eflfect an assignment, and refer to it as a power of 
attorney and assignment ? 

It is evident, therefore, that this endorsement, even 
if it could be used at all as evidence of what is stated 
in it, proves nothing to the present purpose. 

It seems to me, therefore, to be very clear, that Fer- 
guson failed to establish that his order was dated on 
the 1st of February, 1839, or that it bore date prior 
to Littlejohn's. In the absence of any evidence on the 
80] subject, the presumption must be that Littlejohn's 

order was given first. For it would have been an act 
of folly as well as a fraud in Robinett to give Little- 
john an order for the amount of his debt when he had 
already given Ferguson an order for the whole balance 



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OOUBT OF APPEALS OP VIRGINIA. 85 

due him from the Company. The court will not pre- 1867. 
sume this, in the absence of all evidence, but will pre- Term, 
same the contrary. ""j^ 

After Littlejohu filed his bill in October, 1839, he River 
took no other step in the case until 1849, when he ob- Kanawha 
tained orders of publication against Kobinett and Fer- Company 
guson as absent defendants. In the absence of expla- Little- 
nation, this seems to have been great laches; but I do ^^ 
not think we are authorized to dismiss the bill on that ^^^^ 
ground. If we were to do so, we should go beyond v. 
any former decision of this court. In Chinn v. Mur- & ale. 
fay, 4 Gratt. 348, this court sustained a suit where 
there had been a much greater interruption in its prose- 
cution. In this case, the James River and Kanawha 
CJompany had been served with process, and Fergu- 
son, though not served with process, was aware of the 
suit, and stipulated to defend the Company in it. He 
might, therefore, have taken steps in the name of the 
Company — if he did not choose to appear — to have the 
suit dismissed, if not duly prosecuted. It was his 
laches, therefore, as well as the plaintiflF's. On this 
giound Lord Redesdale refused, in Gifard v. Hort^ 
1 Sch. & Lef. R. 386, to dismiss a bill which had 
been pending, without active proceedings, for forty 
years; the defendant insisting on the plaintiff's laches 
in proceeding as a bar to the relief asked for. In 
CmwfoTcTs ex^or v. Patterson^ 11 Gratt. 364, where 
this court dismissed the bill en account of the laches 
of the plaintiff in the prosecution of his suit, the delay 
was twenty-three years ; the defendants against whom 
the claim was made, and all the parties who were cog- 
nizant of the transactions, had died, and there was 
strong ground to hold that the plaintiff had acquiesced 
in a report made before proceedings in this suit were [81 



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86 COURT OF APPEALS OF VIRGINIA. 

1867. In this case, Ferguson had full opportunity to make 
Term/ ^^ defence. His defence rested on a single fact, the 



"";; importance and conclusiveness of which he well knew, 

River and which, if true, could be easily proved. The de- 

Kanawha f^^^ce of the Company was the same. If he chose to 

Company neglect his own defence and that of the Compauy 

Little- upon an assumption that Littlejohn had abandoned his 

•'^ "* claim, it was his own folly. 

Little- These views dispose fully of the case of LitUejohn v. 
V. Ferguson <& aX., and render it unuecessary to consider 
^^j^° any other question raised in that case. I will add, 
however, that if Ferguson had established the priority 
of his order, yet as it was admitted to have been given 
only as a security for debts and liabilities, an account 
should have been ordered to ascertain the amount 
due upon it, so that the residue of the fund, if any, 
might be applied to Little John's claim. 

These views likewise dispose of most of the ques- 
tions in the case of James River and Kanawha Com- 
pany V. LittUjohn. There was no exception to the 
report of the commissioner in that case; but none was 
necessary. The commissioner reported that he had 
heard no evidence, and that his conclusions were 
founded entirely upon the exhibits in the case to which 
he referred in detail. Whether these papers sus- 
tained the conclusions of the commissioner was a ques- 
tion arising on the face of the report. One other 
question, however, has been raised in that case which 
remains to be considered. 

It is insisted that Kobinett was an indispensable 
party to Littlejohn's bill, and that although his name 
was included in the subpoena, and he was proceeded 
against by publication, he cannot be regarded as a 
party in the cause, according to the case of Moseley 



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COURT OF APPEALS OF VIBGINIA. 87 

V. Cocke^ 7 Leigh 224, and other cases, and that the 1867. 

decree must be reversed on that ground. Term/ 

It is sometimes laid down, that to a bill filed by the "";: 

' ;; James 

assignee of a chose in action, the assignor is in all River 
coBes an indispensable party. It was so said by Judge Kanawha 



Scott, delivering the opinion of a special court in Cor- Company 
lin V. Emerson^ 10 Leigh 663. But this language Little- 
ought to be understood with reference to the case in ^^ 
which it was used. There was no proof of the assign- ^^^ 
ment in that case; it was not before the court, and the v. 
court could not say, therefore, whether it was absolute ^JSI^"^ 
and unconditional or otherwise. The want of proof [83 
of the assignment seems to have been the point mainly 
urged in the aiguttont, and the authorities bearing on 
the necessity of making the assignor a party were not 
cited. That there are cases in which the assignor is 
not a necessary party to a bill filed by an assignee, ap- 
pears from Newrnan v. Cha^pman^ 2 Rand. 93, which 
was not cited in Corhin v. Emerson. I do not think, 
therefore, that Corhin v. Emerson can be regarded as 
settling, that in all cases whatsoever the assignor is an 
indispensable party. 

It is a general rule, that all persons interest'^d in the 
subject matter of the suit must be made parties; and 
this rule is founded on the reason, that courts of equity 
aun ''to do complete justice, by deciding upon and 
settling the rights of all persons interested in the sub- 
ject matter of the suit, so that the performance of the 
decree of the court may be ])erfectly safe to those who 
are compelled to obey it, and also that future litiga- 
tion may be prevented." Story Eq. PI. § 72; Cla/rk 
v. Long^ 4 Kand. 451 ; Jo/meson'* s adrrCr v. Dashields^ 
3 Gratt. 4. There are exceptions to this general rule 
which, in the language of Judge Story, ''will be found 
to be governed by the same principle, which is, that 



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88 COUBT OF APPEALS OF VIRGINIA. 

1867. as the object of the general rule is to accomplish the 
Term. Purposes of justice between all the parties in irterest, 
— and it is a rule founded, in some sort, upou public con- 

River venience and policy, ratler than upon positive prin- 
Kanawha ciples of municipal or general jurisprudence, courts of 
Company equity will not suffer it to be applied so as to defeat 
Little- the very purposes of justice, if they can dispose of the 
^^ "* merits of the case before them without prejudice to 
Little- ^jjQ rights or interests of other persons who ate not 
V. parties." Story Eq. PI. § 77. Consistently with 
^e^^ these general principles. Judge Story, upon the 
83] authority of numerous cases which he cites, lays dovni 
the true doctrine as to assignois to be this, that where 
the assignment is absolute and unconditional, leaving 
no equitable interest whatever in the assignee, and 
the extent and validity of the assignment are not 
doubted or denied, and there is no remaining liability 
in the assignor to be affected by the decree, it is not 
necessary to make the assignor a party. And Chan- 
cellor Walworth, in a case not cited by Judge Story, 
held, after an examination of the authorities, that 
where the assignment purports to transfer the whole 
iuterest of the assignor, and there is nothing in the 
pleadings or proof to induce a belief that it did not 
really do so, it is not necessary to make the assignor a 
party. Ward v. Van Bokkelen, 2 Paige's E. 289. 

In this case no decree was sought against Robinett. 
Ferguson and the James River and Kanawha Company 
claimed that Robinett had parted with his whole in- 
terest, and they both treated the controversy as one 
between Littlejohn and Ferguson alone. Hence, when 
the Company paid the money to Ferguson, it took 
from him indemnity against Littlejohn, but none 
against Robinett. And accordingly neither of tHem 
objected in the court below to the failure to make 



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COURT OF APPEALS OF VIRGINIA. 89 

Bobinett a party. If it appeared that Kobinett was 1867. 
a necessary party, this court would reverse the decree Term/ 

OD that ground, although the objection was not taken ~ 

by demurrer or otherwise in the Circuit Court. Clark River 
V. Zonff^ 4 Rand. 457, and cases cited; Taylor^ s adnCr Kanawha 
V, Spindle, 2 Gratt. 44. But this court will not re- Ck)mpany 
Terse a decree for the failure to make a party where Little- 
it appears aflirmatively that the party, if he had been ^^ 
brought before the court, would have been merely a V^^^®" 
formal party, against whom no decree was asked, and v. 
whose presence was not necessary for the protection ^^S!^ 
of any of the defendants. [84 

I am of opinion, therefore, that the decree in Little' 
John V. Ferguson cfe al, should be reversed, and that 
in James River cmd KanoAJoha Company v. LitUejohn 
affirmed. 

MoNCDRE, P. concurred in the opinion of Judge 
Joynes^ except upon the question \^hether Ferguson's 
petition was barred by the statute. Upon that point 
he expressed no opinion, saying that he had not ex- 
amined it. 

All the judges concurietl in affirming the decree in 
the James Kiver and Kanawha Company against 
littlejohn, concurring in the opinion of Joynes, J., 
except that Judge Rives said he expressed no opinion 
on the weight that was to be given to Ferguson's 
ansiKer. 

The James River and Ko/nawha Company v. Little- 
john, aJSmned. 

Littlejohn v. Ferguson cfe als. , reversed. 



Vol. xvni — 12 



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90 OOUBT OF APPEAX8 OF VIRGINIA. 



Ricfimond. 

Ig^ Lawhorne, €X parte. 

January 

Term. 
g5"| January 15. 

The 22d section of article VI, of the constitution of Virginia applies 
to all State officers ; and the Grovemor, whose term has ex- 
pired, holds over until his successor is qualified. 

This was a petition to this court by James Law- 
home for a writ of habeas corpv^. The petitioner 
stated in his petition, that he was confined in the 
penitentiary under a sentence of the county court of 
Nelson county, for grand larceny. That on the 13th 
of January, 1868, Francis Peirpoint, Governor of the 
State of Virginia, granted to him a full and immediate 
pardon; but that James F. Pendleton, Esq., the 
superintendent of the penitentiary, refused to release 
him, on the ground that the term for which Governor 
Peirpoint had been elected Governor had expired on 
the 1st day of January, 1868, or the day previous, 
and that therefore he had no authority to pardon the 
petitioner. 

At the foot of the petition there was a statement 
by Mr. Pendleton that the facts stated in the petition 
were true; and that he only held the petitioner that 
the question, whether Governor Peirpoint continued 
in office after his official term had expired, no successor 
to him having been elected or qualified, might be 
judicially determined. 



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C»URT OF APPEALS OF VIRGINIA. 91 

Ne^son^ for the petitioner. 1868. 

January 
Term. 

MoscuBE, P. delivered the opinion^ of the court : — ~ 

This case depends upon the question, whether the home 
Governor is an officer within the meaning of the^^ ^86 
twenty -second section of the sixth article of the con- 
stitution of the State, which declares, that '* judges 
and all other officers, whether elected or appointed, 
shall continue to discharge the duties of their respec- 
tive offices, after their terms of service have expired, 
until their successors are qualified." 

If this section stood alone, and unaffected by the 
context, there could not be two opinions as to its 
meaning. It uses the plainest possible language to 
embrace all officers, except that it does not mention 
them all by name. '* Judges" alone are specifically 
named, no doubt because the provision was made in 
that part of the constitution which relates, generally, 
to the ** Judiciary Department." Had it been made 
in that part which relates to the ''Executive Depart- 
ment," the ''Governor" would no doubt have been 
named instead of the "Judges," and the language 
wofuld then have been, "the Governor and all other 
officers, whether elected or appointed," &c. The 
(lovemor is certainly an offix^er in the proper and ordi- 
nary acceptation of the word; and he is expressly 
called an officer, and described as holding an office, in 
the constitution itself. Article V, §§ 1, 3, 4 and 9. 
There is at least as much reason for including the 
Governor in the provision in question as any other 
officer of the government. If it be important that 
there should always be some person in existence to 
perform the duties of every office of government, and 
especially every constitutional office, surely this reason 
appUes with the greatest possible force to that office 



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92 COURT OF APPEALS OF VIRGINIA. 

1868. to which belongs ''the chief executive power of the 
T^rm?^ coramonwealth. That this was the view of the framers 
~T~" — of the constitution is shown by the fact that they took 
home special care to provide for the perfonrance of the 
ex pa . ^j^^j^ ^f ^jjQ office of Grovernor in case of his death or 
87] failure or inability to discharge his duties during the 
term for which he was elected. Art. V, § 9. They 
made no such provision in regard to any other office 
(except for the appointment of a clerk pro tempore,] 
leaving that to be done by the Legislature. But in 
regard to the performance of the duties of all officers, 
including the Governor, after their terms of service 
have expired, and until theii successors are qualified, 
ample provision is made by the twenty-second section 
of the sixth article. This was a natural and proper 
provision for the case. It is important, as before 
stated, that there should be some person always ready 
to perform the duties of every office ; and when an in- 
cumbent has served out the term for which he was 
elected or appointed, who can be more suitable than 
he, as a general rule, to continue to discharge the 
duties of his office until his successor is qualified ? He 
has been once elected or appointed to the office, and 
is therefore presumed to be fit for it. He has served 
out his term, and is therefore presumed to be familiar 
with its duties. 

Now can it be supposed that the framers of the con- 
stitution would have used the broad and plain terms 
used in the section in question without expressly ex- 
cepting the office of Governor, if they had intended to 
except it ? They were not like an unlearned testator 
making his will, in extremis and inop% coneiliiy and 
whose words, therefore, will be indulgently expounded 
to eflfectuate his intention. They were selected for 
their wisdom to do the important work of framing a 



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COURT OF APPEALS OF VIRGINIA. 93 

constitution of government for the State. They had 1868. 
time to do their work with deliberation, and the pre- Tem7 

samption is that they weighed with care and well un- ""7^ 

derstood every word which they used, and feit the im- horae 
poitance of expressing their meaning plainly. When, ^^ ^* 
therefore, they declared that *' Judges and all othei 
officers, whether elected or appointed, shall continue 
to discharge the duties of their respective offices, " &c. , 
they must have known that this plain and compiehen- [88 

sive language, standing alone, embraced the office of 
Governor, and would be so understood; and they 
must have seen the necessity of expressly excepting 
that office, if they did not intend to embrace it in the 
language used. That they did not expressly make the 
exception, shows very strongly, if not conclusively, 
that they intended to embrace the office of Governor. 
Such being the plain meaning of the secticn in 
question, taken by itself, if there can be anything in 
the con text (short of express words) sufficient tc change 
or restrict this meaning so as to exclude therefrom the 
office of Governor, surely the evidence of intention 
ought to be very strong to have that effect. Let us 
now see what is relied on in the argument to sustain 
the restricted construction contended for. 

It is argued that article V, which relates to the 
'^Executive Department" makes all the provision 
which was intended to be made in the constitution in 
regard to the office of Governor, and shows that he 
was not intended to be embraced in the twenty -second 
section of the sixth article. The only sections of the 
fifth article which have a material bearing on the sub- 
ject are the 1st, 8th and 9th, which are as follows : 

"1. The chief executive power of this common- 
wealth shall be vested in a Governor. He shall hold 
the office for the term of four years, to commence on 



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94 COUBT OF APPEALS OF VIRGINIA. 

1868. the first day of January next succeeding his election, 
l^mJ ^^^ ^ ineligible to the same oflBce for the term next 

'~^ succeeding that for which he was elected, and to any 
home other office during his term of service." 

'*8. A Lieutenant-Governor shall be elected at the 
same time, and for the same term as the Governor, 
and his qualification and the manner of his election in 
all respects shall be the same." 

89] ''9. In case of the removal of the Governor from 

office, or of his death, failure to qualify, resignation, 
removal from the State, or inability to discharge the 
powers and duties of the office, the said office, with its 
compensation, shall devolve upon the Lieutenant- 
Governor; and the General Assembly shall provide 
by law for the discharge of the executive functions in 
other necessary cases." 

Much stress is laid on the first of these sections, 
which declares the Governor, after holding the office 
for the term of four years, to ''be ineligible to the same 
office for the term next succeeaing that for which he 
was elected, &c., from which an intention is inferred 
to make him incapable of continuing to discharge the 
duties of his office after the expiration of his term of 
service. But this not a well-founded inference. The 
policy of making him ineligible to the same office for 
the next succeeding term was to avoid exposing him 
to the temptation of using means afforded him 
by his office to secure his re-election to the same office, 
or his election to another office during his term of ser- 
vice. There was no reason whatever for rendering 
him incompetent to continue to discharge the duties 
of his office after the expiration of his term of service 
and until the qualification of his successor. No policy 
of the law requires it. He cannot be supposed to have 
any agency, official oi otherwise, in bringing aboat 



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OOUBT OF APPEALS OF VIRGINIA. 95 

the occasion for such continuance. There is not a 1868. 
word in the constitution which either expi esses or im- 5?^^ 
plies an intention to render him incompetent to con- ""77 
tinue to discbaige the duties of his office on such an home 
emergency. The words, **and be ineligible to the 
same office for the term next succeeding that for 
which he was elected, refer solely to a popular re- 
election for a full term of service, and not to his con- 
tinuing, ex officio when the occasion requires it, to dis- 
charge the duties of his office after his term of service 
has expired, and until his successor is qualified — an 
occasion which is not likely often to arise, nor to be [90 

of long continuance; but however often it may arise, 
or however long it may continue, or \ihatever may 
have produced it, the same principle applies to the 
case. There are other occasions on which a person 
who may have been Governor may have to perform 
duties of the office during the terra succeeding that 
for which he was elected, and which he would certainly 
not be incompeient to perform. He might be Lieu- 
tenant-Governor, or Secretary of the Commonwealth, 
or President j>r<> tempore of the Senate, or Speaker of 
the House of Delegates, in eitJier of which charact- 
eis he might have to perform such duties in a certain 
contingency. Const, art. V, § 9; Acts 1857-8, p. 20, 
ch. 20, § 17. 

But this question has already, in eflfect, been adjudi- 
cated by this court. The constitution declares, that 
**no person elected for two successive terms to the 
office of sheriff, shall be re-eligable to the same office 
for the next succeeding term ; nor shall he during his 
term of service, or within one year thereafter, be elig- 
aWeto any political office." Art. VI, § 31. Kow 
here it will be observed, that the same principle of in- 
eligibiUty is applied to the sberiflf as to the Governor, 



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96 COUBT OF APPEALS OF VIBGINIA. 

1868. the only difference being, that the former may be 
^m7 elected for two successive terms, while the latter can- 

~7~ not. But that difference does not affect the princpiple 
home or the question we are now considering. If the in- 

ex pa . ^jigj^jjjji^y Qf ^ person to the office of sheriff for the 
next succeeding term, after having been elected for two 
successive terms to the same office, does not take him 
out of the operation of the t\^enty-second section of 
the sLxth article, and render him incompetent to con- 
tinue to discharge the duties of his office, after his two 
successive terms of office have expired until his guc- 
cessor is qualified, then pari ratione^ the ineligibility 
aforesaid of the Governor will not have that effect, 
mutatis mutandis^ as to him. The question as to the 

91] sheriff has been expressly decided by this court. Com- 
monwealth V. Drewry^ cfe<?.,15 Gratt. 1. In that case 
Drewry was elected for two successive termg to the 
office of sheriff of Norfolk county, and served accord- 
ingly, to wit : from the 1st of July, 1852, to 1st July, 
1856. By the act of March 15, 1856, Sess. Acts p. 
8, the term of the sheriff was extended frcm July 1, 

1856, to January 1, 1857, which latter was made the 
day for the commencement of the succeeding term. 
The incumbent whose term was thus extended was re- 
quired to give a new official bond. T)rewry continued 
to act as sheriff until January, 1857, although he did 
not execute the bond required as aforesaid, and al- 
though his successor was elected in May, 1856, and 
executed his official bond and qualified in June follow- 
ing, but did not enter upon bis office .until January, 

1857. This court decided that Drewry held o^er, 
after the 1st of July, 1856, under the constitution, 
art. 6, § 23, which was the same with § 22 of the 
present constitution,) and that having, collected the 
State taxes of 1856, his sureties in the bond of 1854 



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COURT OF APPEALS OF VIRGINIA. 97 

were liable for them. This is certainly a strong case, 1868. 
and goes very far to show the force and effect and Teim^ 

general operation of the constitutional provision in ""17 

question. There had been an unbroken connection home 
between the terms of the office of sheriff, the one end- ®^ ^^^^' 
ing and the other commencing on the 1st of July. 
The Legislature interposed by the act of March, 1856, 
and broke the connection by fixing on the 1st day of 
January for the commencement of the official term ; 
thus creating a chasm of six months between Drewry's 
second term and the term of his successor. Notwith- 
standing this, and although his successor actually quali- 
fied as early as June, 1856, but did not enter upon the 
duties of the office untilJanuary, 1857, it was decided 
by this court that he held over after the 1st of July 
until the 1st of January, under the constitution, and 
that the sureties for his second term were bound for his 
defaults during the period of his holding over; and [92 
that, too, when the act prolonging his tfirm required 
him to give a new bond, with which requisition he 
failed to comply. *^The constitution" (said Judge 
Samuels, in whose opinion all the judges but one con- 
curred, and it does not appear that he disagreed to 
what is here said) **of itself required Drewry to con- 
tinue in the discharge of his duties until his successor 
was qualified. It directs such continuance without 
reference to any particular cause of delay in the suc- 
cessor, but upon the fact that the aelay has occurred ; 
it fixes no limit of time beyond which the delay shall 
not have its effect to prolong the term of the incum- 
bent." 

This case seem s to be a conclusive answer to the argu- 
ment founded on the ineligibility of the Governor to 
the same office for the next succeeding term to that 
for which he was elected. 

Vol. XVIII — 13 
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98 COURT OF APPEALS OF VIRGINIA. 

1868. It is contended that the first section, having con- 
TeimT filled the powers of the Grovemor to the duration of 
j^ his term, and made him incapable of continuing there- 
home after to discharge the duties of his oflBce, the 9th sec- 

^^ ^^ ' ticD makes full provision for the discharge of the duties 
of the office, not only in case it should become vacant 
during his term, bat after its expiration, and until his 
successor is qualified. It is supposed that the conclud- 
ing words of the section, which direct the I^gislatuie 
to provide by law for the discharge of the executive 
functions in other necessary cases, refer to all nec^- 
sary cases not provided for by the preceding part of 
the section; and that the act of May 29, 1852, en- 
titled '* An act providing for the discharge of the exe- 
cutive functions in certain cases," Sess. Acts p. 28, 
and the act of March 30, 1858, ch. 20, § 17, Sess. 
Acts p. 20, make f^iU provision accordingly. 

Now the constitution ought to be so construed, if it 
can reasonably be done, as to give effect to everj' 
word which it contains, and especially words of plain 
and unambiguous import. The construction con- 

93] tended for, as just stated, is inconsistent with the plain 
words of the twenty-second section of the sixth article, 
and restricts them in a most important particular. 
Those words are universal in expression — '* Judges and 
a^Z other officers. " The construction contended for 
excepts from their operation the chief executive officer 
of the Commonwealth. If this construction were un- 
avoidable, there would of course be no help for it. 
Hut is it unavoidable ? We think not. On the con- 
trary, we think the opposite construction is at least as 
reasonable, looking alcne to the fifth article; but 
looking to the whole constitution, it is infinitely more 
reasonable, and therefore to be preferred, because it 



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COURT OF APPEALS OF VIBGINIA. 99 

makes the constitution consistent in all its paits, and 1868. 
gives effect to every word. ^rmT 

Oar constrnction of the contstitution on this subject 7I~~ 
then is this: That under the first section of the fifth home 
article the Governor is to hold his oflBce for the term ^ ^ 
of four years, for which he was elected; and under 
the twenty-seccnd section of the sixth article, he is to 
continue to discharge the duties of his office, after his 
term of service has expired, until his successor is quali- 
fied; and that the ninth section of the fifth article 
provides only for the case (not provided for by the 
other two sections) of the removal of the Governor 
from office, or of his death, failure to qualify, resig- 
nation, removal from the State, or inability to dis- 
charge the powers and duties of the office, devolving 
said powers and duties in that case upon the Lieuten- 
ant-Governor, and directing the General Assembly to 
provide by law for the discharge of the executive 
functions in other necessary cases; that is, cases in 
which there should be no Lieutenant-Governor in be- 
ing to discharge the po\^ers and duties of the office. 
That this was the only necessity for legislative provi- 
sion in the contemplation of the framers of the consti- 
tution is manifest, not onlj from its terms and whole 
framework, but also from the action of the Legisla- 
ture at its first session after the adoption of the con- [94 
stitution of 1851, of which the present constitution is 
almost a literal copy. That Legislature, as was truly 
said in the argument, was composed generally of able 
men, and m part of some of the members of the con- 
vention which framed the constitution, and must be 
presumed to have understood its meaning. Upon 
them devolved the important duty of organizing the 
government tinder the constitution. The act of May, 
29, 1852, before referred to, is the only act which 



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100 COURT OF APPEALS OF VIEOINIA. 

1868. they passed in obedience to the requirement of the 
^Sirm^ Jiinth section of the fifth article before mentioned, aod 
J2~r~ provides for all the cases which they considered neces- 
horne sary under that section. Those cases are only such 
^ * as may arise in the event that the Lieutenant-Governor, 
upon whom the office of Governor may devolve as afore- 
said, shall be removed from office, or shall die, fail to 
qualify, resign, remove from the State, or be unable 
to discharge the powers and duties of the office; in 
which event, it was enacted that the Attorney-Gene- 
ral, elected by the voters of the Commonwealth; or 
if there be no such Attorney- General, then the Pru- 
dent of the Senate pro tempore ; or if there be no such 
President, then the Speaker of the House of Delegate 
shall discharge the executive functions until there is a 
Governor or Lieutenant-Governor who can act. By 
the act of March 30, 1858, before referred to, the Sec- 
retary of the Common\vealth is substituted to the place 
of the Attorney-General under the act of May 29, 
1852. No provision has evei been made by law foi 
the important case in which the Governor has served 
to the end of his term, and his successor is not then 
qualified. Why ? simply and plainly because the case 
is provided for by that section of the constitution 
which declares that judges and all other officers, 
whether elected or appointed, shall continue to dis- 
charge the duties of their respective offices, after their 
95] terms of service have expired, until their successors 
are qualified. 

Again, it is argued, that the position in the consti- 
tution which is occupied by the section in question- 
being in that article which relates to the ^ ^Judiciary 
Department" — shows that it was intended to confine 
the section to officers connected with that department, 
and therefore to exclude the office of Governor. 



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COURT OF APPEALS OF VIRGINIA. 101 

If the words of the section be plain and unmistaka- 1868. 
ble, we must give full eflfect to them, whatever fault TermT 

we may find with the taste displayed in their location — 1~ 

in the instrument. But really they do not seem to be home 
obnoxious even to this criticism. Where else in the ^^ ^ 
constitution could the provision better have been 
placed? It is, as we contend, a general provision, 
relating to all officers, legislative, executive ana judi- 
cial, for whose election cr appointment the constitu- 
tion provides. The constitution, in the main, is dis- 
tributed under the three heads of the legislative, ex- 
ecutive and judiciary departments, to which all the 
powers and duties of government belong. The 1st 
article relates to the *' bill of rights," and contains 
only two lines. The 2d relates to the ''division of 
power," and contains but five lines. The 3d relates 
to the qualification of voters, and contains but four 
sections. The remaining articles, to wit, the 4th, 
5th, and 6th, relates to the legislative, executive and 
jiidiciary departments respectively, and in that order. 
The 4th article, relating lo the ''legislative depart- 
ment," contains 38 sections, of which the last seven 
are under the head of "general provisions." The 5th 
article, relating to the "executive department," con- 
tains 19 sections, but no "general provisions." The 
6th and last article, relating to the judiciary depart- 
ment, contains 34 sections, of which eleven are under 
the head of "general provisions," one of the eleven 
being the 22d section in question. This article cer- rgg 

tainly embraces subjects which do not belong to the 
judiciary department more than any other, if as much. 
It embraces the subject of county officers, including a 
surveyor, commissioner of the revenue, overseers of 
the poor, and also all officers appertaining to the cities 
and other municipal corporations. These subjects 



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102 COURT OF APPEALS OF VIRGINIA. 

1868. were arranged uoder the head of the '* judiciary de- 

^m7 partment," no donbt because that is the last depart- 

~ ment treated of in th^ frame of the constitution, and 

Law- ' 

home was as convenient a location as any other; it not be- 
ex pa . j^g considered necessary to ^multiply the number of 
articles for the purpose of placing these subjects under 
independent heads. In regard to the subject of the 
22d section, that (in our view,) related to all three of 
these departments, and instead of having a separate 
section undei the head of each of them, referring to 
the officers belonging to that department only, a single 
section was embodied in the last article applying to 
'^judgesandallothei officers," naming "judges" only 
because the section was under the head of the "judi- 
ciary department." 

If the argument founded on the location of the sec- 
tion in question be a sound one, then not only is the 
governor excluded from its operation, but also all the 
officers named under the liead of the "executive de- 
partment," including the lieutenant-governor, secre- 
tary of the commonwealth, t^'easurer, auditor of public 
accounts, and members of the board of public works. 
Can it be possible that the framers of the constitution 
intended to exclude none of these important officers 
of government in the broad terms used in the section? 
and that, too, when net only those terms literally in- 
cluded them, but there was as much reason for includ- 
ing them as judges or any other officers. 

We believe we have noticed, and we think answered, 
in the foregoing opinion, all the objections taken in 
the argument to the construction which we have 
97] adopted of the section of the constitution in question 
in this case. Our opinion has perhaps been extended 
to too great length, considering that we have had no 
doubt or difficulty in the decision of the question in- 



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OOUBT OF APPEALS OF VIKOINIA. 103 

volved; bat that question being a constitutional one, 1868. 
and of importance to the public, we considered it xem^' 
proper to express our opinions fully on the grounds 7Z~~ 
relied on in the argument. The result of the opinion home 
is, that we think it devolves on Governor Peirpont, 
under the constiution of the State, to discharge the 
duties of the oflBce of Governor thereof until his suc- 
cessor is qualified; that the pardon granted by him to 
the petitioner, is a valid pardoE, and that the said pe- 
titioner, is illegally detained in the custody of the su- 
periatendent of the penitentiary. It is therefore 
ordered that he be discharged therefrom. 

The following is the entry made by the court : 
The petition of James Lawhome, wliich was pre- 
sented to the court on yesterday and continued until 
to-day for further consideration, complaining that he 
is unlawfully detained in the penitentiary, in the cus- 
tody of James F. Pendleton, the superintendent there- 
of, and praying for a writ of habeas corpus^ came on 
this day for further consideration accordingly. The 
petitioner states that he is confined in the penitentiary 
for a term yet unexpired, under a conviction for grand 
larceny in the county court of Xelson county ; that on 
the I3th day of the present month, January, 1868, 
he was pardoned by Francis H. Peirpont, Esq., Gov- 
ernor of the Commonwealth, by letters patent bearing 
date on that day, and filed with the petition; and 
that the said superintendent refused to admit the va- 
lidity of said pardon and discharge the petitioner, be- 
cause, and only because, the term of oflSce of Gover- 
Qor Peirpont expired on the 1st day of January, 1868, 
or the day before, and the said pardon was dated and rgg 
issued after that day as aforesaid. The said Pendle- 
ton superintendent as aforesaid by a memorandum 



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104 COURT OF APPEAL8 OF VIRGINIA. 

1868. annexed to said petition, and signed by him, admits 
Tenm7 ^^^^ ^^^ ^^^ reason stated in said petition, and no 
J. ^ other, he detained the said petitioner; and he states 
hornp that as the pardon granted by Governor Peirpont 
* bears date after his official term had expired, though 
when so successor to him had qi^alified, a question 
had arisen as to the validity of the said pardon, 
which he the superintendent desired to submit to 
the determination of this court. Wherefore, it 
appearing to the court from said petition and 
memorandum, that there is probable cause to believe 
that the petitioner is detained as aforesaid without 
lawful authority, a writ of habeas corpus is awarded 
him, to the said superintendent to be directed, com- 
manding him forthwith to have the body of the pe- 
titioner before this court, together with the day and 
cause of his capture and detentiou. And there- 
upon the petitioner by counsel, and the said super- 
intendent in proper person, agreed in open court to 
dispense with the actual issuing of the writ and the 
personal presence of the petitioner in court; that the 
said memorandum should be regarded as a return to 
the writ; and that the court should proceed to decide 
the case upcn the said petition and return, in which it 
is fully presented. And the court, after hearing and 
considering the arguments of ^counsel, as well in be- 
half of the said petitioner upon his petition as in op- 
position thereto, is of opinion that the Governor is an 
oflBcer within the true intent and meaning, as well as 
the literal terms of the 22d section of the sixth article 
of the constitution of the State, which declares that 
* 'Judges and all other officers, whether elected or ap- 
pointed, shall continue to discharge the duties of their 
respective offices after their terms of service have ex- 
pired, until their successors are qualified;'' that al- 



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COURT OF APPEALS OF VIBGINIA. t05 

though Governor Peirpont's term of oflBce has expired, 1868. 
it devolves on him, under the said provision of the Tera7 

constitution, to ccniinue to discharge the duties of his — 17 

oflBce until his successor is qualified ; that as no sue- home 
cessor to him has yet qualified, the pardon granted by ®^ ^\^g 
him to the petitioner as aforesaid is a valid pardon ; 
and that the said petitioner is illegally detained in the 
penitentiary and in the custody of the said supei in ten- 
dent. It is therefore ordered that he be discharged 
therefrom. 



Vol. XVI it — 14 



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106 COURT OF APPEALS OF VIRGINIA. 



Bicfimonft. 

, ^8^- Martin v. Snowden, triistee. 

January 
Term. 
100] Bennett v. Hunter. 

PORTNER & KeOKER V. CaZENOVE. 
January 20. 

1. The fourth section of the act of Congress of June 7, 1862, en- 

titled " an act for the collection of taxes in the insurrectioii- 
ary districts/' 12 Stat, at Large 422, does not, and is not in- 
tended to, create such a forfeiture of the land to the United 
States as that it ipso facto ceases to be the property of the 
former owner, and becomes the absolute property of the 
United States. 

2. Congress has not the constitutional power to impose the penalty 

of forfeiture of lands for the non payment of taxes aseeseed 
thereon. 

3. Congress has all the powers for enforcing the collection of it« 

taxes that were in use by the Crown in England, or were in 
use by the States at the time of the adoption of the constitu- 
tion of the United States ; but forfeiture of the land assessed 
with the tax was not then in use, either in England or the 
States, as a mode of collecting the tax. 

4. If the forfeiture provided by this act is to be r^arded as abso- 

lute and as a penalty upon persons engaged in rebellion 
against the United States ; then it is a legislative conviction 
and punishment without trial of all who fell to pay the tax, 
and is a violation of the provision of the constitution which 
forbids Congress to pass a bill of attainder. 

5. The power of Congress to provide for the sale of land for the 

payment of the tax is limited to that object, and a law which 
requires that the whole land shall be sold in all cases, without 
regard to the fact that it may be divided without injury to it, 
and the tax may be paid by a sale of a part of it, is uncon- 
stitutional. 



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COUBT OF APPBAL8 OF VIKOINIA. 



107 



H. If the tax is paid or tendered by any person before the land is 
sold, the sale is void and of no effect ; though the act may 
provide that unless the owner shall appear in person and pay 
the tax, the commissioners shall proceed to sell the land. 

7. Snits at law, brought by the original owners of land against 
purchasers at a sale for taxes under the act of Ck)ngress, to 
recover the land, are not within the act of CJongress of Mafch 
3, 1863, authorizing the removal of certain suits from the 
State courts to the courts of the United States. 

These three cases were heard together in this court. 
The questions involved in them are the same. 

The cases of Martin v. Snowden and Bennett v. 
Hunter are cases of unlawful detainer, brought by 
Snowden, as trustee of Mrs. Eliza T. Fowle, against 
Martin, and by Hunter against Bennett, and the case 
of Pcrtm^r cfe Becker v. Cazenove^ is an action of eject- 
ment brought by Cazenove against tne appellants; all 
of them in the Circuit Court of the county of Alexan- 
dria. All the defendants claimed under tax sales 
made by commissioners of the United States govern- 
ment, for taxes due upon the property sold, imposed 
by the act of Congress cf August 5th, 1861, 12 Stat, 
at Large 292, imposing a direct tax; and was made 
under the act of June 7th, 1862, which provides for 
the collection of this direct tax in insurrectionary dis- 
tricts; and there was no question made as to the regu- 
larity of the proceedings of the commissioners, except 
as to their sales after the tender of the tax; and the 
selling the whole of the property, which was sus- 
ceptible of division, and the sale of a part of which 
would have been sufficient to pay the tax assessed 
upon it. 

In the first two cases, the defendants appeared and 
moved the court to remove them to the Circuit Court 
of the United States, stating that they claimed title 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 
[101 



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nove. 



102] 



108 COURT OF APPEAL8 OF VIRGINIA. 

1868. under said tax sales. But the court overruled the 

TemT motion, and they excepted. 

„ . The jury found a special verdict in the first two 

V. cases; in the third case the facts were agreed. It ap- 

trastee"* pejirs that Mrs. Fowle and her husband, Hunter and 

g^ Cazenove left AlQxandria in 1861, and went within 

V. the Confederate lines, where they remained until after 

the surrender ol General Lee, in 1865. Mrs. Fowle 

Portner ^^^ ^ married woman, and went with her husband; 

Recker Hunter was a minor in 1861, and did not come of age 
Caze- until 1864; and by the will under which he claimed 
the property, it was given to his father until he ar- 
rived to the age of twenty-one years, and then to him- 
self in fee. His father went with him into the Con- 
federate lines. After his return, in 1865, Hunter 
took the oath to support the constitution of the United 
Stales, and tendered to the commissioners the amount 
of the tax, &c., for the purpose of redeeming his 
property; but he refused to take the oath that he had 
not taken part with insurgents in the late rebellion, 
or in any way given them aid and comfort, as required 
by the seventh section of the act of Congress approved 
March 3d, 1865, amendatory of the act for the collec- 
tion cf direct taxes in the insurrectionary districts. 
He afterwards received a pardon from the President. 
And this was done ^.Iso by Mrs. Fowle in May, 1865; 
but she refused to take the last mentioned oath. In 
all the cases the property sold was assessed with a cer- 
tain part of the direct tax, and was advertised for sale, 
as directed by Congress ; and in each case it was suscep- 
tible of division, and a part might have been sold suffi- 
cient to realize the full amount of tax, interest, penalty 
and costs imposed upon it. Before the sale in the 
first case, but after the advertisement of sale, Wm. 
J. Boothe, a friend of Mrs. Fowle, -w ent to the office 



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COURT OF APPEALS OF VIKOINIA. 109 

of the tax commissioners prepared to pay the tax, in- 1868. 
terest, penalty and costs upon the property, but made ^^^f 
no tender of the money, being informed by the com- ^ . 
missioners that they would not recei\?e the money ex- v. 
cept fiom the owner in person. In Hunter's case, tnwtee"' 
before the sale, but after the advertisement, a tenant ^ ^^ 
of about one-half of the tract of land applied to the v. 
commissioners to pay the tax, &c. , but the commis- 
sioners refused to accept the same, except from the ^^^^ner 
owner in person. In the case of Cazenove, John P. Recker 
Agne^v then being in possession cf the property, but caze- 
not imder any agreement with the owner for such ^7?0^ 
possession, in order to secure the property from sale, 
and upon his own motion, having no authority from 
the owner, unless subsequently conferred, tendered to 
the commissioners the full amount of the tax, &c. 
In January, 1864, the whole property in each case 
was sold; and the parties in possession held under 
these sales. 

The Circuit Court rendered a judgment in each case 
for the plaintiff, and the defendants obtained writs of 
error to the District Court of Appeals at Fredericks- 
burg. In that court the judgments were aflBrmed j^ro 
fomia^ and then writs of error were obtained to this 
court. 

The cases were argued by WUloughby^ for the appel- 
lants, and Beach^ for the appellees; but it is impossi- 
ble to do justice to the arguments without giving more 
space to them tHan is allowable, especially as the 
questions are fully discussed by the judges. 

Rives, J. The appellants in these cases are assert- 
ing tax titles as against the original owners of the 
lands and lots, forfeited and sold for the non-payment 



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110 COURT OF APPEALS OF VIRGINIA. 

1868. of taxes. The principles involved are, for the most 
Term7 part, common to all, and therefore they may now be 
^ . considered, as they were argued, together. 

V. It is conceded to be necessary, to uphold these 

trustee. ' titles, that all the provisions of the acts of Congress 

Benn tt ^'^^^^ which they have arisen should be strictly com- 

V. plied with. They have been created by these enaot- 

ments, and can have no existence or validity save 

Portner ^juder and by their authority. It is proper, therefore, 

Recker to commence the investigation of them by ascertaining 

Caze- tb© character, the object, the meaning and the effects 

1 o^T ^^ these laws of Congress. 

At the commencement of the late civil war, Con- 
gress addressed itself with promptness and energy to 
the task of providing extraordinary means to meet the 
emergencies of the occasion. Among these was a re- 
sort to a direct tax of $20,000,000, and its apportion- 
ment among all the States and Territories, with a cu- 
rious disregard of the armed revolt of many of them, 
and a singular reliance on the usual civil processes of 
collection. It is reasonable, therefore, to presume, 
that the application of this act of August 6, 1861, to 
such States was merely nominal, and that it was not 
expected that it would operate except where the au- 
thority of the United States was acknowledged and 
maintained. But a brief statement of the leading pro- 
visions of this act will assist us in determing the true 
intent and purport of the succeeding act of June 7, 
1862. This first act abounded in wise and just pre- 
cautions to secure proper notification of every step in 
the assessment and collection, to guard against sur- 
prise and sacrifice, and ensure the restoration of the 
property upon the payment of the Government dues. 
In the first place, personal chattels were to be dis- 
trained ; and if not sufficient, then the lands were to 



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OOCRT OF APPEALS OF VIRGINIA. 



Ill 



be subject to sale; but cnly ''so much thereof as 
might be necessary to satisfy the taxes due thereon, 
together with an addition of twerty per cent, to the 
said taxes;" and it was only where the lands were 
not divisible that the whole were to be sold, and the 
surplus of proceeds paid to the owner or deposited in 
the treasury for the use of the owner, with a saving 
to the owner, his heirs or personal representative, or 
^^ any person i7i their hefialf^^^ of the right to redeem 
within two years, &c. In case of non-residents, a 
year was allowed them after publication by the collec- 
tor that the tax had become due, and at its expiration 
their lands were not subject to sale except upon sixty 
days' advertisement, and then only "so much as might 
be necessary to satisfy the taxes," &c. This was 
usual and normal legislation for collection of taxes; 
and no one can impute to it the neglect of just pre- 
cautions to protect the citizen from imposition. It 
may be accepted, therefore, as indubitable evidence 
that Congress was not ignorant of the rights of their 
constituents, nor derelict in their protection. 

This law, however, proved a dead letter in the 
States where the Federal authority was successfully 
defied and resisted. It, therefore, gave rise to a new 
and distinct act, framed for the special purpose of fol- 
lowing the army in its advances into the hostile States 
with tax commissioners, to assess and collect taxes ; 
and for that purpose, to sell the lands upon which 
they were charged. It is very clear that Congress 
must have foreseen, that in cases of such military oc- 
cupation, none of the adherents of the Confederacy 
would have remained on their lands; but, on the con- 
trary, would have fled with their movable property 
before this hostile advance — thus, in a great measure, 
leaving the country to be used and settled as the laws 



1868. 

January 

Term. 

f 
Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 
Portner 
Recker 

V. 

Caze- 
nove. 

[105 



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112 OOUBT OF APPEALS OF VIRGINIA. 

1868. of Congress might appoint. It seems that the appel- 
Term^7 lees here all fled upon the breaking out of the rebel- 
„ . lion, and left their houses, lots and lands to abide 
V. the ordinary incidents of military occupation. It 
trustee. ' ^^ tl^®'! ^^ the province of Congreiss not only to ool- 
Bennett '^^^ taxes from these lands, but so to frame their laws 
V. to that end as to invite the refugee lack to his allegi- 
ance, or provide for the settlement of his lands— if 
Portner ^hQjjy abandoned by him — by other more loyal tax- 
Recker payers, or appropriating them to the service of the 
Caze- governirent. Our State policy of forfeiture of lands 
nove. f^j, non-payment of taxes has been defended by this 
court on the distinct ground that it was designed and 
106] calculated to promote settlement, and thus remove 
^^a serious check to pojndation and the improvement of 
the country^ aiid the development of its resourc^^ 
The object of Congress was not merely to raise its di- 
rect tax from the ^Hmurrectionary districts^^'^ but it 
went further, and aimed at a settlement of them by a 
loyal population. Accordingly, this act is not simply 
entitled **an act for the collection of direct taxes in 
insurrectionary districts," but its title bears the signi- 
ficant addition, '^ and for other purposes,'^ ^ Among 
these latter is the palpable and unmistakable design 
of rendering the collection of these taxes auxiliary to 
the policy of transferring the title and possession of 
these lands either to the government, or to persons 
amenable to its laws and acknowledging its authority. 
How else can we account for the hasty and summary 
character of these proceedings; for dispensing with 
all the notices, indulgences and savings given by the 
act of August 6, 1861; for no longer distraining the 
goods in the first instance ; for no longer limiting the 
sale to '*so much of the land as might be needed," 
&c., and taking away redemption from ^^any person 



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OOUBT OF APPEALS OF VIBGINTA. 113 

in owner^s hehalf^'* and restricting it in terms to ^Hhe 1868. 
owner in person f^"^ These provisions can, in my T^rm7 
view, be only predicted of a design by Congress to "UZZ — 
accomplish by this acta two-fold purpose; first, to v. 
raise money from taxes ; and secondly, as an incident troetee!^' 
thereto, either to entice the recusant tax-payers back ^^ 
within its jurisdiction and power, or else transfer his v. 
forfeited lands to loyal citizens. The various provi- 
sions of this act for the redemption within sixty days P*^^®*" 
after sale, by the owner in proper person or any loyal Recker 
person having a lien, &c. , upon taking the oath to ca^ 
support the constitution; for the extension of the °^^®' 
time to redeem to those not implicated in the rebel- 
lion ; for leasing and selling to loyal persons, officers, 
musicians and privates of the array and navy; and 
conferring upon some of these a right of pre-emption, 
&c. 

All these satisfy me that these coll^^ctions in ''insur- noj 
rectionary districts were subsidiary to the policy of 
procuring loyal settlers upon these abandoned and for- 
feited lands, the taxes upon which the owner would 
not return in person to pay. 

• But it is said that this construction imputes to this 
law a culpable and discreditable indirection ; and con- 
verts it into a disguised scheme of confiscation. I do 
not perceive the justice of this criticism or animadver- 
sion. I have sought to show that there is nothing 
covert or indirect in the act ; but, on the contrary, 
that its meaning is plain and avowed, and its aim 
identical with all similar schemes of forfeiture. It is 
very properly stated by the counsel for the appellees, 
that forfeiture in such cases cannot be likened to the 
somewhat analogous result in the proceedings in rem 
for forfeiture. Here, it is q, precedent denouncement 
of a penalty for default — a warning — a means of co- 

VOL. XVIII — 15 



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Hunter. 



114 COURT OF APPEALS OF VIBOINIA. 

1868. ercion legitimately employed to induce a prompt pay- 
Te^7 in^Jit of taxes. It may be avoided in this way ; and 
'TT^'T. — in those exceptional oases, where it cannot be thus 
V. avoided, there is usually such a saving^ as consists 
tmTtee?' ^^^^ ^^® indulgence or the severity of the Legislature 
in its scheme of public policy. Whenever, however, 
V. such laws of foifeiture have worked out their results, 
it is not usual for the Government to retreat from its 
Portner position or abandon its declared policy, for the plain 
Recker reason that it contemplated beforehand these results, 
Caze- 3« consBquences incidentally, though not primarily, 
nove. ^f j|.g legislation. And applications for relief , when 
not embraced by the terms of the law, are matters of 
favor^ rather than of right. It is a source, doubtless, 
of regret, that under the circumstances of our late 
civil troubles. Congress had not been moie lenient in 
this regard to the landed proprietors who fled before 
its aimies, and were thus voluntarily out of the reach 
of its laws, in ignorance of their provisions, and de- 
108] barred by the war from any compliance with them. 
But that assuredly is not a consideration with this 
court to prevail against the rights and titles of pur- 
chasers from and under the government at these tax 



It is argued, however, that it is for the States alone, 
who are said to hold **the eminent domain" over the 
lands within their borders, to mflict such forfeitures ; 
and that it is not competent for Congress to exercise 
such powers. It is a suflScient reply to say that the 
people of the States have, by the federal constitution, 
expressly delegated to Congress "the power to lay and 
collect taxes ^^ in such comprehensive terms as to com- 
prise all modes of taxation, a.nd among these, taxes, 
on lands. Under the authority '*to make all laws 
which shall be necessary and proper for carrying into 



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OOUBT OF APPEALS OF VIROINIA. 



115 



execution the foregoing power," Congress possesses, 
by delegation from the States, a right to all the means 
habitually exercised by them for the collection of 
taxes. I do not believe the coe current powers of 
the Federal and State governments to impose taxes, 
and employ the usual agencies and coercion for their 
collection within the limits of the United States con- 
stitution, have been at any time called into question. 
Pending the adoption of the constitution, there was a 
great deal of earnest and able debate as to the expe- 
diency of this grant of urdimited taxation, and the 
danger of collision between the governments, State 
and Federal, from the exercise of such a concurrent 
power in both over the same subjects. Judge Story, 
in his Commentaries, remarks upon this subject with 
equal force and felicity: "The triumph of the friends 
of the constitution, in securing this great fundamen- 
tal source of all real eflfective national sovereignty was 
most signal; and it is the noblest monument ot their 
wisdom, patriotism and independence. Popular feel- 
ings and popular prejudices, and local interest and the 
pride of State authority, and the jealousy of State 
sovereignty, were all against them. Yet they were 
not dismayed; and by steadfast appeals to reason to 
the calm sense of the people and to the lessons of his- 
tory, they subdued opposition and won confidence. 
Without this power, the constitution would long since, 
like the confederation, have dwindled down to an 
empty pagent. It would have become an unreal 
mockery, deluding our hopes and exciting our fears. 
It would have flitted before us for a moment with a 
pale and ineflfectual light, and then have departed 
forever to the land of shadows." 1 Stor. Coram. § 
948. 
The elder Judge Tucker, in his notes on Blackstone, 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



[109 



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116 COURT OF APPEALS OF VIRGINIA. 

1868. says in the same connexion, that ^'a candid review of 
Term7 t^^is part of the federal constitution cannot fail to ex- 
"^T^T" cite our just applause of the principles upon which it 
V. is founded." 1 Tucker's Blacks. App. 246. It is the 
trustee. ' just effect of such ct)ramanding authority to warn us 
Bennett ^S^^^^^ ^^J judicial constiuction tending to weaken 
V. the foice and efficiency of this vital and active princi- 
ple of the constitution. Our late history and experi- 
Portner ^^^^ attest the straits to which the nation can be re- 
Recker duced, and the responsibilities it must assume in de- 
Caze- fending its existence against domestic violence. In 
nove. ^Q^ qI pg^|. emergencies, and the future exigencies of 
the country, arising from wars foreign or domestic, it 
seems to me extremely hazardous and impolitic to 
deny to Congress any of those incidental powers 
which are exerted by the State in coercion of taxes, 
and in subjecting delinquent lands to forfeitures. To 
dilate upon the abuses, actual or fancied, of such 
poweBs, and the harshness of such measures, falls far 
short in my view of demonstrating any constitutional 
inhibition against the exercise of the former, or the 
adoption of the latter. It will be conceded that the 
110] powers of Congress and the States in the laying and 
collecting of direct taxes, are co-extensive and alike 
unlimited; but the effort is now made in these cases 
to establish an exception in this — that the States can 
exact forfeiture upon default in non-payment of taxes; 
but (/ongress cannot, because such forfeiture is not 
necessary to the collection. Is not the principle, how- 
ever, in both cases, precisely the same ? Is not the 
forfeiture alike conditioned upon the default ? And is 
it anything more oi less than a begging of the ques- 
tion to assume, as this reasoning purports, that this 
forfeiture, when imposed by Congress, does not pro- 
mote the same end and designs which the State seeks 



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COURT OF APPEALS OF VIBGINIA. 117 

to accomplish ? Surely the forfeiture, in both in- 1868. 
stances, brings into the treasury the taxes, at least, Tem!^ 
and as to the surplus, puts it in trust for claimants ; ^jZI^T" 
and ineid^ntMy removes future obstructions to the v. 
collection of the taxes, by securing settlers acknowl- Siwtee^' 
edging the authority, and answerable to the process ^ 
of the government. v. 

By this reasoning, and by these considerations, I 
am led to the conclusion that these acts of Congress P<^^ner 
are constitutional, and that this court is bound by Recker 
them. The next step in our enquiry is to ascertain Caze- 
and fix their proper meaning. It is a mistake to say, "*^^®* 
as it was said in the argument, that the act of June 
7, 1862, was amendatory of the preceding general act 
of August 6, 1861. Such is not the fact. A recital 
only is made of the apportionment of the direct taxes 
by this first act, and of the obstruction of the civil 
authority in its execution, by reason of the rebellion. 
So far from being amendatory^ this second act is a 
total departure from the first, and framed so as to meet 
a wholly diSerent state of facts. It must be remem- 
bered that it was passed /^ra/i/^ hello^ and is lemarka- 
ble as founded on a claim of allegiance from the insur- 
gents, and their liability to payment of taxes as soon as 
the army could get military occupation of their lands or 
persons, and aflford a footing for the operations of the 
tax-gatherer. Hence, this act sets out with charging 
the lands in ^Hhe insurrectionary didricts " with their 
proportion of the direct taxes according to the assess- [111 
ment and valuation previous to 1st January, 1861, 
and besides with a penalty of fifty per cent, of the 
tax, and proceeds to constitute these taxes and penalty 
a lien upon the lands, without any other or further 
proceeding. Then, the owner is allowed sixty days 
after the award of his tax is fixed by the tax commis- 



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118 OOUET OF APPEALS OF VIEGINIA. 

1868. sioners, to pay it and procure a certificate thereof, 

Terai7 whereby his lands are discharged from said tax. But 

-773 — if this not done, '^tbe title of , in and to each and 
Martin ' ' 

V. every piece or parcel of land upon which said tax has 
trastee"* not been paid, as thus provided, thereupon becomes 
forfeited to the United States, and upon the sale here- 
V. inafter provided for, shall vest in the United States 
or in the purchasers at such sale in fee simple, free 
Portner ^^j^^j discharged trom all prior liens, incumbrances, 
Recker right, title and claim." Sect. 7 Act June 7, 1862, 
Caze- ^7th Cong., Sess. II, ch. 98, p. 422. This section is 
nove. ^ijg jjjQgt^ material to the consideration and decision of 
these causes. There are two branches of it; first, the 
forfeiture of title, and secondly, the ultimate vesting 
of that title. To declare the title, in the particular 
event, to be forfeited to the United States, clearly 
means that the title is divested out of the defaulting 
owner, and devolved upon the United States. It does 
not say that the delinquent lands shall be forfeited; 
but the title of the owner of them shall be lost to him, 
and forfeited to the United States. But how and for 
what ^purpose forfeited ? The law itself gives the 
reply — not to be held by the United States for its 
own use, but to be sold for payment of taxes, penal- 
ty and costs ; and that sale, under the scheme of the 
law, becomes the appointed mode in which th^ title 
ultimately vest^. Kow the condition of this sale is to 
the highest bidder, but in case no one bids to the 
amount of the penalty and costs, then it may be 
struck oflP to the United States at that sum. 

By the subsequent amendatory act of February 6, 

1121 1863, the privilege of bidding by the commissioners 

for and on behalf of the United States was enlarged 

to the extent of two- thirds of the assessed value; and 

in cases of lands selected under the direction of the 



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C?OUBT OF APPEALS OF VIRGINIA. 119 

President for government use, for war, military, 1868. 
naval, revenue, charitable, educational or police pur- xerm^ 
poses, the commissioners, under the President, were "TT'I^ 
at liberty to bid for them and have them struck off to v. 
the United States. In this way, the law appointed trustee. ' 
and designated two classes of purchasers at the sale — ^ 
first the highest bidders, and secondly the United v. 
States, acting through the commissioners, and subject 
to the restrictions of these acts. The United States, l'^'^"®'' 
as well as the highest bidders, might be purchasers at Recker 
these tax sales. Sections 9th, 10th and 11th of the caze- 
act of June 7, 1862, provide for the leasing and sell- ^^^®- 
ing the lands thus bought by the United States. It 
is specially noticeable that the 11th section employs 
in this connexion the significant phrases, ^^said lands 
vested in the United States^^^ ^'such lands as may be 
unimproved and vested in the United States.'*'* When, 
therefore, the latter clause of this 4th section declares 
that *'the title, upon the sale hereinafter provided for, 
shall vest in the United States or the purchasers at 
such sale," it has exclusive reference to the United 
States aE a purchaser^ and not . as the sovereign^ to 
whom the forfeiture had been declared in the preced- 
ing clause. To my mind, it does not admit of a 
doubt, that the forfeiture is absolute and unqualified, 
and is not in any wise modified or restricted by this 
latter provision for the vesting of the forfeited title. 
The question is asked, why postpone the vesting of 
title to the date of the sale, if it was already in the 
United States by reason of the forfeiture ? I answer, 
because the forfeiture puts it in the United States as 
the Lord para/mount^ and for the purpose of a sale to 
raise the taxes whose non-payment was the only jus- 
tification of the forfeiture; and the vesting oi the title [113 
in the United States pertains to its other character as 



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120 CJOUKT OF APPEALS OF VIKGtNIA. 

1868. a purchaser at its otv n sale. This interpretation arises 
TermT naturally out of the whole scheme and policy of the 
— law, reconciles the two clauses, which are supposed 
V. to conflict, and removes from this important section 
S^stee!*' the charge of tautology, or else coatradiction. I con- 
elude, therefore, that this section simply means, that 
V. upon the specified default, the lana becomes forfeited 
to the United States, as a sovereignty^ whose rightful 
Portner ^j^^ necessary demands had been defeated by this de- 
Recker fault; and is thenceforth held by the Government for 
Oaze- ^^ purpose of a sale to raise those dues ; and that 
nove. whenever, at such sale, the United States shall be au- 
thorized to bid and buy, the title shall thereafter be 
vested in the United States, as ^xxah. purchaser, I need 
. scarcely add, that in my view the land is sold not as 
the property of the delinquent tax-payer, but as the 
property of the government. 

We have now, in the natural course of this enquiry, 
reached another important point in this controversy; 
and it is as to the principle that underlies and regu- 
lates 7'edemption, That we may have a clearer view 
of the question here made, let us first state the succes- 
sive provisions of the different acts upon this particu- 
lar point. I will not go further back than the act of 
June 7, 1862; for as I have already stated, that was 
a new and remarkable precedent growing out of the 
several ties of the Union and the anomalous conditioD 
of the citizens of the revolted States. By this act of 
1862, the right of redemption within the prescribed 
limit of sixty days after sale, was not restricted to 
the owner, but was extended in terms to ^"^any loyal 
person having lienor interest;^'* and in the case of 
''minors, insane, non-resident aliens or loyal citizens 
beyond seas," a further period was allowed of two 
years from the sale. This term of sixty days was en- 



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COURT OF APPEALS OF VIRGINIA. 



121 



larged to one year, for the production of proof before 
the commissioners that the applicant for redemption 
had taken no part in the rebellion, and had been 
thereby prsvented from the payment of taxes; where- 
upon he, being the owner, was to be allowed by the 
commissioners further time to redeem, not exceeding 
two years from the day of sale. The amendatory act 
of February 6, 1863, merely enlarged the capacity of 
the government to acquire these delinquent lands at 
its own sales. But by the act of March 3, 1865, another 
con'lition was imposed upon redemption, namely, that 
the applicant shall swear that he had taken no part in 
the rebellion, nor given aid or comfort thereto, and 
shall satisfy the commissioners of the 'truth of such 
oath. 

Here, then, the question arises upon these successive 
enactments, whether it was competent to Congress, 
after the right of redemption was once defined and 
pr^cribed, to change or alter it so as to divest or 
affect rights that had once attached. And this de- 
pends upon the legal effect of such laws, as impairing 
contracts, or destroying vested rights. If this right 
of ledemption is to be regaided in the nature of a 
v^ted right held upon valuable consideration by con- 
tract or otherwise, under and by virtue of the laws of 
Congress, there would be leason to doubt its power 
to superadd new conditions thereto, by subsequent 
laws; but if, on the contrary, this is to be deemed a 
mere legislative boon, there would seem to be no valid 
or reasonable objection to the power of Congress, by 
a retroactive law, to lay new conditions on its bounty 
or to withdraw it altogether. An analogous question 
was decided by this court under the Confederacy, 
touching the competency of the Confederate Congress 
to alter its substitute law so as to aflfect the rights of 
Vol. XVIII — 16 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 
[114 



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122 COURT OF APPEALS OF VIRGINIA. 

1868. the principals and make conscripts of them, notwith- 
Term!^ standing their purchcLsed exemption under previous 
"77" laws. Burroughs v. Peyton^ and Ahraharas v. sam4^ 
V. 16 Gratt. 470. Judge Robertson, who delivered the 
trustee/ ^P^^i^^ of the ccurt, held that '^substitution was 
Bennett P^^^^^*®^ ^s an act of grace and favor on the part of 
V. the government, and not as a matter of contract." 
He went into a review of authorities to show that 
Portner <<rigtits and interests growing out of legislative 
Recker measures of public policy, did not partake of the na- 
Oaze- ture of contracts ; and although acquired under them, 
1 \^^ were not to be considered as violated by subsequent 
legislative changes which might destroy them." He 
quoted with especial favor the language of Justice 
Campbell in the case of The State Bank of Ohio v. 
Knoop^ 16 How. U. S. R. 369; and applied it to the 
cases before him: *^A plain distinction exists between 
statutes which create hopes and expectations, and 
those which form contracts. ' ' To which of these cate- 
gories these acts of Congress belong, is manifest upon 
their own perusal, and cannot be made plainer by ar- 
gument or statenc ent. 

Having thus given my views on the constitutionality 
of these laws, and the interpretation to be placed on 
them, I have only now to dispose of the several points 
submitted to us for decision in these causes. After the 
advertisement of, but previous to, these sales, ^hich 
all occurred in the month of January, 1864, applica- 
tions and offers were made to the commissioners for 
the payment of taxes and charges, but rejected because 
not made by the oicner in person^ as required by the 
acts ot Congress. In the case of Hunter, the offer 
was made by a tenant of part of the premises; in the 
case of Cazeno^e, by one in possession, but not under 
any agreement with the owner; and in the case of 



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COURT OF APPEALS OF VIRGINIA. 



123 



Mrs. Fowle's trustees, by a friend of hers. If we are 
to be governed by these laws, we must look to them 
for the description of those entitled to this privilege 
of redemption. If these laws had been applicable to 
a normal state of society and the prevalence of civil 
rule; if the stringent nature of these provisions did 
not contemplate the accomplishment of other inci- 
dental objects of public policy, to which the collection 
of the tax was legitimately accessory, I should be dis- 
posed to conform to the liberal i ule laid down in the 
case of Dubois v. Hepburn j 10 Peters 1, 'Hhat it was 
not necessary for the purpose of justice, or to effectu- 
ate the object of such tax laws, that the right to re- 
deem should be narrowod down by a strict constnic- 
ticn, and that any person who has an interest in the 
lands sold for taxes should be considered as the owner 
thereof for the purposes of redemption." The oiigi- 
nal act of August 6, 1861, was framed in this spirit, 
and gave this right to 'Hhe owners, their heirs, exe- 
cntois or administrators, or any person in their behalf. 
But when Congress came to legislate for a different 
state of things, and to send its tax-gatherers after its 
advancing armies in order to make the lands in mili- 
tary occupation tributary to the public fisc, and to 
recall the insurgent propiietors as rightful subjects of 
future as ^ell as present taxation. Congress perceived 
the necessity of abandoning, so far as the insurrec- 
tionary districts were concerned, its enactments for 
the districts where its authority was acknowledged 
and could be enforced by civil processes, and of sub- 
stituting therefor in such "insurrectionary districts" 
a different system, which, while it contemplated the 
raising of the direct taxes as its primai^y object, com- 
bined therewith the secondary and legitimate design of 
encouraging the return or promoting the settlement 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 
[116 



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124 COURT OF APPEALS OF VIBOINIA. 

1868. of a loyal population. We cannot deny that these 
TeiSk^ lands were part and parcel of the public domain ; as 
""^~^ such, liable to taxes, and so to be treated in the finan- 
V. cial policy of the Government as to subserve the needs, 
trustee. * both future and present, of the treasury. To deny to 
Bennett Congress all but the simple function of wresting these 
V. taxes from delinquent lands (and that, too, in the 
gentlest and most indulgent manner) during the lucky 
Portner moments of a precarious military occupation, and to 
Recker deprive that body of the incidental power of fostering 
Caze- this source of income for future as well as present exi- 
lllT S^^^^^s, would, in my view, weaken the government, 
and render it an easy prey to disaflFected and rebellions 
subjects. While, therefore, entertaining no doubt of 
the rightful authority of Congress so to legislate, I am 
constrained to believe that, on this particular point as 
to the person entitled to redeem, the act of June 7, 
1862, as contrasted with that of August 6, 1801, is 
perfectly plain and unambiguous. I do not see how 
any one can misundei stand or cavil about its terms. 
They are : ''The owner, or some loyal person having 
lien or interest, &c., who upon appearing in person 
before the commissioners, taking oath to support the 
constitution of the United States, and paying tax, 
penalty, interest and costs, may redeem said lands 
from said sale." It is no longer ''the owner or any 
one in his behalf," according to the terms of the act 
of August 5, 1861 ; but "the owner, &c., who appears 
in person,'*^ I do not think the tenant, in the first 
case, the squatter in the second, and the friend in the 
third, are within the terms or design of this descrip- 
tion. 

The appellee Hunter and Mrs. Fowle allege that 
they were improperly denied the right of redemption 
within the two years allowed them, because of the 



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COURT OF APPEALS OF VIRGINIA. 



125 



V. 

Caze- 
nove. 



[118 



rainority of the one and the coverture of the other. 1868. 
It is contended by the appellants' counsel that the ap- xerm?^ 
plication did not pertain to them personally, but to "7r"T: 
the guardian and the trustees. This objection seems v. 
to me too technical. I concede their capacity to apply truBtee!** 
for redemption ; but when they applied, Congress had 3^^^^^ 
laid them (as I have endeavored to show Congress had v. 
a right to do) under new conditions by the act of March 
3d, 1865. With these conditions they declined to Po^ner 
comply, as I presume they could not, and thus lost the Recker 
privilege which they were led 'Ho hope and expecV^ by 
the previous acts. Whatever relief, therefore, they 
may ihink proper to seek, it must be sought from the 
legislative dispensers of such favors, and not from the 
courts, who expound and execute the laws such as 
they are. 

But it is objected, that there was no necessity, nor, 
indeed, excuse for selling the entirety of these lands; 
that they admitted of division for sale, and a small 
portion of each would have brought the amount of the 
government dues. There are two suflRcient replies to 
this objection. First — It is precluded by the eflFect 
which the act of Congress gives to the certificate of 
sale. In one part of the seventh section of this act it 
is declared, that ^*this certificate shall be leceived in 
all courts and places as prima facie evidence of the 
regularity and validity of said sale and of the title of 
the purchaser;" and in the concluding ^r6>m>o of that 
section it is further said of this certificate, it shall only 
be affected as evidence of the regularity and validity 
of the sale by three particulars, namely : 1. That the 
lands were not subject to tax. 2. That the tax was 
paid previous to the sale; or, 3. That the property 
had been redeemed conformably with this act. The 
purchaser, therefore, is entitled to rest upon this cer- 



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126 



COURT OF APPEALS OP VIRGINIA. 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



119] 



tificate, as determining the validity of the sale, and of 
his title under it, unless it is impugned by proofs fall- 
ing under one or the other of the heads already indi- 
cated. The complaint here affects the question of the 
regularity and validity of the sale, and is expressly 
precluded by this clause of the law. But if this were 
out of the way, or we could go behind it for purposes 
of enquiry into the legality of the sale, is it true that 
it was against law to sell the whole instead of so much 
as was needed for taxes and charges ? Of course this 
must be decided by the language of the law. It is not 
for us to usurp the place of the lawgiver, and detei- 
mine what in our opinions should have been the penal- 
ties, if any, to be affixed, under the circumstances, to 
this default in the payment of taxes. We have to 
abide the will of Congress, if constitutionally expressed, 
however it may conflict with our own notions of justice 
or liberality. When we revert to the first law, and 
contrast its direction to sell ''so much of the real^ estat't 
as may he necessary ^^"^ &c., with the total omission of 
such language in the act applicable to "the insurrec- 
tionary districts," and the sustitution therefor of the 
broad and peremptory order for the sale of "the said 
lots and parcels of land, ' ' without any limitation what- 
soever of quantity, it seems tc me impossible to resist 
the conclusion that this difference was designedly made 
by Congress with the views and policy clearly attested 
by all the distinguishing and remarkable features of 
this law. The commissioners were left no discretion, 
as in the first act, touching the quantity to be sold; 
but were required by Congress to sell all that was as- 
sessed to the delinquents. The sales were just such 
as were required by the act, and if excessive and un- 
necessary according to our views, must be deemed to 
have received the deliberate approval of Congress. I 



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OOUBT OF APPEALS OF VIRGINIA. 



127 



V. 

Caze- 
nove. 



cacDot, therefore, acquiesce in the propriety of vacat- 1868. 

ing these sales, though conformable to the will of Con- xeim^ 

gress, because of the practicability of reconciling the ~~^^- 

enforcement of taxes with a more indulgent mode of v. 

J . Snowden, 

proceedmg. trustee. 

An immunity is claimed for the appellee Hunter on ^ 
accoont of his pardon on the 4th September, 1865, by v. 
the Jr'resident, which is set forth in the special verdict 
of the jury in his case. This is based on the idea that P^'^^^'' 
he had a vested right of redemption under the act of Recker 
June 7, 1862, which was taken away by the act of 
March 3, 1865; and that this subsequent pardon 
avoided this latter act, and restored to him his rights 
under the former. The authority of the late cases of 
Be parte Garland, 4 Wall. U. S. R. 333, and Cum- 
mings v. State of Mismttri, Id. 277, is invoked to sus- 
tain this position. These cases were held to be em- 
braced by the constitutional prohibition against bills 
of attainder and ex post facto laws ; and Mr. Justice 
Field, who delivered the opinion of the court, rested 
it on the principle that *'the attorney does not hold 
his office as a matter of grace or favor, ^'^ and accord- 
ingly '^his light to it is soraething more than a mere 
indulgence, revocable at the pleasure of the court or at 
the command of the Legislature." 4 Wallace 379. 
What, therefore, I have already said to fix the charac- 
ter of these acts, and to free them from anything in 
the nature oi ex post facto penalties, contracts or vested 
rights, must suffice to indicate the proper discrimina- 
tion between the cases, and the grounds of my dissent 
from the pretensions thus advanced for this appellee 
on the score of his paidon. 

The construction which I have placed on these acts 
has been assailed with much ingenuity because of an 
imputed inequality or want of uniformity in their 



[120 



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128 COUET OF APPEALS OF VIRGINIA. 

1868. operation under the theory I have advanced. The 
TermT reasoning I have pursued would incidentally furnish to 
^^"T: the thoughtful enquirer the answer I would make to 
V. this agrument. But to prevent misapprehension, I 
truatee"' deem it proper to take a more direct notice of it. The 
g^ precise allegation is, that these laws operate unequally 

V. upon the loyal and disloyal subjects of the govern- 
ment. If by this it is meant to assert that there is a 
Portner different mode of enforcing these taxes as betireen 
Recker these two classes, it is not true nor consistent with any 
Caze- theory of their operation. The taxes are exacted, and 
nove. ^j^^ forfeiture declared alike of the proprietor, whether 
he be in the Federal or the Confederate service; the 
same means of collection from him or his lands are 
adopted, whether he be an adherent of the United 
States, or in arms, or conspiring against it; so far as 
the great primary object is concerned of raising taxes, 
the lands are impartially and uniformly proceeded 
against, no matter where or who the delinquent pro- 
prietor may be; and the same terms and opportunities 
of paying before forfeiture are offered to all, whether 
121 ] loyal or disloyal. It is very true that the same chances 
of relief were not enjoyed by all; that those who were 
in arms against the government could not be notified 
of their assessments or prepared to meet them with 
equal facility with those who were loyal. And it 
would be sheer folly to suppose that this was not 
clearly f orseen and contemplated by Congress, and ad- 
vantage taken thereof to carry out a decisive policy 
for the fostering of its revenues from direct taxes, and 
the occupation and settlement of abandoned and for- 
feited lands in ''the insurrectionary districts-' with a 
loyal and tax-paying people. But surely it would not 
be becoming in those who abjured the govenmient and 
left their homes to aid the rebellion, to plead in their 



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OOUBT OF APPEALS OF VIRGINIA. 129 

own behalf disabilities voluntarily incurred by them, 1868. 

and from which the government would willingly have xerm?^ 

saved them. ~Tr'T' — 

Martin 

But if it is meant to say that after forfeiture was v. 
incarred and the government was dealing with its own trustee^' 
property, it dealt out its "acts of grace and favor'' '^ "^ Be 
the privilege of redeeming, unequally and not uni- v. 
foimly, as between the loyal and the disloyal, I cannot 
gainsay it. But it seems to me, with entire deference P^^ner 
to others, to be an abuse of language to charactize Recker 
sach treatment as punishment or confiscation in dis- caze- 
guise. "^^®- 

I have thus considered, with care, and, I trust, fair- 
ness, all the material points raised in this case by the 
able counsel of the appellees on their behalf. I have 
not thought proper to comment on the authorities that 
were cited. These cases aie eminently 8ui generis^ 
depending on the construction of the acts of Congress, 
and can derive little, if any, elucidation from other cases 
or the apposite treatise of Black well. 

I now turn briefly to an exception of the appellants 
to the refusal of the court to allow a removal of these 
causes to the United States Circuit (Jourt. It is con- 
tended that these cases are embraced by the act of 
Congress of March 3, 1863, commonly known as the [122 
Habeas Corpus Act. I do not concur in that view. 
The language of that act will not apply to cases like 
those at bar, to try the title to and the possession of 
lands; and in nowise partake of the nature of those 
suits for "wrrest^ imprisonment^ trespass^ wrongs or 
omissions ^'^'^ &c., specially and alone contemplated by 
that act. The motion for removal was, therefore, 
piopeily overruled. 

I cannot conclude my investigation of these cases 
without expressing my sensibility to the sacrifices 
Vol. xviii — 17 



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130 OOUET OF APPEALS OF VIRGINIA. 

1868 which the appellees have sustained. The amount of 
TermT taxes was paltry as compared with the value of the 
^ . — forfeitures for non-payment. While under State laws 
V. it may be that the magnitude of these penalties have 
tm^ee"' been approximated, if not equalled, yet it cannot be 
g said that the impediments in the way of complying 

V. with the demands of the government, or the excuses 
for non-compliance, were at all equal. Ko one who 
Portner considers the peculiar character of our late struggle, 
Recker the natuie of our two-fold allegiance, the conflict of 
Oaze- theories co-equal with the origin of our national govern- 
nove. ment, and the magnitude of the war waged by the re- 
volted States under such a complete organization of 
an actual government as to exact from the United 
States, as well as foreign nations, the recognition and 
the rights of a belligerent power, can fail to extend 
to the private citizens of such States the consideration 
and indulgence with which their participation in the 
revolt should be extenuated. But this is a matter not 
cognizable by this court; and whatever relief is due to 
such considerations must proceed from the august will 
of the nation, whose disposition, at the proper time, 
to redress its citizens for unreasonable forfeitures, 
ought not to be doubted. 

These views, of course, conduct me to the conclu- 
sion, that upon the facts agreed in one case, and found 
by special verdict in the two others, the law was for 
123 1 the defendants; and that the judgment below should 
be reversed in all the cases. 

JoYNEs, J. These are suits instituted by the several 
defendants in error against the several plaintiffs in 
error, for the recovery of lands sold by the commis- 
sioners of the direct tax, under the act of Congress 
passed June 7, 1862, and purchased by the plaintiffs 



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OOUKT OF APPEALS OF VIRGINIA. 



131 



Caze- 
nove. 



in error. The validity of these titles is the main ques- 1868. 
tion in the cases, the facts of which, so far as it is Term7 
necessary to consider them, are substantiaUy the same. -^^^;^ 

By the act of Congress of August 5, 1861, (12 Stat. v. 
at Large, 292,) a direct tax of twenty millions of dol- trultoi"* 
lars jper annum was laid upon the United States, of ^^ 
which the sum of $937, 550. 66f was apportioned to v. 
the State of Virginia. This act contained minute and 
elaborate provisions for the valuation and assessment of Po^'^er 
the lands upon which the tax was laid, and provided Recker 
for the collection of the tax by distress of the goods 
and chattels of the tax-payer, and in case goods and 
chattels sufficient to satisfy the tax could not be found, 
by a sale of so much of the land assessed with the tax 
as should be sufficient to satisfy it, with an addition 
of twenty per cent. This act also provided thiit if, 
at the time of its going into operation, the people of 
any State should be in rebellion against the authority 
of the United States, so that the laws of the United 
States could not be executed therein, it should be the 
duty of the President to execute the provisions of the 
act in such State as soon as the authority of the United 
States should be re-established. The owner or super- 
mtendent of any property charged with tax and adver- 
tised for sale was allowed to prevent a sale by pay- 
ment of the tax, with an addition of ten per cent,^ at 
any time before sale; and the owner, or his represen- 
tatives, or any other person on his or their behalf, was 
allowed, at any time within two years after sale, to [124 
redeem any land sold, by payment to the collector, for 
the use of the purchaser, or his heirs or assigns, of the 
amount paid by the purchaser, with interest thereon 
at the rate of twenty per cent. 

There are many other provisions in the act of 
August 5, 1861, but those which have been mentioned 



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132 , COURT OF APPEALS OF VIRGINIA. 

1868. are sulHoient to indicate the general character of the 

Term? system established by it. 

. — On the 7th day of June, 1862, Congress passed an 
V. act entitled '*an act for the collection cf direct tax^ 

trostee"' i^ insurrectionary districts within the United States, 

g^ and for other purposes." (12 Stat, at Large, 422.) 

V. The 7th section of that act was amended by an act 

^'^"*^''' passed on the 6th day of February, 1863. (12 Stat. 

Portner ^t Large, 640.) 

Recker By the first section of the act of June 7, 1862, it 
Gaze- ^^SiS enacted, that when in any State, or portion of a 
nove. state, by reason of insurrection or rebellion, the civil 
authority of the United States is obstructed, so that 
the act of August 5, 1861, cannot be peaceably exe- 
cuted, the direct taxes by said act apportioned among 
tne several States respectively shall be apportioned 
and charged in each State or part thereof, in which 
the civil authority is so obstructed, upon all the lands 
and lots of ground therein not exempted, as the same 
were enumerated and valued under the last assessment 
and valuation thereof under the authority of such 
State, prior to the 1st day of January, 1861 and each 
parcel of land was declared to be, by virtue of said act, 
charged with its proportionate part, according to 
value, of the t«x apportioned to such State by the act 
of August 5, 1861; and it was further provided, that 
in addition thereto a penalty of fifty jper cent, of said 
tax should be charged on said lands. The second sec- 
tion provides that the President shall, on oi before the 
1st day of July, 1862, declare by proclamation in what 
States, or parts of States, such insurrections exists; 

125] and that thereupon the said several parcels of lands 
shall become charged with th^ir respective portions 
of the said direct tax, and that ^*the same, together 



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OOURT OF APPEALS OF VIBGINIA. 



133 



with the penalty, shall be a lien thereon, without any 
other or father proceeding whatever." 

The President issued his proclamation, in pursuance 
of this provision, on the 1st day of July, 1862, and 
that part of Virignia in which the lands in controversy 
lie \^ as declared to be in iusurrection against the 
authority of the United States, so that the provisions 
of the act of August 5, 1861, could not be peaceably 
executed theieiu. 12 Stat, at Large 1266. 

Section three provides, that the owner of any parcel 
of land may, within sixty days after the tax commis- 
sioners shall have fixed the amount, pay the tax thus 
charged thereon into the treasury or to the commis- 
sioners, by virtue whereof the land shall be discharged 
frcm said tax. The fourth section is in the following 
words : ** And be it further enacted, that the title of, 
in and to each and every piece or parcel of land upon 
which said tax has not been paid, asjibove provided, 
shall thereupon become forfeited to the Unit^ States ; 
and, upon the sale hereinafter provided for, shalt'^test 
in the Unittjd States, or in the purchaser at such sale, 
in fee simple, free and discharged from all prior liens, 
incumbrances, right, title and claim whatsoever." 

Subsequent sections, which need not now be noticed 
more particularly, provide for the appointment of tax 
commissioners, who are to enter upon the discharge 
of their duties whenever the commanding general of 
the forces of the United States, entering into any such 
insurrectionary State or district, shall have established 
the military authority of the United States throughout 
any parish, district or county of the same, for the sale 
of forfeited lands; for striking them off to the United 
States in certain cases; for the disposition by sale or 
lease of the lands so struck ofif to the United States, 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 



nove. 



[126 



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134 



COURT OF APPEALS OF VIRGINIA. 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trastee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



(fee, <fec. Some of these provisions will be noticed 
more particularly hereafter. 

It is contended by the counsel for the plaintiffs in 
error, that by the provisions of the fourth section of 
the act of June 7, 1862, above quoted, any parcel of 
land upon which the tax is not paid within sixty days 
after the amount of it is ascertained, as provided by 
the third section, becomes, at the end of the sixty 
days, forfeited to the United States in such a sense 
that it, "ipso faoio^ ceases to be the property of the 
former owner, and becomes the absolute property of 
the United States, so that when it is afterwards sold, 
it is sold as the property of the United States, and 
that this loss of the property is inflicted upon the 
owner as a penalty for his default in the non-payment 
of the tax within the sixty days. This is the funda- 
mental question in th^ present oases. 

This section does not define, in terms, what is to be 
the effect of the forfeiture which it declares shall take 
plpxie, so that we must resort to the common rules of 
construction to ascertain it. 

It is incumbent upon the plaintiffs in error to make 
it clear, beyond all doubt, that it was the design of 
Congress to inflict such a forfeiture as they contend for. 
An intention to deprive a citizen of his freehold with- 
out trial, and in a manner never before practiced by 
the United States, will not be inferred by the court 
from general oi ambiguous language, which will ad- 
mit of a different interpretation. And in putting a 
construction upon the act of June 7, 1862, we must 
bear in mind the reasons for its enactment. The act 
of August 5, 1861, had provided for two great leading 
objects: 1. The proper assessment of the tax upon 
the several parcels of land; and 2. The collection of 
the tax so assessed. It being found impossible to exe- 



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Martin 

V. 



COURT OF APPBAL8 OF VIKGINIA. 135 

cute the provisions of that act in the insurrectionary 1868. 
districts, Congress, by the act of June 7, 1862, Term^ 
adopted other provisions for the accomplishment of 
the same objects in those districts, which were deemed 
better suited to their condition and more likely to be S^tee°* 
effectual. That this was the reason for passing the ^ 
act of June 7, 1862, appears distinctly from the first v. 
section. Any ambiguous words or provisions in that 
act should be construed with reference to those objects. P^^ner 
The language of the fourth section of the act of Recker 
June 7, 1862, does not require the construction con- caze- 
tended for. The terms ^'forfeited to the United »^y^^7 
States" do not necessarily import that the title shall 
be thereby divested out of the owner and vested in 
the United States. It is a rule of the common law, 
that where an act of Parliament declares that a person 
'*8hall forfeit" his lands to the King, or that a per- 
son's lands *' shall be forfeited" to the King, the title 
to the lands is not divested ot t of the owner and vested 
in the King by the mere force of the forfeiture. An 
inquest office is necessary for that purpose. And, 
therefore, when a man is attainted of high treason, 
whereby all his lands are forfeited to the King, the 
freehold remains in him until office found for the 
King, so that he shall be tenant to every prescipe, 
Plowden Com. 486. Mr. Blackwell, in his work on 
Tax Titles, ch. 32, speaking of the effect of statutes 
which provide that lands shall **be forfeited to the 
State" for the aon-payment of taxes, regards it as '*a 
serious question whether an inquisition is not neces- 
sary, in order to div est the title of the rightful pro- 
prietor and vest it in the State," and collects several 
cases in which that view has been maintained. It is 
otherwise if the intention of the Legislature is clearly 
indicated that the title, shall pass by the mere force 



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136 COURT OF APPEALS OF VIRGINIA. 

1868. of the forfeiture. Wildes lessee v. Serpell, 10 Gratt 

Term7 4r05; Fairfaxes devisee v. Hunter^ s lessee^ 7 Cranch 

"M^rthT"^* 603; United States \, Repentigny, 5 Wall U. S. 

v.'" E. 211. 
Swtee"' The quer»tion, therefore, is whether the intention- of 
g Congress is clearly indicated in this case, that the title 

V. of the owner shall be divested cut of him, and vested 
in the Untied States, by the mere force of the forfei- 
Portner ^^^^ 'pj^^ language of the section seems plainly to 
Recker indicate the contrary. It declares that ''upon the 
Gaze- sale" thereafter provided for, the title ''shall vest" 
1 9fiT^ ^^ *^® United States, or in the purchaser, at the sale. 
Section 7, which provides for the sale of the forfeited 
land, as it originally stood, and the same section is 
amended by the act of Februay 6, 1863, provides that 
the land shall be bid off for the United States by the 
tax commissioner, in case it does not bring a certain 
price fixed by the act, in which case it is declared by 
section 4, the title shall, upon such sale, vest in the 
United States. What need was there to provide that 
the title should vest in the United States, in case the 
land should be bid off fur them at the sale, if it was 
already vested in them by the forfeiture ? Indeed, 
how could the title by possibility vest in the United 
States by their thus becoming purchasers at the sale, 
when it was already vested in them by the mere force 
of the forfeiture ? The provision in question, there- 
fore, plainly implies that the title does not vest in the 
United States by force of the forfeiture, and that it 
will do so only in the event that the l9,nd shall be bid 
off for the United States at the sale. 

The act of June 7, 1862, provides for two sales. 
The first sale is to be made of each several parcel of 
land upon which the tax remains unpaid, after adver- 
tisement stating distinctly the amount due on each, 



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OOUET OF APPEALS OF VIRGINIA. 137 

(sectons 7 and 14,) and each parcel is to be sold sepa- 1868. 
rately for not less than the tax, penalty and costs ^^^ 
charged upon it, and ten j}er cent, interest on said "7r~: — 
tax. The act provides that this sale is to be made v. 
'*in case the taxes charged upon the said lots and par- tnwt^°' 
eels of land shall not be paid," as provided by the ^ 
third section. The act of Februaiy 6, 1862, recog- v. 
nizes the right of the owner, as we shall see 
hereafter, to prevent a gale by appearing in person Po^^er 
befoie the commissoners, and paying the tax, with ten Recker 
per cent, interest and the cost of advertising the land c^ze- 
for sale, and rncognizes his right also, without such "^/foQ 
payment, to control the sale by directing the land to 
be struck off to a purchaser other than the United 
Stat^, at less than two-thirds of its assessed value. 
At this sale the United States becomes a bidder for 
the land. It is to be struck off to them at a sum 
not exceeding two-thirds of the asssesed value, unless 
some person shall bid a larger sum. But within that 
limit the United States competes for the land with 
other bidders. Moreover, the act does not undertake 
to confer a complete and perfect title on the purchaser 
at this sale, but provides redemption by the owner, or 
by any loyal citizen having an interest in or lien on 
the land. There is another clause in the act of Feb- 
maiy 6, 1863, which is very significant. It is that 
which provides that lands which may be selected, 
under the direction of the President, for government 
use, may be bid off for the United States at the sale. 
Now the long established and uniform course in the 
disposition of lands belonging to the United States, is 
to reserve from sale such parcels as are selected for 
government use. The land belonging already to the 
United States, this is the natural and convenient 
course. Why the departure in the act of February 6, 
Vol. xviii — 18 



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138 COURT OF APPEALS OF VIRGINIA. 

I8as. 1 8()3, from this reasonable and settled usage, if the land 
TermT ^ ^^ ^^^^ under that act belongs already to the United 
— States ? Why, in any case, should land that already 
V. belongs to the United States, be sold to enable the 
S-ustee"' United States to hold it for government use ? The 
provision allowing such lands to be sold, and provid- 
V. ing for their being bid off for the United States at the 
sale, affords a very strong implication that Congress 
Portner ^jj^ jjq^^ understand them to be already before the sale 
Recker the property of the United States. 
Caze- Section 11 provides for a sale, if directed by the 
1 *?m^ President, of lands bid in for the United States at the 
first sale. In this second sale, the original subdivision 
of the parcels of land is not regarded. The act also 
undertakes to give a complete and perfect title to the 
purchaser at this sale, and directs that the whole pro- 
ceeds of sale shall be paid into the treasury; one 
moiety of which it appropriates to certain specified 
purposes. There is no provision for paying into the 
treasury the surplus of the proceeds of the first sale. 
Thus, the whole scheme of the act indicates, that 
at the first sale the land is sold as the property of the 
delinquent tax-payer, and not as the property of the 
United States ; while at the second sale, it is sold as 
the property of tlie United States. 

The eleventh section providing for a sale of lands 
bid off for the United States, contains no reservation 
of rights of reaemption attaching in the first sale. 
And the provision of the act of February 6, 1803, 
providing for bidding off for the United States such 
lands as may be selected for government use, implies 
that there shall be no right of redemption in such 
cases, for such a right would defeat the object of the 
provision. It may be argued that these things show 
the United States does not acquire title as a purchaser 



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OOUBT OF APPEAL8 OF VIRGINIA. 



139 



at the sale in like manner as other purchasers, but 
holds by some other and better title. But all they 
can be really said to prove is, that the right of le- 
demption from the first sale is not reserved to the 
owner as against the United States, in case they shall 
become the purchaser, but only against other purcha- 
seis. Whether that is the true construction, it is not 
necessary to enquire. 

It was contended in the argument, that the forfei- 
ture insisted on was provided by Congress as a penalty 
for non-payment within the time prescribed by law, 
so as to induce the owner of the land to make prompt 
payment. It was further contended, that the consti- 
tution conferred upon Congress the same power to co- 
erce the collection of taxes which the States possessed; 
that the States possess the power of forfeiting lands 
for the non-payment of taxes, and exercised it before 
the adoption ot the constitution; in proof of which 
reference was made to a statute of Virginia said to 
have been enacted in the year 1785. 

But this argument does not justify the conclusion 
that is drawn from it. It is conceded, on all hands, 
that the government of the United States is one of 
limited powers. It can exercise only such powers as 
are conferred upon it by the constitution. The powers 
of a State government, on the other hand, are limited 
only by the constitution of the United States, or of 
the State itself. It does not follow, therefore, that 
because a State legislature may provide that lands 
shall be forfeited to the State in case the taxes due 
upon them are not paid, the same power belongs to 
Congress. That power belongs to the State legisla- 
ture, unless it has been denied to it ; it does not be- 
long to Congress, unless it has been conferred upon it. 

This argument assumes that the forfeiture con- 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 
[131 



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V. 

Hunter. 



140 COURT OF APPEALS OF VIRGINIA. 

1868. tended for was designed, like an ordinary penalty of 
Term7 ^^ ^^ tvfentj per cent of the tax, only as a means of 
^tfartin" ^^ompelling the punctual payment of the tax. But is 
V. that so ? The penalty is wholly out of proportion to 
trustee. ' the object to be accomplished. The law does not pro- 
Bennett ^^^® ^^^^ ^^^ commissioners shall give notice, by ad- 
vertisement or otherwise, that the assessments have 
been made, or that they have entered upon the dis- 
Portner QJ^^xge of their duties in the county. The tax-payer 
Recker may never know what he owes, until he has lost his 
Gaze- land by the forfeiture. The penalty, therefore, is 
"^^®' imposed without actual default. 

I cannot resist the impression that this forfeiture, 
132] if it is su(5h as contended for, was designed really to 
get the land, and not to get the tax. And this will 
appear more clearly from this: that it follows from 
the theory of the plaintiffs in error, that the forfeiture 
does not satisfy the tax, but leaves the party still lia- 
ble to pay it out of his goods and chattels, or other 
lands, under the act of August 5, 1861. The pay- 
ment of this penalty of forfeiture, without payment 
of the tax, will no more satisfy the tax than the pay- 
ment of the penalty of twenty j^er eent.^ without pay- 
ment of the tax, will satisfy the tax, under section 30 
of the act of August 5, 1861. 

The power to collect taxes and to make all laws 
that shall be necessary and proper to carry that power 
into execution, includes all known and appropriate 
means of effectually collecting the taxes, unless some 
such means should he forbidden in some other part of 
the constitution. 18 How. U. S. K. 281. And it 
may be fairly inferred, that when the people of the 
States conferred that power upon Congress, they 
meant to embrace all the means of collecting taxes 
then used and employed by the States, as far as the 



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COUBT OF APPEALS OF VIRGINIA. 



141 



V. 

Caze- 
nove. 



[138 



same were consistent with other parts of the constitu- 1868. 
tion. But it would not follow that they conferred, Tem7 
or intended to confer, the power of forfeiting land . 

absolutely to the United States, as a penalty for the v. 
non-payment of taxes, even if it could be shown that trJ^tee"' 
such a power was then employed by the States. B^^nett 
Where such a power has been exercised by the States, v. 
it has not been as a means only of coercing the pay- 
ment of taxes. It has been employed as a means of ^^^^^^ 
settling titles, as in this State, in the laws applicable Recker 
to the western counties, which were the subject of 
adjudication in several cases reported in 10 Grattan's 
Reports, or for some other purpose besides the mere 
collection of the taxes. 

But if that was not so, this penalty of forfeiture is 
beyond the power of Congress. Such forfeitures pro- 
ceed upon the ground of a breach of the conditions 
upon which every owner holds his land. The doc- 
trine is thus stated in Black well on Tax Titles: 
'* Every owner holds his estate upon the implied con- 
dition that he will furnish a list of his taxable estate, 
and piomptly pays his share of the common burdens 
assessed against the entire community; and if he 
on its to comply with the condition, the paramount 
authority of the State, which is entitled to enter for 
the breach of this condition, comes m, as it has a 
right to do, and declares the estate forfeited for the 
breach of the condition." p. 460. This passage was 
cited by the counsel for the plaintiffs in error, as 
showing the principle, and the only principle, on 
which this class of forfeitures rests. How can this 
principle avail the United States in respect to lands 
the title to which was not derived from them, which 
are not held under their authority, and as to which 
they have not, either actually or in theory, the para- 



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Bennett 



142 COUKT OF APPEALS OF VIRGIKIA. 

1868. mount title ? How can such a right be claimed with- 

Tem7 ^^* trenching upon the local sovereignty of the States, 

"^7- and their paramount title and jurisdiction over the 

V. lands within their limits, which are fundamentalprin- 

trustee. ' ciples of the constitution ? If such a right had be3ii 

claimed for the United States, or been suspected to 

V. result from the provisions of the constitution, while 

it was under discussion, it would undoubtedly have 

Portner aroused the jealousy of the States, and provoked their 

Recker earnest opposition, as being dangerous to State sover- 

Caze- ©igJ^ty. We know, from the history of the times, 

"^ve. ^jjg^^ ^jj^ clause giving to the United States exclusive 

jurisdiction over places purchased by the consent of 

the Legislatures of the States for the erection of forts, 

&c., met w^ith strong opposition on this ground. 2 

Story on Const. 1224. 

The exercise of such a power by Congress as is con- 
tended for in these cases is also inconsistent with the 
fifth article of the amendments to the constitution, 
134] which declares that no person "shall be deprived of 
life, liberty or property without due process of law." 
In the case of Jfurray'^s lessee v. Uoboken Land and 
Improvement Company^ 18 How. U. S. K. 272, the 
question came before the Supreme Court, whether a 
title to land was valid which had been acquired by 
purchase at a sale made by a United States Marshal, 
by virtue of a distress warrant issued by the Solicitor 
of the Treasury against a defaulting collector of the 
customs, in pursuance of the act of Congiess of May 
15, 1820. 3 Stat, at Large 592. This depended on 
the question, whether the distress warrant, in pursu- 
ance of which tha sale was made, was *'due process 
of law, "within the meaning of the amendment to the 
constitution above referred to. 
Mr. Justice Curtis, delivering the opinion of the 



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COURT OF APPEALS OF VIRGINIA. 



143 



V. 

Caze- 
nove. 



court in that case, said: ''That the wan ant now in 1868. 
question is legal process is not denied. It was issued xerai^ 
in conformity with an act of Congress. But is it 'due — 

process of law ?' The constitution contains no de- v. 
scription of those processes which it was intended to Jnistee"' 
allow or forbid. It does not even declare what prin- ^ 
ciples are to be applied to ascertain whether it is due v. 
process. It is manifest that it was not left to the leg- 
islative power to enact any process which might be P^^°^** 
devised. The article [fifth amendment] is a restraint Recker 
on the legislative, as well as on the executive and judi- 
cial, powers of the government, and cannot be so con- 
strued as to leave Congress free to make any process 
'due process of law' by its mere will. To what prin- 
ciples, then, are 'w e to resort to ascertain whether this 
process enacted by Congress is 'due process?- To 
this the answer must be two-fold. We must examine 
the constitution itself to see whether the process is m* 
conflict with any of its provisions. If not found to 
be so, we must look to those settled usages and modes 
of proceeding existing in the common and statute law 
of England before the emigration of our ancestors, and 
which are shown not to have been unsuited to their 
civil and political condition, by having been acted on 
by them after the settlement of this country." 

The learned judge then proceeds to show, that from 
the earliest ages of the common law, summary 
methods had been recognized and practiced in Eng- 
land for the recovery of the debts due to the Crown, 
and especially those due from receivers of the revenue; 
that this diversity between what is "due process of 
law" in respect to public defaulters and ordinary pri- 
vate debtors was well understood in this country and 
entered into the legislation of the Colonies, and es- 
pecially into that of the States, aft-er the Declaration 



[13(- 



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144 



COURT OF APPEALS OF VIRGINIA. 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



136] 



of Independence, and before the adoption of the con- 
stitution; that in England and in this country the 
remedy against public defaulters was by summary 
process, without judicial enquiry to ascertain the exist- 
ence and amount of the liability, against the body, 
lands and goods, or against the lands and goods, or 
against the body and goods, corresponding substan- 
tially with the remedy provided by the act of May 
15, 1820. He says: *'As we have already shown, 
the means provided by the act of 1820 do not differ 
in principles from those employed in England from 
remote antiquity, and in many of the States, as far as 
we know, without objection, for this purpcse, at the 
time the constitution was formed." 

It was held, therefore, that the warrant of distress, 
under which the land in that case was sold, was **due 
process of law," with in the meaning of the constitu- 
tion, and that the title acquired under it was valid. 

Can a forfeiture of the land charged with taxes, 
such as is contended for in these cases, be regarded 
as "due process of law," upon the principles estab- 
lished by that case ? Literally speaking, it is not any 
process at all, but operates by force of law, and with- 
out any process or proceeding whatever, except the as- 
certainment by the commissioners of the sum charge- 
able on the land. But that is probably immaterial 

The forfeiture of land to the Crown does not ap- 
pear to have been a means recognized and employed 
in England, at any period of its history, for enforcing 
the payment of taxes or other debts to the Crown. 
If it had been, we should have found such forfeitures 
treated of in the English law books; but we nowhere 
find them mentioned. 

The summary methods employed in England in 
early time for the collection of debts to the Crown 



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COURT OF APPEALS OF VIRGINIA. 



145 



seem to have been turned to purposes of oppression, 
and one of the chapters of Magna Charta provided for 
their restraint. Before that time, the King for his 
debt had execution of the body, lands and goods of 
his debtor, (2 Inst. 19,) but by Magna Charta it was 
provided, that the King should not seize any land or 
rent for any debt as long as the present goods and 
chattels of the debtor suffice to pay the debt, and the 
debtor himself is ready to satisfy therefor. In con- 
formity with this provision, a conditional writ was 
framed, commanding the sheriff to enquire of the 
goods and chattels of the debtor, and if they were 
not sufficient, to extend the lands. Mr. Justice Curtis 
quotes Gilbert as saying, that since the statute 33 
Henry 8, ch. 39, the practice has been to issue the 
writ in an absolute form against lands and goods, 
without requiring any previous inquisitioD as to the 
goods. 18 How. U. S. E. 277. But Lord Coke, in the 
second Institute, gives the form of the writ, which he 
says was the usual process after the statute 3f 33 
Henry 8, and down to his own day, and it is in the 
conditional form above mentioned, requiring a previ- 
ous inquisition as to the goods, and providing for an 
extent upon the land in the event only that the goods 
shall prove insufficient. 2 Inst. 19. And Lord Coke, 
commenting upon this writ, says: '^ Wherefore it ap- 
peareth, that if the goods and chattels of the King's 
debtor be sufficient, and so can be made to appear to 
the sheriff, whereupon he may levy the King's debt, 
then ought not the sheriff to extend the lands and 
tenements of the debtor, or his heirs, or of any purcha- 
ser or terre tenant." lb. The mode of collecting 
the land tax in England was by distress. The statute 
4 T^. & M. ch. 1, which established the land tax as 
it was continued by annual acts down to the period of 
Vol. XVIII — 19 



1868. 

January 

Term. 

Martin 

v. 

Snowden, 

trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



[137 



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Bennett 

V. 

Hunter. 



146 COURT OF APPEALS OF VIRGINIA. 

1868. the formation of the Federal constitution, provided 
Term!^ that, for the collection of the tax, it should be lawful 
"tt-t: — ^*to distrain the person or persons so refusing or neg- 
V. lecting to pay by his or their goods or chattels, or 
Trastee"' to distrain upon the messuages, lands, tenements and 
premises so charged, and the goods and chattels then 
and there found, and the distress go taken to keep by 
the space of foui days, at the cost and charge of the 
Portner owner thereof/' Sect. 12. The section goes on to 
Recker provide, that if the money be not paid within four 
Caze- days, the distress so taken shall be sold for the pay- 
nove. ment of the money, and the surplus paid to the owner. 
Section twenty -nine of the same act provides, that in 
case any lands or houses be unoccupied, and no dis- 
tress can be found on the same, nor the person of the 
owner found in the county where the land lieth, by 
reason whereof the assessment on such unoccupied 
lands and houses cannot be levied, the name cf the 
delinquent, the sum assessed, and the place where the 
land lies, shall be certified to the Court of Exchequer, 
which certificate is declared to be a charge on the 
person of the debtor, and on the lands and houses 
named therein, and to make the person debtor to the 
Crown for the sum assessed, and that the Court of 
Exchequer shall issue out process thereupon against 
the body, goods and other the lands of the debtor, 
until the sum due be fully levied and paid. The same 
mode for collecting taxes by distress was provided for 
in the last of the annual acts imposing a land tax, 
138] passed 38 George 3, ch. 5. Many, if not all, of the 
intermediate acts between 4 W. & M. ch. 1, and 38 
George 3, ch. 5, are omitted, except their titles, in 
the edition of the British statutes in the State library. 
But I have seen no reason for believing that any of 
them provided for a substantially different mode of 



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COUKT OF APPEALS OF VIKGINIA. 



147 



collecting the tax. See 2 Bm. Eccl. Law, title Jjsuid 
Tax. 

Mp. Justice Curtis, in the case above cited, refers 
to various statutes of the Colonies, and of the States 
before the adoption of the constitution, for the collec- 
tion of public dues, and in all of them, as far as 
quoted by him, the process is given against the goods 
as well as the lands of the debtor, and generally with 
a provision that the lands shall not be taken unless 
the goods prove to be insuflScient. In not one of 
them is there any provision for a forfeiture of the 
land, OP for a proceeding in any form, against the 
land alone. 

A statute of Virginia, said to have been passed in 
1785, has been cited to us as an instance in which a 
State, before the adoption of the constitution, declared 
lands to be forfeited absolutely ior the non-payment 
of taxes. This is the only instance of the sort that 
has been cited to us. But this statute was really not 
passed in 1785, but in 1790, when this sort of forfei- 
ture was for the fisrt time introduced in Virginia. 2 
Revised Code of 1819, 517. Opinion of Judge Eoane 
in Kinney v. Beverley , 2 Hen. & Mun. 518. 

But suppose this statute had really been passed in 
1785. To make it avail anything to the plaintiffs in 
error, it would be necessary to show that forfeiture 
of the land for non-payment of the tax was one of the 
means then generally known and employed for the 
collection of taxes. An act of a single State, adopt- 
ing a new and exceptional mode of proceeding, could 
. have no weight in the argument. 

As I have already intimated, this class of forfei- 
tores has not been employed in Virginia as one of the 
usual means of enforcing the payment of taxes, but 
rather for the purpose of establishing titles and settling 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



[130 



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148 COURT OF APPEALS OF VIRGINIA. 

1868. vacant and abandoned lands. A reference to the 

Term7 ^^^ ^^ 1790, and Others which preceded it, will show 

'ZTT- — what were then the ordinary methods of enforcing the 

v. payment of taxes, and in what cases and for what 

S^wtee!*' reasons the system of forfeiture applied. The whole 

g^ series of these laws may be found in 2 Kevised Code 

V. of 1819, 508 et seq. 

^ '* The act of 1781 provided that the sheriff might dis- 
Portner ^yain the lands, or slaves, goods or chattels which 
Recker should be found upon the land, but that the lands 
Caze- should not be distrained "where other sufficient effects 
nove. Q^j^ ]^Q jjg^j thereon." Subsequent acts provided foi 
an immediate distress upon lands, goods and chattels, 
and that the smallest number of acres of land should 
be sold which the lowest bidder would pay the taxes 
on. An act passed in 1788, reciting that the usual 
mode of selling land ''produced great oppression,-' 
enacted that every such sale should be made on the 
premises, and that no sale should be made of any land 
for the payment of taxes, if other property suificient 
belonging to the person chargeable could be found in 
the annity. The same act provided for buying in for 
the State any lands sold for taxes that should not bring 
one-half its value, with a right to the owoier to re- 
deem within two years; and that if it should not be 
redeemed within two years it should be sold, and 
the proceeds of sale, after deducting the taxes, dam- 
ages and expenses, paid over to the original owner of 
the land. 

These references will show what were the ordinary 
methods of enforcing the payment of taxes in use in, 
Virginia about the time of the adoption of the consti- 
tution. And it may be worth mentioning, that be- 
fore the adoption of the constitution of the United 
J 40] States, the legislature of Virginia had re-enacted the 



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COURT OF APPEALS OF VIRGINIA. 



149 



provision of Magna Charta^ that ''no freeman shall 
be taken or imprisoned, or be deprived of his free- 
hold, or liberties, or free customs, or be outlawed or 
exiled, or any otherwise destroyed, nor shall the com- 
monwealth pass upon him nor condemn him, but by 
the lawful judgment of his peers, or by the law of the 
land." 12 Hen. St. at Large, 186. 

Looking at the spirit which animated all this legis- 
lation, we cannot doubt as to what would have been 
thought, at that day, of a statute declaring an imme- 
diate and absolute forfeiture of the whole land, as a 
penalty for non-payment of the tax within sixty days 
after the assessment of it, without notice to the owner, 
by advertisement, or otherwise, of the assessment, 
and without any, even the least, effort to collect it. 

Then came the act of December 20, 1790, above 
referred to, which introduced the principles of forfei- 
ture. The first section repealed all laws then in force 
providing for the sale of land for taxes due thereon. 
The second section directed the sheriff to return a list 
of the lands where he cannot find in his county sufficient 
effects of the owner to sat isfy the tax. The third section 
directs the auditor of the State, when it shall appear to 
him from the certificate of the county courts, or from 
other information, that a person chargeable with any 
such tax resides, or has slaves, or personal property, 
in some other county than that in which the land lies, 
to certify the amount of the tax to the sheriff of such 
other county, who is required to distrain therefor as 
for other taxes. Section 4 directs that a list of these 
insolvents, with the amount due from each, shall be 
furnished to the collector of taxes for the next year, 
who shall distrain for them, as for other taxes; and 
that in case such taxes cannot be collected in the suc- 
ceeding year, the treasurer of the State shall cause 



186S. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



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150 COUBT OF APPEALS OF VIKGINIA. 

1868. to be advertised the names of the delinquents, with 

TemT ^® quantity of land and its location, and the amount 

"TTT: of tax due thereon. And then the fifth section pre- 
Martin *^ 

V. vides that, in case the t^ax on any tract of land shall 

trustee. * °^^ ^ P^^^ ^^^ ^^® space of three years, the right to 

g^^ the same shall be *4ost, forfeited, and vested in the 

v. commonwealth," and be subject to entry and grant 

as waste and unappropriated land. 

Portner j^ appears from this recital of the provisions of the 

Recker act of 1790, that the forfeiture was not resorted to as 

Gaze- ^^^ of tbe known and accustomed means of collecting 

141^1^ a tax. It was resorted to as a new proceeding, when 

other means failed — when no effects could be found 

in the county, or in any other county, to satisfy the 

tax; and when, after advertisement, and a delay of 

three years, no person would pay it. It could hardly 

apply to any case in which the land had not been 

abandoned by the owner. 

There is nothing, therefore, in the usages and modes 
of proceeding which prevailed in England or in this 
country before, or at the time of, the adoption cf the 
constitution, which authorizes ae to say, according 
to the principles of Murray^s hsuee v. Hohoken Com- 
pa/tiy^ that a peremptory and absolute forfeiture of 
title at the end of sixty days, as contended fcr in 
these cases, is '^due process of law" for the collection 
of taxes due to the United States. 

It does not alter the case that this statute was en- 
acted during a period of civil war, and was designed 
to operate within a territory in which the civil au- 
thority of the United States was for the time sub- 
verted. Congress still claimed Virginia as a State of 
the Union. That claim was distinctlv asserted bv 
the act of August 5, 1861, laying and apportioning 
the direct tax, and quite as distinctly by the act of 



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OOUBT OF APPEALS OF VIRGINIA. 161 

June 7, 1362, providing for the collection of the tax 1868. 
in the insurrectionary districts. Tliis last act was Term7 
passed in order to enforce compliance by the people "TTIT^ — 
of those districts, with a duty devolved upon all the v. 
people, in pursuance of the constitution. It was not tnwtee?* 
competent for Congress, while professing to exercise ^^^ ^ 
a power given by the constitution, to trample under v. 
foot the restraints imposed upon it by that instru- 
ment. For example. Congress could not exercise the P^^^^^e^ 
power of taxation, and disregard the rule of appor- Recker 
tionment prescribed by the constitution, in respect to Caze- 
the States in rebellion. The power of taxation is not ^^r^Aa 
a war power, to be employed for the purpose of com- 
pelling the submission of men in arms against the gov- 
ernment. In short, while the state of war might fur- 
nish the motive for such legislation, it could not sup- 
ply the power to enact it. As was said by Mr. Justice 
Davis, delivering the opinion of ihe Supreme Court in 
Ee parte MUligan, 4 WaU. U. S. R. 2, 120: ^*The 
constitution of the United States is a law for rulers 
and people, equally in war and in peace, and covers, 
with the shield of its protection, all classes of men at 
all times, and under all circumstances. No doctrine 
involving more pernicious consequences was ever in- 
vented by the wit of man than that any of its provi- 
sions can be suspended during any of the great exi- 
gencies of government. Such a doctrine leads directly 
to anarchy or despotism ; but the theory of necessity 
on which it rests is false, for the government, within 
the constitution, has all the powers granted to it which 
are necessary to preserve its existence. ' ' 

This forfeiture cannot be sustained as a forfeiture 
for crime, like the forfeitures which take place under 
the revenue and navigation laws, or under the act of 
August 6, 1861. In such cases, the thing forfeited is 



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152 COURT OF APPEALS OF VIRGINIA. 

1868. the instrument by which the offence was committed, 

TermT ^^ was the fruit of the offence,* and is treated as being 

"T7"i: itseJf, in some sort, the offender. But the land of a 
Martm ' ' 

V. delinquent tax-payer cannot be brought within the 
trustee. ' principle of this class of cases; it is neither the instru- 
g^ ment nor the fruit of any offence. Nor can we sup- 

V. pose that Congress intended to make it a criminal, or 
even a qvasi criminal offence, for a man not to pay 
Portner jjjg taxes, especially without notice of the amount of 
Recker them. 

y 

Gaze- Nor can we suppose that Congress designed this for- 
14S1^ feiture as a meang of confiscating the property of per- 
sons in rebellion against the government. The acts 
of August 6, 1861, July 17, 1862, and March 13, 
1863, make provision for the confiscation of property 
in certain specified cases arising out of the rebellion, 
and embracing a large number of acts. We must sup- 
pose that these acts embrace all the cases in which 
Congress thought it proper to provide for this extra- 
ordinary and exceptional mode of punishment. We 
are not at liberty to say that Congress designed, by 
the act of June 7, 1862, to establish another system 
of confiscation covertly, under the disguise of a system 
for the collection of taxes, and especially one that 
wculd embrace those that were innocent of participa- 
tion in the rebellion as well as those who were guilty, 
and one that would forfeit the land in fee simple, 
when, by the avowed systeir of confiscation estab- 
lished by the act of July 17, 1862, it could only be 
forfeited for the life of the offender. 12 Stat, at 
Large, 627. 

Moroever, if we regard this forfeiture as designed 
for the punishment of persons in rebellion against the 
United States, the provision is liable to a still graver 
objection. In that view of the act, it declares, in 



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COUKT OF APPEALS OF VIBOINIA. 



153 



effect, that the non-payment of the tax within sixty 
days is sufficient evidence of participation in the re- 
bellion, and is a legislative conviction and punishment, 
without trial, of all who fail to pay. This is a viola- 
tion of that provision of the constitution which inhibits 
Congress from passing a bill of attainder. According 
to the decision of the Supreme Court in Cummings v. 
St^^ of Missouri, 4 Wall. U. S. R. 277, that provi- 
sion applies to every act of Congress which assumes 
guilt and inflicts punishment ^vithout judicial trial, 
whatever be the character or degree of the puaishment 
inflicted. It matters not that the person is not 
reached. The deprivation of property is equally a 
punishment. It matters not that it is not callea a 
punishment, but only purports to be a stringent 
measure for the collection of taxes. If it is, as I am 
Dow supposing, a legislative deprivation of property 
for participation in the lebellion. Congress could no 
more inflict it under the disguise of a system for the 
collection of taxes than it could inflict it for the avowed 
purpose of punishmnet. As was said by Mr. Justice 
Field, delivering the opinion of the .^iupreme Court in 
Cummings v. The State of Missouri: ''The purpose 
of the law-maker, in the case supposed, would te 
openly avowed; in the case existing |upon the view I 
am now consideting] it is only disguised. The legal 
result must be the same, for what cannot be done 
directly, cannot be done indirectly. The constitution 
deals Avith substance, not shadows. Its inhibitions are 
levelled at the thing, not the name. It intended that 
the rights of the citizen should be secure against de- 
privation by legislative enactment, under any form, 
however disguised. If the inhibition can be evaded 
by the form of the enactment, its insertion in the 
fundamental law was a vain and futile provision.'' 
Vol. XVI ri — 20 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 

Recker 

• V. 

Caze- 

nove. 

[144 



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154 OOUKT OF APPEALS OF VIRGINIA. 

1868. For these reasons, I am constrained to think that it 

Term7 ^^ ^^^ within the constitutional power of Congress 

'TT'T: — to declare that, upon non-payment of the tax within 

V. sixty days, the land charged with the tax should be 

trustee!*' absolutely forfeited to the United States. It follows, 

^ ^^ that if, on the true construction of the act of June 7, 
Bennett ' ' 

V. ] 862, it provides for such a forfeiture, the plaintiffs 

in error could acquire no title hy their purchases. The 

Portner forfeiture did not ^est the title to the lands in the 

Recker United States, and the commissioners could not pass 

Gaze- ^ title to them as* the property of the United States. 

nove. ^g I jjg^yQ already stated, however, I do not think 

145] that we are compelled to place that construction upon 

the act of Congress. The forfeiture seems to have 

been provided for as a means of enabling the United 

States to make a sale of the land. Whether it was 

appropriate for that purpose, oi upon what particulai 

theory, or with what particular view, the provision 

was made, is wholly unimportant, if I am right in 

holding that it was not designed, by its own mere force, 

to divest the title out of the owner and to vest it in 

the United States. 

It remains to enquire into the regularity of the pro- 
ceedings under which the plaintiffs in error claim title. 
The act of February 6, 1863, provides, that the cer- 
tificate of sale '* shall be received in all courts and 
places as prima facie evidence of the regularity and 
validity of the sale and of the title of the purchaser in 
purchasing under the same. ' ' And the last proviso of 
that act declares, that the certificate of the conunis- 
sioners shaU only be affected as evidence of the r^- 
larity and validity of the sale by establishing: 1. That 
the property was not subject to taxes; or, 2. That 
the taxes had been paid previous to sale; or, 3. That 



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COITKT OF APPEALS OF VIKOINIA. 



155 



the property had been redeemed according to the pro- 
visions of that act. 

The first objection taken to the sale is, that the 
whole land was sold; when it appears from the facts 
that the land might have been divided without preju- 
dice to it, and a part of it sold for enough to pay the 
sum due to the United States. It was contended by 
the counsel for the defendants in error, that the com- 
missioners had on authority, upon a proper constric- 
tion of the act, to sell the whole land when the money 
charged upon it might have been made by the sale of 
only a part of it. He contended fuither, that the cer- 
ticate of sale was not intended, in any case, to pre- 
clude enquiry into the authority of the commissioners 
to make a ^e, but that it \^as intended only to pre- 
clude enquiry (except on the grounds specified) in 
respect to the regularity of the proceedings of the com- 
missioners, in cases where they had authoiity to sell. 
On the other side it is contended, that the act contem- 
plates that the whole land charged with tax shall be 
sold, in every case, and that it does not allow any im- 
peachment of the certificate, on the score either of 
irregularity or want of authority, except on the 
grounds specified. I do not think it necessary to de- 
cide these questions. I will assume, for the present 
purpose, that the view taken by the counsel for the 
plaintiffs in error, on these points, is the correct one. 
The substance of it is, that the act requires that in all 
cases the whole land shall be sold, whatever its value, 
and whatever the amount of the tax, even though an 
inconsiderable part of it would suflBce to pay the tax, 
and that, after a sale has been made, there shall be 
no enquiry to ascertain whether the tax might not 
have been paid by the sale of part of the land. 

Now the authority of Congress to make a sale at all 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

v. 
Hunter. 

Portner 

Recker 

V. 

Caze- 
nove. 



[146 



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156 



COURT OF APPEALS OF VIBOINIA. 



1868. 

January 

Term. 

Martin 

V. 

Snowden, 
trustee. 

Bennett 

V. 

Hunter. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



147] 



results from the power to lay and collect taxes, and 
the power to pass all laws which shall be necessary 
and proper to carry that power into execution. How 
can it be said that a sale of the whole land, in every 
case whatever, is ** necessary and proper" as a means 
of collecting the tax due upon it ? According to the 
decision of the Supreme Court in McCuUoch v. Staie 
of Maryland^ 4 Wheat. U. S. E. 316, when any 
measure, in its nature, is appropriate as a means of 
carrying into execution a power expressly granted by 
the constitution, Congress is the sole judge of the 
necessity of adopting that means in the particular case; 
that is a question of legislative discretion, not of judi- 
cial cognizance. But in e\ery case it must appeal that 
the measure adopted, in its nature, is appropriate as 
a means of carrying the granted power into execution. 

How can it be said that a sale of the wnole land, in 
every case whatever, is appropriate as a means of col- 
lecting the tax upon it ? Can the sale of five hundred 
acres of land be appropriate as a means of collecting 
a tax, which might be collected by the sale of one 
acre ? Congress might just as well direct that the 
whole of the defendants' estate should be sold under 
every execution, without reference to the value of the 
estate or to the amount due on the execution. 

To avoid a misapprehension of my meaning it is 
proper to add, that I am not now questioning the 
power of Congress to declare that the certificate of 
sale shall, as between the owner and the purchaser, be 
conclusive as to the necessity or propriety of seUing 
the quantity of land actually sold in the particular 
case, where a discretion is given to the commissioners 
to sell the whole land, if part of it cannot be sold, 
without injury to the residue, or in any like case. I 



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COURT OF APPEALS OF VIBGINIA. 157 

am only questioning the power of Congress to declare 1868. 
that, in every case, the whole land shall be sold. Teim^ 

Another objection t6 the sale, insisted on by the r~ 

counsel for the defendants in error is, that before the v. 
sale of the land, though after the expiration of the trustee?* 
sixty days, the amount of the tax, penalty and costs ^^ 
was tendered to the commissioners, who refused to v. 
receive it; that this was equivalent, in legal effect, to 
the actual payment of the money; and that, as the Partner 
only authority to make a sale at all w^as to raise the Recker 
money due, the payment, or the tender and refusal of caze- 
the money, before the sale, put an end to the authority. °^^®- 
The answer made to this is, that by the provisions of 
the act, no payment of the money, after the expiration 
of the sixty days, could prevent a sale, except only a 
payment of it by the owner in person; and that Con- 
gress had a right to require payment from the owner 
in person because the land was, by the forfeiture, al- 
ready the property of the United States. 

The counsel for the defendants in error insists, that 
the act of February 6, 1863, does not require that pay- ri48 
ment, after the expiration of the sixty days and before 
the sale, shall, in order to prevent a sale, be made by 
the owner in peison, and that the provisions as to the 
owner appearing in person and paying the money has 
reference only to the authority of the commissioners 
to bid in the land for the United States. 

I do not concur in this view. I thiuK the plain 
meaning of the act is, that if the owner will appear 
in person and pay the money, the land shall not be 
sold. Why receive the money if the land is to be sold 
notwithstanding ? And what owner would pay the 
money if it would not save his land from sale ? Then , 
does not the provision that the owner, by appearing in 
person and paying the money may prevent the sale, 



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158 COURT OF APPEALS OF VIRGINIA. 

1868. imply that a sale cannot be prevented by the pay- 
Term?^ ment of the money by any other person ? I think it 
^ " does. Rcpr€%%io uniu%^ excluBSO alteriuSi 

V. But I think the objection to the sale is well founded, 

trustee. ' I^ *^® view of the act of Congress which I have en- 
g^ deavored to establish, it only authorizes, or could 

V. authorize, a sale to be made for the purpose of raising 
the money due. If the money is paid, no matter by 
Portner ^hom, before a sale is made, the reason for the mak- 
Recker ing a sale ceases, and the authority to make it ceases 
Gaze- ^iso. If the money, instead of being actually paid, 
°ove. jg tendered to the commissioners, and they refuse to 
receive it because not tendered by the owner in person, 
the legal effect is the same as if it had been paid. 
Their refusal to receive the money, which they ought 
to have leceived, cannot give them an authority to sell 
which they would not have had if they had done their 
duty by receiving it. There was, in these cases, an 
oflfer to pay the money by persons who appeared be- 
fore the commissioners for the purpose, and were pre- 
pared to do it, though tnere was no actual production 
149 J and tender of the money. But actual production and 
tender of the money were not necessary, when the 
commissioners declared to the parties who offered to 
pay that they would not receive it. Vide Bacon Abr. 
Tender, F. Congress might require payment by the 
owrer in person as a condition of redemption after 
sale. It might, in the act directing the sale, allow 
redemption on such terms as it might prescribe, or it 
might refuse to allow it at all. But the case is other- 
wise when the payment is offered befoie sale. 

The result is, that the plaintiffs in error acquiied no 
title by their purchases. 

The application in each of these cases to remove it 
into the Federal Court, in pursuance of the act of 



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OOUKT OP APPEALS OF VIKGINIA. 159 

March 3, 1863, was properly overruled, as the act does 1868. 
not embrace such cases. Tera?^ 

I think the judgment of the District Court in each '~^~' — 

of these cases should be affirmed. v. 

Snowden, 
trustee. 

MoNcuRE, P. concurred in the opinion of Joyiies^ J, ^^ 

V. 

T Hunter. 

Judgment affirmed. 

Portner 

& 
Recker 

V. 

Caze- 
nove. 



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160 COPBT OF APPEALS OF VIRGINIA. 



January Scott's exHpG v. Scott. 

Term. 

' January 27. 

E owns an estate for her life in property, both real and personal in- 
cluding slaves ; and S owns the remainder in fee therein ; and 
E and her trustee enter into a contract called by the partiea 
a lease, by which they convey to S the life estate of E in the 
whole of the property, and S, in consideration thereof, under- 
takes to pay E annually for her life seven hundred dollars as 
rent, and to pay all taxes and legal charges on the estate ; and 
the usual remedies for the recovery of these annual suras were 
reserved. S was put into possession of the property, and held 
ane treated it as his own. Held : 

1. Though the instrument was called a lease, and the sums 

reserved was called a rent, the contract was a surrender, 
and the life estate of E was merged in the estate of S. 

2. The instrument not being under seal, it was not as to the 

land, an express surrender ; but it was a contract for a 
surrender, which was carried out by the parties, by the 
delivery of possession and the payment of money under 
it ; and it, therefore, has all the legal effect of an express 
surrender by deed . As to the personal property, no deed 
was necessary. 

3. The slaves having been emancipated by the proclamation 

of the President of the United States, this does not en- 
title S to any abatement from the amount of the annual 
payments which he contracted to make. 

In June, 1865, Eliza D. Seott filed her bill in the 
County court of Stafford county, which was afterwards 
removed to the Circuit court of the county. In it she 
stated — That some time previous to the year 1849, 
Richard M. Scott, of Bush Hill, Stafford county, Vau, 



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COURT OF APPEALS OF VIRGINIA, 161 

by a will made by him, devised and bequeathed his St. 1868. 
Maiysville estate, in said county, being a large landed ^^^ 
property, twenty-five or more negroes, and a large ^^ 
amount of other personal property, in trust to William ex'ix 
H. Fitzhugh, and Edwin C. Fitzhugh, for the benefit g^j^'^^t 
of Richard M. Scott, Jr., during his life, and after his [1^1 
death, the profits of said property was to be paid to 
the plaintiff for her life; the whole of said estate to 
be subject by way of rent to the annual payment of 
$200 on the 1st of January of each year, to his heirs. 
That this will was admitted to record in the court of 
the county of Stafford, previous to the year 1849; and 
that previous to that year Eichard M. Scott, Jr., 1st, 
the first beneficiary under the will, died ; and by the 
will the profits of the estate were then t« be paid to the 
plaintiff. That William H. Fitzhugh alone qualified 
as trustee under the will. That in August, 1850, Fitz- 
hugh and the plaintiff executed a lease to Eichard M. 
Scott, Jr. 2d, oi the said property, for and during 
the life of the plaintiff; which lease was signed by 
them, and by the said E. M. Scott, Jr. 2, as lessee, 
and was under seal dated about August 30th, 1850, 
and recorded in the clerk's office of Stafford county : 
by the terms of which lease the lessors agreed that the 
lessee should have possession of said property and the 
profits thereof from the 1st of January, 1850, and 
should hold the same during the life of the plaintiff; 
and the lessee covenanted and agreed to pay to the 
lessois the sura of $900 per anmim^ as rent of the said 
premises and property, on the 1st of January, 1851, 
and each succeeding January, duiing the life of the 
plaintiff; and to pay all taxes and legal charges against 
the said estate ; subject to the deduction of $200 per 
annum^ the rent charge upon the estate. That the 
l^see thereupon took possession of the said property ; 
Vol. xvin — 21 



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162 OOUKT OF APPEALS OF VIBOnOA. 

1868. a.iid he and his representatives have held it ever since. 
^T^rm^ She charged that no rent had been paid since the 1st 

;— of January, 1861, and that the rent for the years 

t?»Tx^ 1861,-'62,-'63 and '64 were then due; that Wm. M. 
g^'^^ Fitzhugh was dead ; that the records of Stafford county 
152] court were destroyed; thatKichard M. Scott, Jr. 2d, 
was dead, and Virginia Scott was his executrix; and 
making her a party, the plaintiff asked for a decree 
against her for the amount then due, with interest, and 
for any sums that might thereafter become due on 
said lease; and for general relief. 

Virginia Scott answered the bill. She admitted the 
facts of the will and the lease as stated in the bill ; ex- 
cept that she said the will was not lost, but was re- 
corded in Fairfax county ; and that the lease, of which 
she exhibited what she said was a copy of the original 
in her possessicn, was not under seal. She admitted 
the rent due in 1861 and subsequently had not been 
paid; and alleges that in the years 1861 and 1862 the 
slaves, which constituted the most remunerative por- 
tion of the estate, left her, and on the 1st of January, 
1863, they became freeimder the proclamation of the 
President of the United States. She insists, therefore 
that there should be an apportionment of the rent. 

The lease is signed by Fitzhugh and Eicbard M. 
Scott, Jr. 2d, and after reciting the will of Richard 
M. Scott, Sr., as stated in the bill, proceeds: and 
whereas the said Richard M. Scott, (Jr. 2d,) who at 
the death of the said Elizabeth B. Scctt will be entitled 
in reversion, and the said Wm. H. Fitzhugh, trustee as 
aforesaid, have agreed that it will promote the interest 
of the said Richard M. Scott, and render secure and 
certain the interest of Elizabeth D. Scott, that the said 
Richard M. Scott should obtain possession of the es- 
tate, both real and personal : Now this agreement wit- 



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OOUBT OF APPEALS OF VIRGINIA. 163 

nesseth that the said Wm. H. Fitzhugh has conti acted 1868. 
with, and doth hereby lease the estate aforesaid, con- xerm?^ 
sisting of the landed estate, including two fisheries, g^ 
and the following slaves, (naming them,) in number ex'ix 
twenty-fi\e, and all other property of eveiy descrip- gcott. 
tion belonging to said estate, for and during the natu- [153 
ral life of the said Elizabeth D. Scott, to the said 
Richard M. Scott; the property to be delivered on the 
1st of January, 1851. And the said Eichard M. Scott 
does hereby contract to pay, &c. , as stated in the bill. 
The said Wm. H. Fitzhugh, trustee, to be entitled to 
the usual remedies for the recovery of the rent in case 
the tenant shaU at any time be in default. In testi- 
mony ^ hereof, the parties to these presents have here- 
unto subscribed their names on the day and year in 
these articles written. 

The only witness examined as to the value of the 
estate was a son of the plaiatiflF, who seems to have 
acted as her agent before the lease to Scott. He 
states there were seven hundred and fiif ty acres of land. 
That the use of the estate was worth from $2500 to 
$2700 p^ (jmnum. That he had been offered $500 for 
the farna and $1200 for the fisheries, provided he could 
get Fitzhugh removed from the trusteeship, for five 
years; and that the slasres were worth about $1000 
per (jmnum. 

The deposition of the plaintiff was taken, and was 
not excepted to. She says that she had been informed, 
but does not know of her own knowledge, that the 
defendant had sold some of the slaves; and she filed 
with her bill a copy of a letter from Scott to herself, 
written in 1852, in which he says : In reply to your 
interrogatory, as to whether Lizzie is well and living, 
and what I will take for her, T have only to say that 
none of my servants are for sale. 



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164 COURT OF APPEALS OF VIRGINIA. 

1868. The cause came on to be heard on the 15th day of 

T^rmT Jui^e? 1866, when the court held that the contract be- 

tween Fitzhugh and Richard M. Scott was an exe- 

ex'ix cuted contract; and that there should be no abate- 

S^tt. ment or apportionment of the annual amount payable 

154:] to the plaintiff by the terms of said contract; and 

made a decree in her favor for $3500, with interest 

from the dates when the annual sums became due until 

paid ; and her costs. This decree included the amount 

payable on the 1st January, 1866. * 

From this decree the executrix of Richard M. Scott, 
Jr. 2d, obtained an appeal to the District Court of Ap- 
peals at Fredericksburg; where it was affirmed; and 
form that decree there was an appeal to this court. 

Beach^ for the appellant. 

The only question in this case is, whether there 
should be an abatement of the rent. This is a demise 
of real and personal estate. Where such is the case, 
and there is an eviction of the personalty, then there 
shall be an abatement of the rent. This was so de- 
cided in Newton V. Wilson^ 3 Hen. & Mun. 470. This 
case is referred to in 1 Tuck. Com. Boob 2, ch. 3. 
Then 'vas there an eviction of the personalty? I in- 
sist that there was in this case a technical eviction; 
but if not a technical eviction, there was what is 
equivalent to it. 

In the case of a slave there may be an eviction in 
two modes : 1st. If he is recovered by a third person 
by a better title. 2d. If he recovers his freedom, the 
effect must be the same. The essence of the eviction 
consists in the loss of the light to the service of the 
slave. There can be no difference in its effect, 
whether the slave recovers his freedom by action of 



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COUKT OF APPEALS OF VIRGINIA. 



165 



Scott's 
ex*ix 

V. 

Scott. 



[155 



law, or being entitled to his fieedom he gets it without 1868. 
suit. When a state of facts occur, which by recog- Term7 
nized principles of law, gives him freedom, this is a ' 
technical eviction. 

But let us suppose that this is not a technical evic- 
tion. The foundation of the doctrine of apportion- 
ment is the failure of consideration. If A demises B 
ten acres of land, und B is evicted of five acres by 
better title, he is entitled to an abatement of rent, for 
the failure of the consideration in which the rent was 
contracted to be given. And in the case of slaves, 
HI henever the lessee loses the slave without wrong on 
his part, he is entitled to an abatement. The slave 
may die oi run away. In the first case, the hire 
ceases on his death ; if he runs away, the lessee still 
has the right to his services. In the case of real estate 
there is no apportionment, because the lessee has the 
consideration for which he vv^as to pay. But a court 
of equity will apportion the rent even when a court of 
law will not. Mason v. Mayers^ 2. Rob. R. 006; 1 
Tuck. Cora. Book 2, ch. 3. In this case it is declared 
in the lease, that it is an arrangement for the benefit 
of both. In equity, therefore, the loss ought to be 
divided. 

But the lease from Fitzhugh is not in la^v a lease 
for life. To create a term for more than five years, 
the lease must be by deed: and this is not a deed. At 
most, it could only avail as a lease for five years; and 
the holding over afterwards by the lessee and his rep- 
resentative, was a holding from year to year only — on 
the terras of the lease, to be sure, but only so far as 
these terras were applicable; and since the holding 
over was of only a part of the demised property, the 
rent should have been apportioned accordingly. 

But it will be said that this was a sale of the 



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166 COURT OF APPEALS OF VIEOINIA. 

1868. property. The document does not purport to be a 

Sm7 sale. It is a formal lease. And the parties would 

"T— ; have defeated the object of the lease if they had in- 

ex*ix tended a sale. They designed to secure to Mrs. Scott 

Scott, t^^* annual rent; and yet, if it was a sale, this object 

is defeated; her right of distress would have been 

gone; and Scott might have sold the property without 

lea^ang her any lien upon the land. To treat this as 

a sale is to go in the face of the document, and defeat 

the object the parties had in view. 

156] The proclamation of the President operated to the 

extent of the occupation of the United States; and as 

it occupied the whole, it operated upon and over the 

whole. 

La/ijorenee B, Taylor^ for the appellee. 

It is said by the counsel, that the contract under 
which these parties claim is a lease, and that the lessee 
having lost the slaves by Lincoln^s proclamation, she 
is entitled to an abatement of the rent. 

First. — If it is a lease, the lessee is not entitled to 
an abatement of the rent. I have not been able to 
find any case which goes beyond this point: That the 
lessee fails to enjoy the property by the act of the les- 
sor, or by better title in another, or by any act for 
wtiich the lessor is responsible. And if for defect of 
title, the defect must have existed at the time of the 
lease. The case of Newixm v. Wilson^ 3 Hen. & Mun. 
470, cited by the counsel on the other side, was the 
lease of a mill and the miller; and the lessor had pre- 
viously manumitted the miller. In the other case 
cited, of Mdson v. Moyers^ 2 Rob. E. 606, there was 
a lease for three years, with condition if the land was 
sold, the lessee should give possession. He was en- 



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CX>UBT OF APPEALS OF VIKGINIA. 167 

titled to sow his fall crop; and when about to sow it 1868. 
he was deterred by a threat of the purchasers, of ^^^ 
whom the lt3ssor was one. that they would claim it. g^ 
Having been distrained for his rent, he went into ex'ix 
equity fcr relief; and that court gave the relief on gcott 
the ground of this action of the lessor. If the slaves 
had been sick, or had ran away, the lessee would not 
have been entitled to any abatement; and even if they 
had died, this law is the same. The only case in 
which it has been held otherwise is a decision of Chan- 
cellcr Creed Taylor; but all the cases in the late slave 
States are opposed to him. Harrison v. Murrell^ 5 
Monr. R. 359. He refered also to 1 Tuck. Com. book 
2, cH. 3, pp. 30, 31, 32, Hoss v. Overton, 3 Call. [157 
268. Bot, in fact, there is no evidence that the slaves 
were lost by the President's pioclamation. The answer 
states they were lost by their running away in 1861 
and 1862. 

Second — This was an assignment or sale of the 
property, and not a lease. The distinction between 
an assignment and a lease is clearly stated by Arch- 
bold, Land & Ten. p. 2, 55 Law Libr. 32. When 
the whole interest passes, it is an assignment. Pal- 
mer V. FAwards, 1 Doug. K. 187, note; Pluck v. 
Diffges, 5 Bligh. N. S. 31. By a lease the lessor 
grants less than his own. Archbold Land & Ten. 59, 
55 Law Libr. Then what is this contract ? The de- 
vise was to the trustee to pay over the rents and profits 
to Eliza D. Scott for her life ; the reversion \^ as in 
Richard M. Scott, Jr. 2. The property consisted of 
several hundred acres of land, twenty -five slaves, tv^o 
fisheries, and a large amount of personal property. 
The fisheries were worth at least fi\e hundred dollars 
a year, and the land and negroes fifteen hundred dol- 
lars a year. Mrs. Scott, an old lady, wanted a cer- 



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168 COUKT OF APPEALS OF VIRGINIA. 

1868: tainty; and this contract was made for the benefit of 
^rm.^ both parties. Richard M. Scott went into possession 
— of the property under that contract, used and enjoyed 
ex'ix it during his life, and his widow has done so since his 
^^i death; and they paid the rents until 1860. The case 
of Miehie v. Lawrence^ h ex^or^ cfec., 5 Hand. 571, sus- 
tains this view of the contract. Judge Green said in 
that case, that if it was a sale, then Miehie could have 
sold. And there can be no question in this case but 
Richard M. Scott could have sold. 

JoYNEs, J. It has been contended foi the appellant, 
that the contract out of which this suit arose is to be 
regarded as a lease of the land, slaves and other per- 
sonal property therein mentioned, for an annual rent; 
and that as the right to the services of the slaves has 
158] been lost by their emancipation, the appellant is en- 
titled to an apportionment of the rent, upon the prin- 
ciples of the case of Newton v. Wilson^ 3 Hen. & 
Munf. 470. For the appellee it has been contended, 
that the appellant has no right to claim an apportion- 
ment, even if the contract is to be regarded as a lease 
and the annual payment as a rent. This position in- 
volves an objection to the ground on which the deci- 
sion in Newton v. Wilson^ was placed. It is said that 
that was a case of eviction by title paramount, and 
that the decision should have been placed on that 
ground, which, it is argued, has no application to the 
present case. For the appellant it is argued, on the 
other hand, that for the purposes of this case, the 
emancipation of the slaves had the effect of an evic- 
tion by title paramount. But it is further contended 
for the appellee, that the contract was really a sale, 
and the annual payments a purchase money, payable 
in annual instalments during the life of the appellee, 



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COUKT OF APPEALS OF VIRGINIA. 169 

the amount of the purchase money being thus made 1868. 
dependent upon the duration of the appellee's life. Term7 
Thus regarding the contract, the counsel for the ap- 
pellee insisted, that it is like an ordinary sale of slaves, ex'ix 
in which he insisted that the agreed price must be paid, g^^t. 
Dotwithstanding the loss of the slaves by their emanci- 
pation. 

In the view which I take of the case, it is not neces- 
sary to decide either of these questions, and I theie- 
fore express no opinion upon either of them. They 
are important questions, which ought not to be decided 
until they are directly presented. 

The facts of the case are, in substance, that, under 
the will of Richard M. Scott, Sr. , Richard M. Scott, 
Jr., the second, the testator of the appellant, was en- 
titled to the St. Marysville plantation, with the slaves, 
stock and other personal property upon it, subject to 
a life estate in Eliza D. Scott, the appellee, given to 
her by the same will, and held in trust for her by 
William H. Fitzhugh. This life estate intercepted [159 
the possession and enjoyment of the property by 
Richard M. Scott, Jr., the second. He was naturally 
desirous to extinguish it, so as to get the possession 
and control of his property. To accomplish that ob- 
ject, and at the same time to secure to Mrs. Scott the 
benefit of her life estate, he entered into a contract 
with Fitzhugh, the trustee, by which Fitzhugh relin- 
quished to him the possession and enjoyment of the 
whole property, real and personal; and he agreed, in 
consideration thereof, to pay to Fitzhugh as trustee a 
certain annual sum during the life of Mrs. Scott, and 
pay all taxes and legal charges on the said property. 
This was the substance of the arrangement, though not 
the form of it. In form it purported to be a lease by 
Fitzhugh to Scott during the life of Mrs. Scott, and 
Vol. xviii — 22 



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170 OODRT OF APPEALS OF VIRGINIA. 

1868. the annual payment was called a rent, for the recovery 
Term7 ^^ which the usual remedies were reserved in case the 

~r~~T7~ tenant should make default in payment. There was 

ex'ix no covenant by the trustee foi title or for quiet enjoy- 

.S(^tt. nie^t, nor was there any restriction upon Kichard M. 

Scott as to the use or disposition of the property. No 

reversion ij\as left in the trustee or in Mrs. Scott. 

The claim now set up is not founded upon any ex- 
press stipulation in the contract. We must look, 
therefore, to the character and objects of the contract, 
to ascertain whether any stipulation can reasonably be 
implied as incident to it, upon w hich the claim of the 
appellant can be sustained. 

The contract was, in effect, what is known in tech- 
nical language as a sui render. A surrender is defined 
to be a * 'yielding up of an estate for life or years to 
him that hath the immediate reversion or remainder, 
wherein the particular estate may merge or drown by 
mutual agreement between them." 2 Black. Com. 
326. A surrender differs from an assignment. An 
assignment of an estate tor life or for years is a trans- 

160] fer of the whole interest of the assignor to some one 
other than the immediate reversioner or remaindermen 
holding an estate which is larger than that of the as- 
signor. The estate assigned remains as an estate dis- 
tinct from that of the reversioner or remainderman, 
and vests in the assignee, who stands, for most pur- 
poses, in the shoes of the assignor. But wtien the 
transfer of the whole interest in an estate for life or 
for years is made, as in this case, to the person hold- 
irg the immediate reversion or remainder in fee, the 
estate transferred is extinguished by merger, and the 
transfer operates as a sui render. As there was no 
deed in this case, the contract not being under seal, 
it was not a case, as to the land, of express surrender. 



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OOTJRT OF APPEALS OF VIRGINIA. 171 

because, under our statute, a deed is necessary to con- 1868. 
vey a life estate in land by surrender as well as in Term^ 
other cases. But the contract was an agreement for 
a surrender, which was carried into effect by the ex'ix 
parties by the delivery of possesions and the payment ^co^t. 
of money under it, and it had, therefore, all the legal 
effect of an express surrender by deed. Taylor on 
Landlord and Tenant, §§ 507-509. As to the personal 
property, no deed was necessary. 

The effect of the arrangement, therefore, was to ex- 
tinguish the life estate of Mrs. Scott, which inter- 
cepted the enjoyment of the property by Eichard M. 
Scott, whereby he became invested with the pcsses- 
sion of the property, and with an absolute and unen- 
cumbered title to it as ownei. Less than this would 
not have effected the objects which Eichard M. Scott 
probably had in view. Looking at the relative situa- 
tions of the parties, their respective rights under the 
will of Eichard M. Scott, Sr. , and the language of 
the contract, it is obvious that Eichard M. Scott had 
two objects in view: 1. To get the possession of his 
property; and, 2. To get the unrestricted right to 
control and use it as he might see fit. For these pur- 
poses, it was necessary that the encumbrance of Mrs. 
Scott's title should be removed entirely out of the [161 
way. A lease would not have accomplished these ob- 
jects. It would have given him the possession of the 
property, but not the right to use and control it as 
owner. And it was doubtless understood by the 
parties that the effect of the arrangement was wholly 
to extinguish the title of Mrs. Scott, by substituting 
the annual payments under the contract for the rents 
and profits under the will, and to give to Eichard M. 
Scott unrestricted control of the property as owner. 
For it appears from the letter exhibited with the bill, 



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172 COURT OF APPEALS OF VIRGINIA. 

1868. that Mrs. Scott proposed to Kichard M. Scott to pur- 
Term.^ ^l^ase one of the slaves embraced in the contract, and 
^ , that he declined the proposition, saying that none of 
ex*ix his slaves were for sale. Mrs. Scott also says, in her 
Scott, deposition, that she has understood that Kichard M. 
Scott had sold some of the slaves before their emanci- 
pation, which, if not true, might and probably would 
have been disproved. 

The reservation to the trustee of the usual remedies 
for the recovery of the annual payments in rent does 
not affect the view which I take of the substance and 
effect of this contract. It is a settled principle of the 
common law, that where a lease is made of lands and 
chattels, reserving a sum in gross as rent, though the 
rent is greater by reason of the chattels, it is regarded 
as issuing out of the land alone. Spencer^ s cme, 5 
Kep. 16; Newman v. Anderton^ 2 New Rep. 224. 
And so far has this principle been carried, that it has 
been held, that if the lessee is evicted of the land, the 
rent is gone, and there can be no apportionment in 
respect of the goods. Emolt v. Coh^ Dyer R. 212, 
Marg. ; Fltchburg Cotton Manxifaciurinij Company v. 
Melvin^ 15 Mass. R. 268; Woodfal Land. & Ten. 
284. 

The remedies reserved, therefore, were, as they 
could only be, remedies in respect to tiie land. They 
162] were: 1. The right to distrain ; and, 2. The right to 
re-enter upon default of payment. But these would 
create no lien on the land, nor restrict the right of 
Richard M. Scott to make sale of it. Their utmost 
effect would be to render the purchaser of the land 
from Richard M. Scott liable as assignee, upon the 
covenants of the lease. Whether that would be so in 
this case, it is not material to enquire. But these 
remedies for enforcing payment of the rent would 



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COURT OF APPEALS OF VIRGINIA. 173 

have no sort of effect upon the slaves or other personal 1868. 
property. They might, like any other personal Tem!^ 
picperty belonging to Richard M. Scott, be distrained — 

for the rent, if found upon the land, but not other- ex'ix 
wise. sodu. 

Such being, in my view, the object and effect of 
this contract as understood by the parties, I do not 
think that there is any ground upon which the claim 
of the appellant can be sustained. There has been no 
failure of the consideration upon which Richard M. 
Scott contracted to make the annual payments. The 
consideration was the extinguishment of the claim of 
Mrs. Scott, which operated as an encumbrance on his 
property and an impediment to his enjoyment of it; 
and that has been fully accomplished. There is no 
ground to imply an agreement on the part of Mrs. 
Scott to relinquish any part of her claim in case of 
the loss of the slaves by emancipation or otherwise, 
without eviction by title paramount, if indeed she 
could be held bound to do so in case of such an evic- 
tion. Richard M. Scott did not consider himself as 
buying or hiring the slaves from Mrs. Scott, and what 
ever arguments would apply to the case of a sale or a 
hiring of slaves, as to which I express no opinion, they 
can have no just applicatiou to this case, as I under- 
stand it. The object of Richard M. Scott was not to 
acquire a title from Mrs. Scott. The transaction im- 
plies no reUance upcn her for reimbursement in case 
he should lose any part of the property, even if it can 
be said to imply any reliance upon her for the good- [1C3 
ness of the title under which she held her life estate. 
If his title was good, hers was good, and I think the 
fair inference is, that he took the risk of her title, 
which was really carved out of his own. Looking at 
the real character and object of the transaction, I 



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174 COURT OF APPEALS OF VIBOINIA. 

1868. think the present case is substantially the same as if 
^^I^ Mrs. Scott had held a mortgage on the slaves, exe- 
"■"" — cuted by Richard M. Scott, Sr., or had been entitled 
ex'ix to an annuity charged upon them by the will of said 
S(^*tt. Richard M. Scott, Sr., and Richard M. Scott, Jr., 
the second, had relieved the slaves from the encum- 
brance by giving other security for the payment of 
the debt or annuity. 

The case is not altered by the fact that this is a suit 
in equity. The claim of the appellee is founded upon 
the contract, and she came into equity only because 
there was no trustee who could enforce the contract 
at law. It is not a case, therefore, for the application 
of the maxim that he who asks equity must do equity. 
GiUiatt V. Lynch^ 2 Leigh 535. And, besides, this 
does not appear to be a case of hardship in which a 
court of equity would feel disposed to give relief by 
the application of that maxim. It seems, from the 
evidence, that theannual sum to be paid to Mrs. Scott 
was fixed at a low rate, and that the land and fisheries 
are worth the whole of it. 

I think the decree should be affirmed, the appellant 
having waived all objection on the ground that the 
decree embraces a sum not due when the suit was 
brought. 

MoNcuKE, P. I do not know that there is anything 
in the opinion of my brother Joynes in this case from 
which 1 would dissent, and had I seen that opinion 
before 1 wrote my own, I might have concurred in it, 
and thus saved myself the trouble of writing one. 
But I wrote my opinion during the last term while his 
was not written until a few days ago. There is nothing 
164] in his which is in conflict with anything in mine; and 
as I still entertain the same opinion, I will therefore 



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COUKT OF APPEALS OF VIHOINIA. 175 

proceed to deliver it as it is written. The counsel for 1868. 
the appellant maintained, that the contract ih the pro- xe?^ 
ceedings mentioned was a lease for life by a tenant for ~r7"r; — 
life to the remaindermen of land, slaves and other ex*ix 
property, and that the lessee was entitled to an ap- f^^a, 
portionment of the rent on account of the loss of the 
slaves during the term by the effect of the war. In 
ray opinion I endeavor to show, that even if he were 
right in maintaining that the contract was a lease, he 
would be wrong in his conclusion that there ought to be 
an apportionment of the rent; but I then proceed to 
say, that I think the contract was an assignment or sale, 
and not a lease, and I endeavor to show that, aforti- 
ori^ there ought to be no such apportionment. My 
brother Joynes views the contract neither as a lease 
nor as a sale; but as a surrender. I have no fault 
to find with that view. I consider the effect of a 
sale and surrender in regard to this case as precisely 
the same. Every surirenaer for value is in elTect 
a sale; or, perhaps, more properly speaking, is the 
consequence of a sale. A sale by a particular 
tenant to the remainderman amounts to a surrender, 
and operates a merger of the term, unless there be 
some gcod cause for the continued separation of the 
term and the remainder. Whether there be such 
cause in this case or not, I deem it immaterial to en- 
quire, as, in my view, it is wholly immaterial whether 
the contract be considered a sale or a surrender. 
With this preliminary explanation, which I thought 
to be due to myself, I proceed with my opinion : 

If in this case Mrs. Eliza D. Scott, the appellee, 
had been the fee-simple ov\ ner of the St. MarysvQle 
estate, with all the slaves and other personalty thereto 
attached, and had leased the whole for her life to 
Richard M. Scott, the testator of the appellant, at an 



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176 OOUKT OF APPEALS OF VIRGINIA. 

1868. annual rent of seven hundred dollars, covenanted to 
TeiroT ^ P^^^ '^y ^^^ lessee without condition or exception, 

1 \v ould still have been of opinion that the lessee was 
ex'ix entitled to no abatement of the rent on account of the 
^11 loss of the slaves from the effects of the war; and this 

1^5] upon the principle of the English decisions, which 
show, that ''on an express covenant to pay rent dur- 
ing the term, an action maybe maintained for the 
whole rent stipulated to be paid, and for the whole 
time, notwithstanding there may be a fire which bums 
down houses on the leased pr smises, and deprives the 
lessee of the enjoyment thereof for part of the 
term." 2 Rob. Pr. new ed. p. 52, citing Paradem 
V. Jane, Alley n 27; Monk v. Cooper, 2 Str. R. 763; 

2 Ld. Raytn. R. 1477; Belfonr v. Weston, 1 T. K. 
310; and it seems that *'the same rule has been acted 
on in a case wherein the agreement has not been by 
deed — Baker v. Holtpzaffell, 4 Taunt. R. 45 — and it 
matters not whether there is an agreement in writing 
for a term of years, or only a tenancy from year to 
year." Izon v. Gorton, Ac, 5 Bing. K. C. 501; 55 
E. C. L. R. 198; 2 Rob. Pr. supra. This rule has 
been found fault with by judges, as well m England 
as in this country, and we find that great Judge Lord 
Noithington saying: "The justice of the case is so 
clear that a man should not pay rent for what he can- 
not enjoy, and that occasioned by an accident which 
he did not undertake to stand too," and he was 
"much surprised it should be looked upon as so clear 
a thing that there should be no defence to such an ac- 
tion at law; and that such a case as this should not 
be considered as much an eviction as if it had been an 
eviction of title; for," said he, "the destruction of 
the house is the destruction of the thing." Brown 
V. Quilter, Amb. R. 621. But McDonald, C. B. 



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COUBT OF APPEALS OF VIRGINIA. 177 

questioned whether there is any real resemblance in 1868 
such a case to that of an eviction of the tenant by title Teim^ 
paramount to which Lord Northington had assimilated g^ — 
it. '^The tenant/' says this Chief Baron, *'can only ex'ix 
be evicted where the title of the landlord was origi- gcott. 
nally bad, where he never had in truth anything to [166 
demise, and the pretending to do so was a fraud upon 
the lessee. In the present case, there was a fuJl ca- 
pacity to demise the thing leased on any terms which 
the parties might agree upon. The possibility of de- 
struction by fire was in their contemplation in making 
the lease; and it would have been very easy to pro- 
vide against the payment of rent in such an event, or 
for apportioning the rent on a partial loss, if such had 
been the intention of the parties; on the contrary, the 
lessee has expressly stipulated to pay the lent during 
the term at all events, and it is very diflBcult to say 
that that was not the intention."' Hare v. Groves^ 
cj&c, 3 Anstr. K. 693, 4; 698; 2 Kob. Pr. supra, 
from which the above quotations are taken. The 
reason of the rule is thus clearly and strongly stated 
by the Chief Baron, and seems to commend itself to 
our understanding and approbation, and I can certainly 
see nothing unjust or objectionable in it. The rule 
has stood the test of time and innovation in England, 
and remains, I believe, to this day, the law of that 
country. However it may have been changed or 
modified by adjudication or legislation in some of our 
sister States, if such be the fact, it has been, and yet 
is, the settled and approved law of our State. In 
Ross v. Overton, 3 Call 309, the lessee of a m,ill hav- 
ing covenanted, in addition to the rents reserved, to 
make certain improvements and deliver the mill with 
such improvements at the end of his term in proper 
tenantable repair, and the mill during the lease having 
Vol. XVIII — 23 



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178 COURT OF APPEALS OF VIRGINIA. 

1868. been destroyed by the ice, three aibitrators, to whom 
Tem7 ^^® matter was referred, awarded that the lessee 
^ , should pay the rents, notwithstanding the destruction 
ex'ix of the mill, and should perform the other covenants 
Scott, contained in the lease; and the Court of Appeals ex- 
pressed an opinion that the arbitrators did not mis- 
take the law. In the half century which has elapsed 
167J since this award, (as is well said in 2 Kob. Fr. p. 54, 
no attempt has been made to change or explain the 
law. On the contrary, in the revision of 1849, the 
revisers proposed to the Legislature the adoption of 
the following as the fourteenth section of chapter 117 
of the Code : 

'*§ 14. No covenant or promise by a lessee to pay 
the rent, or that he will leave the premises in good 
repair, shall have the eflFect, if the buildings thereon 
are destroyed by lire or otherwise, without fault or 
negligence on his part, of binding him to make such 
payment or erect such buildings again, unless there be 
other words, showing it to be the intent of the parties 
that he should be so bound. But in case of such de- 
struction, there shall be a reasonable reduction of the 
rent for such time as may elapse until there be again 
upon the premises buildings of as much value to the 
tenant for his purposes as what may have been so de- 
stroyed." 

And the revisers strongly sustained this recommen- 
dation by a lengthy note appended to their report, 
page — , in which they referred to several American 
cases in which the wisdom of the rule had been ques- 
tioned. The section as thus proposed by them was 
not adopted by the Legislature, but was altered by 
the committee on revision, and as so altered was 
adopted and embodied in the Code as § 19, ch. 117,. 
in the following words: 



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COURT OF APPEALS OF VIBGINIA. 179 

*'No covenant or promise by a lessee, that he will ises. 
leave the premises in good repair, shall have the effect, ^^J^*^ 
if the -buildings are destroyed by fire or otherwise 
without fault or negligence on his part, of binding ex'ix 
him to erect such buildings again, unless there be gcott. 
other words showing it to be the intent of the parties 
that he should be so bound." 

The Legislature thus adopted the suggestion of the 
revisors as to the obligation of the lessee to re-erect 
buildings destroyed by fire or otherwise, without fault 
or negligence on his part, under a general covenant 
or promise to leave the premises in good repair, but [168 
rejected their recommendation in regard to his obli- 
gation to pay the full amount of the rent in case of 
such destruction under a general covenant or promise 
to pay the rent. This action and non -action of the 
Legislature seems to me to give to the rule in ques- 
tion, which had been so long established by the courts, 
almost the force and effect of statutory law. Whether 
the rule were a wise one in its origin or not, it seems 
to me that it would be unwise to alter it after it has 
so long received the sanction of our courts, and still 
more so to alter it after it has received the sanctioE of 
the Legislature. If it be altered at all, it ought to be 
altered not by the courts, but by the Legislature. 
The maxim stare decisis strongly applies, and gives to 
the rule the nature ot a law. It has received the 
commendation of some of our most distinguished ju- 
rists. Chancellor Kent, in speaking of it, says: 
'*But I apprehend that the law, as it is now settled 
on that point, rests on solid foundations of justice and 
policy. It is to be observed that the case only ap- 
plies to express agreements to pay; and if a party will 
voluntarily create a duty or charge upon himself, he 
ought to abide by it when the other party is not in 



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180 COXJKT OF APPEALS OF VIRGINIA. 

1868. fault, and when he might have provided, if he had 

Terai7 chosen, against his responsibility in case of such 

"T~~; — accidents. The loss of the rent must fall dther on 
Scott^s 

ex'ix the lessor or lessee; and there is no more equity that 
Scott, t/he landlord should bear it than the tenant, when the 
tenant has engaged expressly to pay the rent, and 
when the landlord must bear the loss of the property 
destroyed." 3 Kent 467, marg. Judge Tucker vin- 
dicates the rule in terms of like import. 2 Tuck. 
Com. book 2, ch. 3, p. 32. And Judge Allen, in his 
opinion in Th<ytnj)son v. Pendell^ 12 Leigh 591, in 
which Judge Stanard concuried, says in regard to it: 
''The hardship is more apparent than real, and the 
rule may be vindicated upon considerations both of 
^^^3 justice and good policy." The reason of the rule in 
its origin is, that a covenant to pay rent, generally, 
is intended to bind the covenantor to pay the whole 
rent, notwithstanding the demised subject or part of 
it may be destroyed by fiie or otherwise during the 
term; and that if the parties intend to make any ex- 
ception, they ought to do so expressly in the lease. 
Whatever may be said of the soundness of this reason 
for the rule in its origin, it certainly ilerives greatly 
augumented force from the fact that the rule has been 
long sanctioned by the courts, and still more from 
the fact that it has been approved by the Legislature. 
When parties make a lease in the present state of the 
law containing a general covenant for the payment of 
the rent,without condition or exception, they must be 
presumed to intend that the lessee shall be bound for 
the whole rent, notwithstanding the destruction of the 
demised subject, or part of it, by fire or otherwise 
during the term, without the fault of the lessor; and 
to give to the covenant a different effect would, it 
seems to mo, be to alter the contract of the parties. 



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COURT OF APPEALS OF VIRGINIA. 181 

The same rule prevails in equity as at law on this 1868. 
subject; for courts of equity have no more right than TeraT 
courts of law to change the contracts of parties. 18 ~T~~Z — 
Ves. 115; Zeedft v. Cheetham^ 1 Sim. R. 146, 2 Cond. ex*ix 
Eng. Ch. R. 74; Gates v. Green^ 4 Paige's R. 355. ^^^^ 
In Leeds v. Cheetham^ the Master of the Rolls, after 
stating the rule of law, proceeds to say: ''It appears 
to me that in this respect equity must follow the law. 
The plaintiff might have provided in the lease for a 
suspension of the rent in case of accident by fire; 
but not having done so, a court of equity cannot sup- 
ply that provision which he has omitted to make for 
himself; and it must be intended that the purpose of 
the parties was according to the legal effect of the 
contract." And in Gates v. Grten^ Chancellor Wal- 
worth, while he complained of the rule as being 
against natural law and equity, yet considered it well [170 
settled, and that ''a lessee of premises which are 
burned, has no relief against an express covenant to 
pay the rent, either at law or in equity, unless he has 
protected hire self by a stipulation in the lease, or the 
landlord has covenanted to re-build." The case of 
Mason^ ike, v. Mayers^ 2 Rob. 606, relied on by the 
counsel for the appellant, is not at all in conflict with 
what has been said or the cases before referred to. 
The tenant was relieved in equity in that case, because 
he had been prevented by the landlord's own act from 
fully enjoying the use of the demised premises, and 
was therefore clearly entitled to an abatement of the 
rent. The only question was, whether his remedy 
was at law or in equity, and it was held that, under 
the pecaliar circumstances of the case, he might be 
relieved in equity. 

But though personalty may be rented with land, yet 
the lent issues out of the land and not out of the per- 



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182 COURT OF APPEALS OF VIRGINIA. 

1868. sonalty, so that if the personalty be lost without the 
TermT ^^^^ of ^^^ landlord, or from a cause for which he is 
— — ;— not responsible, there seems to be no good reason why 
ex'ix the tenant should not be bound for the whole rent, 
g^i^^. even though the loss may have occurred without his 
fault. All of the lands out of which alone the rent 
issues still remains in the possession of the tenant, and 
his obligation to pay the tmtire rent would seem to 
continue also. The first case we have on this subject 
was one of this kind; of which we have the following 
account in 3 Kent's Com. 465, marg. : *^In Tavemors< 
cdse^ (1 Dyer, 5, 8, b,) which arose in 34 and 35 Hen. 
VIIT, a Iran made a lease of land, and of a flock of 
sheep, rendering a certain rent, and all the sheep 
died. The question was, whether the tenant could 
have relief from this calamity, at the expense of the 
landlord, by an apportionment of the rent. It was 
very much debated, and different opinions were entei- 
tained by the sergeants and judges who discussed the 
171] subject. Some of them thought there was good rea- 
son and equity to apportion the rent, or in other 
words, to make a proportioned deduction for the loss 
of the sheep. But others held to the contrary opinion, 
and that though the sea, or an inundation, should 
gain upon the land, or part of it be burnt by wild 
fire, the entire rent must issue out of the remainder, 
and that it would be different if part of the land should 
be recovered from the tenant by a title paramount to 
that derived from his landlord. The point was left 
unsettled by this early decision; but the opinion of 
those who were for the payment of the entire rent 
gained a decided superiority in the course of the sub- 
sequent century." And the learned commentator 
then proceeds to give us an account of the case of 
Paradine v. Jane^ Aleyn, 26, and other subsequent 



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CX)URT OF APPEALS OF VIRGINIA. 183 

cases, which result in establishing the rule that '*a 1868. 
tenant is not excused from the payment of rent, when xemT 
he is deprived, even by inevitable necessity or misfor- 
tune, and without any default on his part, or on the ex'ix 
part of his landlord, of the enjoyment of the prem- scott. 
ises." Id. 465-468, marg. 

Now it will be observed that in Tamernor^% case no 
distinction was taken by counsel or court, between 
the effect of a loss of real and personal estate, upon 
the obligation of the tenant to pay the entire rent, 
where both are included in one demise. And it was 
evidently conceded in that case, and has never been 
denied in any subsequent case, that the same rule ap- 
plies to both in this respect. Indeed, the rule would 
seem to apply a fm^tiori to personal estate, since the 
rent is supposed to issue out of the realty, though 
that may be a mere technicality. 

In the case of Newton v. Wilson^ 3 Hen. & Mun. 
470, so much relied on by the counsel for the appel- 
lant, is not at all in conflict with what has been said. 
That was a plain case foi relief on well settled prin- 
ciples, independently of the rule aforesaid. There 
the lease embraced land and a mill with a negro mil- 
ler. The miller had been emancipated by the lessor [172 
before the execution of the lease, and during the term 
left the service of the lessee. That the lessee should 
have been held liable to continue to pay for the ser- 
vice of the negro after it had been lost, as if by title 
paramount and by the fault, if not the fraud of the 
lessor, would have been contrary to one of the plainest 
principles of law. Every sale of personal property in 
the possession of the vendor, whether such sale be ab- 
solute or for a limited teim only, implies a warranty 
of title in the absence of anything in the contract of 
sale to the contrary; and when the vendee loses the 



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184 COURT OF APPEALS OF VIRGINIA. 

1868. property by reason of want of title in the vendor at 
Term7 ^^^ ^^™® ^^ ^^^ sale, he has a plain recourse over 
g^ , against the vendor on the implied warranty aforesaid, 
ex*ix and may defend himself to the extent of his loss 
Scott, against the claim of the vendor for the purchase 
money. It was properly held, theiefore, in ^^ewton 
V. Wihofiy that the tenant was entitled to an abate- 
ment of the rent on account of his loss of the services 
of the miller. But that is a very different case from 
one in which the loss of personalty included in a de- 
mise occurs without the fault of the lessor, and with- 
out any breach of contract on his 'part. He stands in 
regard to such property precisely as he would if it had 
been sold or hired for a term to the lessee, by itself 
and without being connected with the land, for a sum 
payable in instalments during the term, as rent is 
usually paid. The only difference between the two 
cases being, that in one the purchase money or hire is 
incorporated with the rent as part thereof, and in the 
other it is unconnected with any rent. But this 
difference cannot effect tie rights of the parties. 
;Now suppose that the appellee, instead of renting the 
whole subject to the lessee, had hiied the slaves to 
him for her life, for an annual sum payable during her 
life; would he have been discharged from his obliga- 
tion to pay these sums accordingly, in whole or in 
part, by the loss of the slaves, or any of them during 
173] the term without her fault? Could it make any 
difference that the purchase money thus payable is 
called hire instead of purchase money in the contract ? 
Is not this mere matter of form, instead of substance ? 
It has never been held that in such a case the vendee 
or lessee wculd te discharged as aforesaid, [t is true 
that in George v. EUiot^ 2 Hen. & Mun. 1, it was held 
by Chancellor Taylor, that if a slave who is hired for 



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COUKT OF APPEALS OF VIKOINIA. 185 

a year be sick or run away, the tenant must never- 1868. 

theless pay the hire; but if the slave die, without any Term7 

fault of the tenant, the owner and not the tenant ,, ^^, 
' Scott's 

should lose the hire from the death cf the slave, un- ex'ix 
less otherwise agreed upon. But there never has been gc^it. 
a decision to that effect by this court, and the latter 
branch of it seems to be opposed to the principles 
which has been acted on in analogous cases; and is 
contrary to a decision of the Court of Appeals of 
Kentucky, in which the opinion of Chancellor Taylor 
was referred to and disapproved, and it was held that 
the hirer of a slave for a year, which died before tne 
expiration of the year, was not entitled on that ac- 
count to relief, even in equity, from his express under- 
taking, fairlj' and lawfully made, to pay the amount 
of the hire. Harrison v. Murrell^ 5 Monr. K. 359. 
The decision of Chancellor Taylor seems ahvays to 
have been acquiesced in in this State, since it was pro- 
nounced in 1806, and whether right or wrong origi- 
nally, it ought not now to be disturbed; because con- 
tracts have been subsequently made in reference to it 
as a correct exposition of the law, and it has thus be- 
come, in effect, a part of such contracts. But its opera- 
tion ought to be confined to just such a case as was 
then before the court, and not to be further extended. 
It would therefore apply to the very common case of 
slaves hired by the year, but not to the extraordinary 
case of slaves sold or hired for a long term of years or 
a lifetime. 

In order that we may better understand the rule in 
question, it may be well for us to look a little more to [174 
the reason of it. It will be found to be not at all in 
conflict with the contract of the parties; but, on the 
contrary, it consists with and pursues their contract, 
express or implied. I find the reason of the rule no- 
VoL. XVIII — 24 



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186 OOUKT OF APPEALS OF VIRGINIA. 

1868. where better explained than by Baron Parke, in Hart 

TemT V. Windsor ^ 12 Mees. & Mels. 68, 85 : "Considering 

"T~r~ this case," savs he, "without reference to the modern 
Scott *8 ' * ' 

ex'ix authorities, which are said to be at variance, it is clear 
Scott, from the word ^demise,' in a lease under seal, the law 
implies a covenant; in a lease not under seal, aeon- 
tract for title to the estate merely — that is, for quiet 
enjoyment against the lessor and all that come in under 
him by title, and against others claiming by title para- 
mount during the term; and the word 4et,' or any 
equivalent words which constitute a lease, have no 
doubt the same eflfect, but not more. There is no 
authority for saying that these words imply a contract 
for any particular state of the property at the time of 
the demise, and there are many which clearly show 
that there is no implied contract that the property 
shall continve fit for the purpose for which it is de- 
mised, as the tenant can neither maintain an action, 
nor is he exonerated from the payment of rent, if the 
house demised is blown down or destroyed by fire, or 
gained upon by the sea, or the occupation rendered 
impracticable by the King's enemies, or where a wharf 
demised was swept away by the Thames. In all these 
cases the estate of the lessor continues, and that is all 
the lessor impliedly warrants." Now here we have a 
full and clear explanation of this whole subject — a 
touchstone to which all the cases may be brought to 
ascertain their correctness in principle. The lessor 
undertakes, either expressly or by implication, that he 
is entitled to the estate which he professes to demise, 
and will not disturb the lessee in the enjoyment of it 
during the term, consequently he undertakes that the 
175] lessee shall not be evicted either by himself or by any 
person claiming under him, or by title paramount; 
but he does not undertake that the lessee shall not lose 



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COURT OF APPEALS OF VIKGINIA. 187 

the property, or any part of it, by the act of God, or 1868. 
**the King's enemies," or any other cause not proceed- Term7 
ing in whole or in part from any act or default of the "^'.TT" 
lessor. In the language of Chancellor Kent, '4t is ex'ix 
well settled, that upon an express contract to pay rent, g^ott. 
the loss of the prenuses by fire, or inundation, or ex- 
ternal violence, will not exempt the party from his 
obligation to pay the rent." 3 Com. 466. If such 
exemption be contemplated oi intended by the parties, 
their intention should be expressed in the lease, and 
not being expressed, it will be impliei that such was 
not their intention. To hold the lessee to be exempt 
in such a case, would be to interpolate a term in the 
contract. 

Having thus ascertained the rule and the reason of 
it, I now proceed to the application of it to this case. 
I think it plainly applies to the case, and that the les- 
see (if lessee he can be called) is not exempt from the 
payment of. any part of the rent (if rent it can be 
called) by reason of the loss of the slaves included in 
the demise from the eflfects of the war. It is not pre- 
tended that the supposed lessor was not entitled tc the 
slaves for her life at the time of the demise, or had 
not a perfect right to convey them for her life to the 
lessee, oi that she or any person claiming under her 
has disturbed the lessee in his quiet and peaceful en- 
joyment of them, or that the cause of the loss, in 
whole or in part, proceeded from any act or default 
of hers. Why, then, does not the case stand precisely 
on the same grcund as if the slaves had all perished 
during the term by chtlera or other disease ? or nad 
runaway to Canada or some free State, and thus been 
lost ? In such a case certainly the lessee would not, 
on that account, be exempt from the payment of any 
part of the rent; and this I understand to be admitted 



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188 COURT OF APPEALS OF VIRGIKIA. 

1868. by the counsel for the appellant. But whether ad- 
TermT flitted or not, such I think is the settled law. The 
— parties knew that the slaves were perishable, and that 
ex'ix some or all of them might, at any time, die or run 
Scott, away, or otherwise cease to be slaves. That some of 
176J then would die during the life of the lessor was a very 
probable fact. That some of them might run away, 
and thus become free, was not at all improbable. 
Ttiey lived on the Potomac river, near the border of 
the free States, where tbe facilities of escape were 
very great and often made available for that purpose. 
It was possible, though not so probable, that the 
slaves might all be swept off by cholera or other epi- 
demic, or might cease to be slaves by the effects of the 
war or the action of the government. The property, 
in its nature, was subject to many and peculiar perils. 
But all these perils were known to the parties, and 
the risk of all was assumed and encountered by the 
lessee, in binding himself to pay an annual sum for 
the estate, without condition of exception. The coun- 
sel for the plaintiffs m error argues, that the loss in 
this case stands on the sanr e principle of a loss by title 
paramount. But in this I think he is clearly mis- 
taken. When the loss is by title paramount the lessor 
at the time of making the lease had not the title 
which he undertook to convey, and thus he violates 
his implied warranty, if he does not actually commit 
a fraud. But here the lessor, at the time of the lease, 
had a perfect title for life to the slaves, recognized 
and assured by both of the governments, State and 
Federal, under which she lived; and that they hare 
since ceased to be slaves is certainly not her fault. 
The loss in this case stanas on the same principle of a 
loss by the act of God or '*the King's enemies" — ^both 
of which stand on the same footing in this respect. 



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COURT OF APPEALS OF VIRGINIA. 189 

In the leading case on this subject, Paradine v. Jane^ 1868. 
an action of debt was bi ought for rent upon a lease Term7 
for years, and the defendant pleaded, by way of ex- 
ciise for the non-payment of the rent, that he had been ex'ix 
driven frora the premises by public enemies, viz., by g^^tt. 
Prince Rupert and his soldiers. But EoUe, J. over- [177 
ruled the plea, and held that neither the hostile army 
nor an inundation wculd exempt the tenant from pay- 
ing rent. The principle extends to every case in 
which the cause of the loss is an act of force or 
power— ri« major — which cannot be controlled or re- 
sisted; and such is the case here, whether the loss pro- 
ceeded from the effect of war or the action of Govern- 
ment. 

1 have thus far been considering the case as if it 
were a lease for life by a person entitled to the fee- 
simple estate. But let us now view it as it really is, 
a contract betwe<^n a person entitled to a life estate 
and the remainderman for the purpose of transf'^rring 
and surrendering the life estate to the remainderman 
in consideration of an annual sum to be paid by the 
latter to the former. The counsel for the defendant 
in error contended, that the contract in this case is an 
(migmnent^ and not a leane^ and therefore the testator 
of the plaintiff in errcr was net in fact a lessee^ but a 
purchaser^ of the life estate, not for a gross sum to be 
sure, but for the purchase money to be paid in the 
form of an annuity for life. And in support of this 
view, he referred to Arch hold's law of Landlord and 
Tenant, p. 69, 53 Law Library 85, in which it is said 
that an assignment ** differs from a lease in this, that 
by a lease a lessor grants an interest less than his own, 
reserving to himself a reversion ; but by an assignment, 
he parts with the whole property. If a man convey 
the whole of his interest by deed, it is an assignment, 



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100 COURT OF APPEALS OF VIKGINIA. 

1868. not a lease, although by the deed he reserves rent to 
TermT himself, and the deed contain covenants which are not 

'T~'Jy ill the original lease or conveyance to hira." This 
ex'ix view seems to be correct, and if so, it seems to be con- 
Scott. elusive of the case ; for surely a purchaser of property, 

178] which is afterwards lost without the fault of the ven- 
dor, has no recourse against the latter, unless there be 
some stipulation in the contract of sale which give 
such recourse. In answer to this view, the counsel 
fox the plaintiff in error referred to the case of Mlchie 
V. Lawrence^ 5 Eand. 571, in which it was held that 
no set form of words is necessary to constitute a lease; 
and a contract between two persons that one should 
have, during the life of the other, land, negroes, &c., 
he paying therefor a stipulated annual sum, is not a 
sale, but a lease. That oase came precisely within the 
description of a lease as laid down by Archbold, in giv- 
ing the distinction between an assignment and a lease, 
as already stated. Wood, the lessor in that case, was 
owner of the fee, and granted an interest less than her 
own, to wit, an estate for her life to the lessee Michie, 
reserving to herself the reversion. The annual sum 
to be paid was not in terms called *'rent" in the con- 
tract, but that made no difference; the court said the 
contract was in substance a lease, and such was clearly 
the intention of the parties. Here the appellee liad 
only a life estate in the property, and that she con- 
veyed to the remainderman, reserving no reversion to 
herself. And though the purchase money is payable 
in annual sums for her Ufe, which is called rent, yet 
that makes no difference. As in the case of Michie v. 
Lawrence^ we must look at the svhstance^ and not the 
form^ of the thing, and the contract is in substance an 
assignment, and such was clearly the intention of the 
parties. That such was their intention, I think con- 



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COURT OF APPEAL8 OF VIRGINIA. 191 

clusively appears from the relation of the parties, the 1868. 
objects they had in view, and all the circumstances TermT 
of the case. Many years ago Richard M. Scott, the "T"T; — 

oCOvv S 

elder, late of Bush Hill, iD the county of Fairfax, de- ex'ix 
vised and bequeathed bis estate of St. Maiysville, with ^^tt 
slaves and other personalty thereto attached, in the 
county of Stafford, subject however to an annual r^nt 
of two hundred dollars reserved to the testator and his [179 
heirs, to trustees for the use of Richard M. Scott, son 
of the appellee, dm ing his life, and then for the use of 
the appellee during her life, with remainder in fee to 
Richard M. Scott, son of the said testator Richard M. 
Scott, and testator of the appellant. William H. Fitz- 
hugh, one of the trustees, alone accepted the trust, and 
received and held the estate, and applied the rents 
and profits, after paying the rent of two hundred dol- 
lars reserved thereon as aforesaid, to the use of the 
first beneficiary, Richard M. Scott, during his life, 
and then to the use of the second beneficiary, the ap- 
pellee until the 30th day of August, 1850, when the 
contract of that date was entered into between the 
said trustee and the remainderman, the testator of the 
appellant, whereby the former conveyed or, as it is 
said, leased to the latter all the property aforesaid 
from and after the 1st day of January, 1851, for and 
during the life of the ap))ellee, for an annual sum, or 
rent as it is called, of nine hundred dollars, out of 
which was to be paid to the party entitled thereto the 
said reserved annual rem of two hundred dollars; 
leaving the annual sum of seven hundred dollars to be 
paid and applied to the use of the appellee during her 
life. And by the said contract it as further stipu- 
lated, that the grantee or tenant was to pay all taxes 
and legal charges against the said estate, and that the 
trustee should be entitled to the usual remedies for the 



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192 OOCRT OF APPEALS OF VIKOIXIA. 

1868. recovery of the rent, in case the tenant should at any 
T^rmT ^™® ^ i^ default. 

"7~7r~ Now it is obnous, from the relation of the parties and 
exMx their respective interests in the property, and the na- 
S^tt. ^^^^^^ ^^ *^^ property itself, that it was the intention of 
the parties by this arrangement to merge the particular 
estate in the remainder, to invest the remainderman 
with the entire fee-simple estate, and place him in the 
inmiediate possession and control of the property, to 
do with the same as he might think proper; and at 

1^0] the same time to secure to the appellee a certain an- 
nuity for life instead of a claim to uncertain rents and 
profits. That such was the intention, is plainly indi- 
cated by the contract itself, which recites, that 
''whereas the said Richard M. Scott, who at the death 
of the said Elizabeth D. Scott will be entitled in rever- 
sion, and the said William H. Fitzhugh, trustee as 
aforesaid, have agreed that it will promote the interest 
of the said Eichard M. Scott, and render secure and 
certain the interest of Elizabeth D. Scott, that the 
said Richard M. Scott should obtain possession of the 
estate both real and personal." And the same inten- 
tion is just as plainly mdicated by the decree of the 
Circuit Court of Stafford made in June, 1852, in a suit 
in which ihe said E. D. Scott was plaintiff and the 
said W. H. Fitzhugh and others w^ere defendants, to 
which it seems the said R. M. Scott, testator of the 
appellant, was a party ; by which decree the said con- 
tract or lease was, by consent of said plaintiff and said 
Fitzhugh, confirmed; and after reciting that the 
** whole trust subject being in the possession of the 
person who is entitled thereto in remainder after the 
death of the plaintiff under the said will, and is also 
entitled to it during the life of the plaintiff imder the 
said lease, subject to the rents and covenants therein 



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COURT OF APPEALS OF VIBGINIA. 193 

reserved and contained, and who, without the inter- 1868. 
vention of a tiustee, can pay and apportion the lents xem?^ 
to and among the parties entitled thereto, the said 
person being himself entitled (as is believed,) to the ex'ix 
annual sum of 1^200 charged upon the said subject in g^ott. 
the will of the said testator, and the plaintiff, who is 
entitled to the residue of the rent reserved in said 
lease, being willing to look to the tenant therefor and 
not to the said Fitzhugh; the court, by like consent, 
accepted the resignation of said Fitzhugh as trustee 
and discharged him from the further evecution of the 
trust, and declared the plaintiff to be thenceforth en- 
titled to receive the rent reserved by the said lease, and [1 81 
which might thereafter accrue, a^ter deducting the said 
annual sum of $200, and that she might, at her own 
costs and charges, sue for the same, if necessary, in 
the name of the said Fitzhugh. It is true that the 
contract or lease declares ''the said W. H. Fitzhiigh, 
trustee, to be entitled to the usual remedies for the re- 
covery of the rent in case the tenant shall at any time 
be in default,*' and thus seems to reserve the remedy 
by distress for the so-called rent, and to make it in 
effect a rent charge. But whether this be so or not 
cannot affect the question as to the right of apportion- 
ment of the rent. Thts only object of the charge, if 
it be one, was to benefit the vendor and secure the 
payment of the money, not to injure him. There can 
be no doubt but that the parties, in graduating and 
fixing the amount of the rent or annuity to be received 
by the appellee, made all due allowances for all the 
risks to which the property, from its nature and situ- 
ation, was exposed, and agreed upon an annual sum 
which at all events was intended to be paid to the ap- 
pellee. Such would appear to be the fact from the 
apparent disparity between the yearly Talue of the 

Vol. XVIII — 25 



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194 OOUKT OF APPEALS OF VIKOINIA. 

1868. property as proved by the only evidence in the record, 
T^imT ^°^ ^^® amount of the said annual sum. It was 
g^ doubtless not contemplated by either party that 
ex*ix property in slaves was in any immediate danger of the 
f^tt^ complete annihilation which afterwards happened to 
it; but still, that was one of the risks which the ven- 
dee encountered. Xor can there be any doubt but 
that it was intended by the arrangement aforesaid to 
give to the vendee or lessee aforesaid, Tvhicheverhe 
aay be called, the right to dispose of the property at 
his pleasure, and thus to sell it if he chose, from and 
after the date of the contract, or rather the 1st day 
of January thereafter, when it was to go into effect 
182] The land, of course, would remain subject to the 
charge for the security of the rent, if any such charge 
was created thereon. But certainly the slaves were 
subject to no such charge, unless they happened to be 
on the land, and therefore liable to be distrained for 
the rent thereafter in arrear, like any other property 
of the vendee or lessee or his assigns thereon. It does 
not appear what has been done with the land, slaves, 
or other property since the execution of the contract. 
On this subject the record is very meagre of facts. The 
land may have been long since sold, and some cf the 
slaves also. The only evidence on the subject which 
the record affords is the deposition of the appellee 
taken in October, 1865, in which she states that she 
had been informed by others that the appellant had 
sold some of the slaves, but she could not state anything 
in regard thereto from her personal knowledge. She 
was a non-resid,ent of the State, and therefore, prob- 
ably, had no personal knowledge. It msay be said that 
this is hearsay evidence, and therefore not- admissible; 
though it was not excepted to, and probably wqidd 
have been disproved if the fact had been otherwise anJ 



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COURT OF APPEALS OF VIRGINIA. 195 

had been deemed material. I think the substance of 1868. 
the contract was, a sale for an annuity for life instead xerm?^ 
of a gross sum; and that if it was intended by the ^ ,g 
parties to make the annuity a rent charge on the ex'ix 
property, the only effect of it was to give the annul- g^tt. 
tant an additional security, and not to subject him to 
risks which would otherwise devolve on the vendee. 

In regard to the objection taken to the lease as not 
being under seal, the original lease has been lost, to- 
gether with all the papers in the suit in Stafford. But 
it is recited in the decree in that suit as having been 
by deed : and if the testator of the appellant was a 
party to that suit, as we must take him to have been, 
he is bound by the proceedings in that suit. But 
even if it were not under seal, it is a binding contract [183 
in a court of equity where the parties now are. 

The last assignment of errors was withdrawn in the 
aigument, and need not be further noticed. 

I am of opinion to aftirm the decree. 

Rives, J. concurred in the opinion /)f Joynes^ J, 
Decree affirmed. 



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196 COURT OF APPEALS OF VIRGINIA. 



1868. _ ^ 

January Broughton v. Coffer. 

Term. 

184] 

February 5. 

1. In a suit by the vendee for the 8i)ecific execution of a contract 

for the purchase of land, the defendant denies the contract aa 
stated in the bill. The fact that the answer is disproved as 
to some facts which are denied, does not destroy the weight 
ascribed to it by law, in respect to other facts, as to which it 
is not disproved by the required amount of evidence. 

2. On a parol contract for the sale of land, the vendor executes a 

deed by which he conveys a part of the land purchased to 
the vendee. It is not competent for the vendee to prove by 
• parol evidence that the deed was in only part execution of 
the contract, and that the vendor had agreed at the time the 
deed was executed that he would convey the remainder at 
another day. 

3. Such an agreement could only be relied on as an independent 

contract; and must either have been in writing, or there 
must have been part performance. 

This was a suit in equity in the Circuit Court of 
Fairfax for the specific execution of a contract, by 
Wait Broughton against Francis Coffer. The plain- 
tiff in his bill charged — That in the month of May, 
1 848, he visited the county of Fairfax from New York, 
for the purpose of purchasing land, when he met 
Francis Coffer, who informed him he had land for 
sale. That he had about four hundred and fifty acres, 
foi which he would take $1,500. That Coffer took 
him over the land and around the boundaries, and 
ri85 sliowed him the corners. That the plaintiff went a 



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OOIJRT OF APPEALS OF VIRGINIA. 197 

second time with a friend, and Coffer pointed out the 1868. 
best portions of the land as an inducement to the plain- ^^^ 
tiff to buy it. That the plaintiff then concluded to "^ ~ 
purchase it, at the price, and agreed to meet the next ton 
day at the office of T. K. Love, to make the payment, coffer. 
it being cash, the possession to be given on the 1st 
of June. That when they met at the office of Love, 
and whilst the deed was being written, Coffer ob- 
served to the plaintiff that there was a part of the 
land, sevent}' or eighty acres, a lot, he did not wish 
to embrace in the deed at that time; that there was 
some question of title or something to arrange first; 
that he would make the deed for the balance; and 
that he would make the deed for the other thereafter; 
the purchase money could all be paid, and the plaintiff 
could take possession; which was agreed on. That 
the plaintiff paid the whole purchase money, and took 
the deed as suggested. lie was put in possession of 
the whole land by Coffer, and he held and occupied 
it, not presuming any difficulty, and that Coffer was 
honest and meant honest, until some two years ago, 
when plaintiff heard that he claimed he had not sold 
a piece of the land, and sued the plaintiff for a tres- 
pass; which suit was tried, and a verdict found on the 
evidence, for the defendant, the present plaintiff; after 
which Coffer proposed to the plaintiff to take half of 
the lot claimed. That Coffer had frequently said that 
he had sold all his land that he then held, and was 
going off; and that he did move out of the county. 
That notwithstanding these facts, he still fails and re- 
fuses to make the plaintiff the deed for the balance of 
the land; and that the plaintiff is now inclined to the 
opinion that Coffer designed to impose upon him, he 
being a stranger, and confiding in what he said. 
The bill made Coffer a party defendant, and called 



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198 CX>UKT OF APPEALS OF VIRGINIA. 

1868. upon him to answer; and prayed that he might be 
^rm7 compelled to make the plaintiff a deed for the balance 

"T — of the land; and for general relief. 

ton Coffer answered the bill. He says it is true the 

Coffer, plaintiff called upon him in 1848 to purchase land, and 

1^6] he showed him the land which defendant sold and 
conveyed to him ; but it is not true he told plaintiff 
that the said tract contained about four hundred and 
fifty acres, or that the defendant had about four hun- 
dred and fifty acres which he was willing to sell. On 
the contrary, he told the plaintiff that the land he 
was willing to sell contained to the best of his belief 
between three hundred and fifty and four hundred 
acres. And every allegation m the bill in opposition 
to this statement he denies to be true. That defen- 
dant sold to the plaintiff the land which he afterwards 
conveyed to him by the deed which he files with his 
auswer, for the sum of $1,500, and afterwards put 
him in possession thereof. And he denies that he sold 
the plaintiff any land not embraced in the deed, or put 
him in possession of any other land, or that the sum 
of $1,500 was paid or agreed to be paid for more land 
than was embraced in the deed. lie denies that in the 
oflBce of Love, or at any other time or place, he made 
the statement set out in the bill in relation to the 
seventy or eighty acres or that any such agreement 
was entered into between himself and the plaintiff. 
He says he owned two distinct tracts of land in Fair- 
fax county derived from his father, Francis Coffer, de- 
ceased; one, the tract he conveyed to the plaintiff, 
supposed to contain three hundred and seveuty-eight 
acres, devised to him by his father, and the other con- 
veyed to him by deed in July, 1813, described as con- 
taining seventy -six acres. lie says it is true he sho%ved 
the plaintiff a part of this last tract, and plaintiff wanted 



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COURT OF APPEALS OF VIRGINIA. 199 

to buy it; but he refused to sell it, and did not sell it 1868. 
to plaintiff, or put him in possession of it. That at Term7 

the time of the sale to the plaintiflF, this last tract had ^ — 

not been transferred to him on the land revenue books ton 
of the county, and in consequence thereof ha had never coffer. 
paid taxes thereon; nor was said land assessed with L^^'^ 
taxes until some time after the sale to the plaintiff. 
He denies that after the decision of the action of tres- 
pass alluded to in the complainant's bill, or at any 
other time, he proposed to the plaintiff to take half of 
said land. He has never admitted the complainant's 
claim to any portion of said land, or agreed to let him 
have any part of it. And in regard to said pretended 
agreement, he pleads the statute of frauds, and says, 
that if made, it was not in writing, and was therefore 
void. 

The deed from Coflfer to Broughton, in consideration 
of $1,500, conveys to the latter a tract of land devised 
to Coflfer by his father, and the metes and bounds are 
set out in it. And it does not include the other land 
conveyed to him in 1813 by his father. 

It appeared from the certificate of the clerk of the 
Circuit Court of Fairfax, that in January, 1852, Coffer 
brought an action of trespass quare clausum f regit 
against Broughton, which was decided at the October 
term, 1853, by a verdict of the jury in favor of the 
defendant. But it does not appear from the certifi- 
cate where the trespass was laid, or what was the 
ground of defence. 

The deposition of Lyman Broughton, a son of the 
plaintiff, was twice taken by the plaintiff. He was 
with his father when he went over the land to examine 
it, and he proves that Coffer showed them the land in 
controversy as a part of the land he offered to sell, and 
pointed out the comers of the whole tract, and the 



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200 COURT OF APPEALS OF VIRGINIA. 

1868. witness specifies corners, some of which he says were 
TemT ^poii this tract. He also says, that Broughton was 

"Z ~ put in possession of the land in controversy, and ex- 
ton ercised acts of ownership over it by cutting timber and 
CJoffer. ia.ils. He says he was present at Love's office at the 
time the money was paid by Broughton to Coffer, and 

188] that Coffer said he could not make a deed for the land 
in controversy that day; it was in dispute. That 
Broughton told Coffer he would pay him for the land 
on that day, and take a deed for the land at some 
other day. In his second deposition he says : ''Fran- 
cis Coffer told Wait Broughton that he could not give 
him a deed for that lot of land, (the lot in contro- 
versy,) that it was in dispute ; said Broughton told said 
Coffer that he would pay him for the whole that day, 
and he (Coffer) could make him a deed for the lot re- 
ferred CO at some other time ; he could make him a 
deed for the old place on that day. The purchase 
money was then paid, $1,500.-' 

Two other witnesses proved that Coffer had stated 
to them that he had sold the whole of his lands to 
Broughton. One of these witnesses was present when 
the verbal contract was concluded, and says : '*Theie 
was a conversation between them about the lines, oi 
whether there should be a survey. Mr. Coffer said 
there was no need of a survey; he had gone round 
and showed them the lines. Broughton said, Mr. 
Cofler, you sell me all your possession; and Mr. Coffer 
replied yes, all I pay tax for. Mr. Broughton replied, 
he could not ask any more of any man than all his 
possession, or what he paid tax for." This witness 
and another considered $1,500 a fair price for the 
whole of the land. 

J. G. Gunnell, a witness for the defendant, stated 
that he was present when the deed from Coffer to 



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COURT OF APPEALS OF VIRGINIA. 201 

Bioughton was made, and heard some conversation 1868. 
between the parties, whilst Mr. Love was drawing the Term7 
deed. Bioughton wanted more land put in the deed; "Z ~ 
Coffer said he would not sell any more land than he ton 
paid tax for. I understood it, that there was some coffer. 
land which Broughton wanted Cofifer to put in the 
deed referred to, which Coffer lefused to do; what 
land it was, I cannot say. 

John H. Coffer, another witness, stated that he was 
present at Mr. Love's office when the deed was made, 
and it was understood between his uncle and Brough- [189 
ton that the latter was to have what land Coffer then 
taxes for. 



In February, 1854, the cause came on to be heard, 
when the court dismissed the bill, with costs. And 
thereupon Broughton applied to this court for an ap- 
peal, which was allowed. 

Beach J for the appellant. 

Dulaneyy for the appellee. 

Rives, J. The Judge below conceded that *'if 
there were no deed in this case, the evidence would 
be sufficient to show such part performance of a parol 
contract as to entitle the plaintiff to specific perform- 
ance." To the propriety of this concession, my 
brothers here object, and hold that under the plead- 
ings and proofs in this case there has not been such 
part performance as to take it out of the Statute of 
Frauds. 

In this opinion, I cannot concur; and although it 
be a question of evidence, I deem it proper to express 
briefly the reasons of my dissent. There is no question 

Vol. xviit — 26 



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202 COURT OF APPEALS OF VIRGINIA. 

1868. as to the payment of the purchase money; the diffi- 
Term.^ culty exists as to the proof of possession. The bill 

~z r~ alleges possession of ''the whole land;^^ but this is de- 
ton nied by the answer, which insists that the parcel of 
Coffer, seventy or eighty acres in dispute was never included 
in the sale, nor possession given of it. This parcel 
was conveyed to the appellee by his father by deed 
bearing date the 29th day of July, 1813, and the part 
covered by his deed of 1st May, 1848, to the appel- 
lant, was devised to him by his father's will under 
date of 1st February, 1817. These were parcels of 
one entire tract. That all of it was embraced in the 
original parol contract is not only proven by the ap- 
pellant's son, but also by the pointed and explicit ad- 

190] missions cf the appellee to two other witnesses in the 
cause, that he had sold all of his lands, withoui any 
reservation whatsoever. If, therefore, possession had 
been delivered under the parol contract, there would 
have been no pretence for restricting it to one of these 
parcels rather than another. Shall the deed have the 
effect to restrict it to the parcel conveyed ? Of course 
it shall, if the deed is to be accepted as the full ex- 
pression of the entire contract ; but if it is to be \ iewed 
under the circumstances as the execution of only a part 
of the contract, it seems to me it would be difficult to 
circumscribe the acknowledged possession of the ap- 
pellant to the land deeded, and exclude from it the 
whole that was bargained for and paid for. 

But the testimony of the single witness as to posses- 
sion is not only aided by this corroborative circum- 
stance, but by a material fact averred by the bill, and 
virtually admitted by the answer. The complainant 
states, *'he was put in possession of the whole land 
by Coffer, and he held and occupied it, not presuming 
any difficulty, and that Coffer was honest and meant 



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COURT OF APPEALS OF VIRGINIA. 203 

honest, until some two years, when he heard he 1868. 
claimed not to have sold a piece of the land, and sued xerm?^ 
vour orator for a trespass; which suit was tried, and "Z ~ 
a verdict on the evidence found for the defendant, your ton 
orator; after which said Coflfer proposed to your ora- coffer. 
tor to take half of the lot claimed." In support of 
this allegation, the clerk's certificate is filed of the ih- 
stitation of such a suit between these parties of tres- 
pass quare claxisum f regit ^ 30th January, 1852, and a 
verdict for the defendant at the October term, 1853. 
This would seem to be too vague and indefinite to ad- 
mit of weight or application in this case, if it were not 
aided by the context of the bill, and more especially 
by the character of the answer on this point. It will 
be seen that the respondent in nowise denies the ex- 
istence and result of this suit, and its relation to this 
land; he does not contradict the averment that he had [191 
sought to test his title to it in this way, and had been 
defeated; but contents himself with denying, **that 
after the decision of the action of trespass alluded to 
in the complainant's bill, or at any other time, he pro- 
posed to the complainant to take half of said land.^^ 
If this action had nothing to do with his claim to, and 
the complainant's possession of, this lot of land in 
dispute, the respondent should have shown or averred 
it; and his failure to do so must be construed into a 
tacit admission of the main averment of such a suit 
with such a lesult, and with reference to this very lot. 
The denial of possession by the answer, therefore, is 
adequately disproved and overborne under the plead- 
ings by this significant fact, taken in cocnection with 
the positive testimony of the witness Broughton. 

I BOW turn to the question of law that arises upon 
the state of facts in this cause. It pertains to that 
cardinal rule of evidence which excludes parol testi- 



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204 COURT OF APPEALS OF VIRGINIA. 

1868. mony as "the means of contradicting oi varying the 
Term7 terms of a valid written instrument." Among the 

~z ~ exceptions to this rule is the case where the original 
ton contract was verbal and entire^ and a part only of it 
Coffer, was reduced to writing,'^^ 1 Greenleaf § 284a, 12th 
ed. by Redfield, and cases cited in note. The deci- 
sions of this court afford a very apt illustration of Uiis 
principle in the case of hire- bonds. The contract of 
hire is verbal and entire^ stipulating : 1. The term of 
the bailment and sum to be paid; and, 2. The em- 
ployment of the slave. The hire-bond is usually the 
written expression of the former; and the latter left 
to rest upon parol proof. Hence, a hire bond, being 
the reduction to writing of only a part of the contiact 
of hiring, does not preclude parol testimony as to 
the remaining part of the verbal agreement as to the 
mode of employment. Harvey v. Skipwitli^ 1() Gratt. 
410; Ilowell v. Cowles^ 6 Gratt. 393. It is an obvious 

192] objection to this use of parol testimony, that the ex- 
cuse for it can only appear by its introduction, becaose 
in its absence the writing must be taken as the whole 
of the contract. Hence Greenleaf adds : ''But this is 
a qualification of the general rule which, although cor- 
lect in strictness of principle, it will be always diflBcult 
to apply in practice, without materially trenching on 
the integrity of the rule itself. But the English 
courts do not hesitate to act upon the exception, es- 
pecially where that seems the only mode of reaching 
the justice of the case and of enabling one party to 
escape from the fraud or injustice of the other. " We 
may, therefore, regard this exception, notwithstand- 
ing the plausible objection to it, as firmly established 
and grafted on this vexed doctrine 6f the admissibility 
of parol testimony touching written instruments. 
Let us now enquire if this case falls properly within 



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COITRT OF APPEALS OF VIRGINIA. 206 

this exception. There cannot be a dcubt upon the 1868. 
proofs, that all of the land, comprising both paicels, Tera?" 

was bargained and paid for. This rests not upon the "t ~ 

testimony of the appellant's son, but upon the explicit ton 
admissions of the vendor to two other witnesses in the coffer. 
cause, and yet more strongly on his acknowledgement 
at tbe time of making the deed, as implied by his en- 
gagement to make the deed for the other parcel at a 
futuie time. But he executes his contract of sale only 
in part; he makes the deed for one parcel of the land 
only; but accepts the purchase naoney for both; and 
upon the false suggestion of some difficulty as to the 
title, asks to postpone to a future time the making of 
the deed to the other parcel. It would seem that ho 
was, perhaps, contemplating some evasion of his con- 
tract, as justified by his conversation with Broughton, 
which is detailed by the witness, Scesson, in this way: 
"Broughton said, Mr. Coffer, you sell me all your 
possession; and Mr. Coffer replied, Yes, all I pay tax 
for. Mr. Broughton replied, he could not ask any 
more of any man than all his possession, or what he [193 
paid tax for.'' He has examined but two witnesses 
in this cause, and both of them speak solely to this 
discreditable subterfuge. It is, therefore^ clearly in- 
ferrible that apart from the denials of his answer, he 
seeks to excuse himself by this chicanery. 

Here, then, in the language of the eminent author 
already quoted, is *'a fraud and an injustice, from 
which the party can escape" only by virtue of this ex- 
ception to the general rule. It is a far stronger case 
than that of the hire-bond; there, the omission to 
stipulate in writing for the employment of the slave, 
while taking the bond for the payment of the hire, 
was usual and without the suspicion of fraud. The 
cases may be assimilated, however, by supposing the 



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206 COURT OF APPEALS OF VIRGINIA. 

1868. owner to insist on inserting in the bond the stipulations 
Tera!^ as to the employment of the slave, and the obliger giv- 
'Z ~ ing a simple bond for the hire, and upon a false sug- 
ton gestion and for a fraudulent purpose, postponing to a 
Coffer, future time the further written assurance required of 
him ; and at last refusing to give it. In such a case, 
the motive, the propriety, and the. justice of giving 
the injured party the full benefit of this exception to 
the general rule in the utmost latitude of parol proofs, 
are far more clearly displayed and justified as the only 
means of avoiding a fraud. So in this case, and the 
view I take of it, the exclusion of these parol proofs 
would not be justified by the course of judicial deci- 
sions, however intricate they may be in some parts of 
this leading doctrine of evidence, and would protect 
the cheat which was manifestly practiced on the ap- 
pellant. I cannot, therefore, for these reasons, thus 
briefly assigned, concur in the affirmance of the decree 
below. 

JoYNEs, J. The bill alleges that the plaintiff, 
Broughton, purchased from the defendant. Coffer, by 
a verbal contract, a body of land containing four hun- 
194] dred and fifty acres, at the price of $1,500, cash; that 
the defendant conveyed by a deed which is exhibited, 
a tract containing three hundred and seventy-eight 
acres, described by metes and bounds, saying that he 
could not then convey the residue, because there was 
some question of title or something to arrange first, 
but promising to convey it subsequently; that upon 
that understanding and agreement the plaintiflf took a 
deed for the three hundred and seventy-eight acres, 
and paid the whole purchase money; that the defen- 
dant put the plaintiflf into possession of the whole land 
purchased, which he has since held; that the defendant 



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COURT OF APPEALS OF VIRGINIA. 2()7 

has refused to convey the residue of the land, pretend- 1868. 
ing that he did not sell it; and pi ays a decree for xerm!^ 

specific execution. The deed conveys the three hun- 'z — 

dred and seventy-eight acres for the consideration of ton 
81,500, making no reference to the residue of the land, coffer. 

The defendant, in his answer, denies the sale of any 
land except that conveyed by the deed ; denies that 
the defendant agreed to execute a deed subsequently 
for any other land; denies that the defendant put the 
plaintiflf in jjossession of any land except that em- 
brace by the deed; and relies on the Statute of 
Frauds. 

Depositions were taken on both sides. The evidence 
contained in these depositions prov3s that Coffer made 
a verbal contract with Broughton to sell hira the 
whole of his land, containing about four hundred and 
fifty acres, for the gross sum of §1,500, cash. The 
land lay in one body, though Coffer held three hun- 
dred and seventy-eight acres under one title, and the 
residue, of about seventy acres, undei another. I 
think this evidence is sufficient to outweigh the denial 
in the answer, as to the original parol contract. 

Then as to the deed. On its face, the deed would 
seem to be a complete execution of the contract. It 
imports that the $1,500 were paid in consideration of 
the three hundred and geventy-eight acres conveyed, [1<J5 
and no reference is made to any other land. If there 
was no other evidence, we would be bound to hold 
that the deed expr3ssed the final agreement of the 
parties, namely, for a sale and conveyance of three 
hnndred and seventy-eight acres, instead of four hun- 
dred and fifty acres, as contemplated originally. To 
sho'v that this was not really so, and that the deed 
was only designed as a partial execution of the parol 
contract, the plaintiff examined his son as a witness, 



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208 OOUKT OF APPEALS OF VIBGINIA. 

1868. who testified that he was present in Mr. Love's oflBce 
Tenm7 "^^^^ the money was paid to the defendant by the 

~ ~ plaintiff, and that the defendant said he coold not con- 
ton vey the seventy acres *Hhat day;" ''it was in dis- 
Ck)ffer. pute;" and that the plaintiff told the defendant that 
he would pay the money that day, and take a deed 
for the balance of the land at another time. In a sub- 
sequent deposition, this witness gives this conversation 
in substantially the same form, except only that ne 
makes the defendant say that he could not give the 
plaintiff a deed for the seventy acres, without adding 
''that day," as in the first deposition. His meaning, 
however, was probably the same in both depositions, 
lie does not say, in eithei deposition, that the defen- 
dant said he would make a subsequent deed for the 
seventy acres, or that he made any reply to the lenoark 
of the plaintiff, that he could make a deed for the bal- 
ance of the land at another time. But as this remark 
showed the understanding and expectation of the 
plaintiff, and as the defendant expressed no dissent, 
as far as appears, he ought to be understood as agree- 
mg to convey the seventy acres by subsequent deed. 
I regard this witness, therefcre, as testifying, in effect, 
that the defendant agreed to make such a deed. 

Gunnell, a witness examined by the def endstat, tes- 
tified that while Mr. Love was writing the deed, he 
heard a conversation between the plaintiff and defen- 

196] dant; that the plaintiff wanted more land pat into the 
deed; that the defendant said he would not sell more 
land than he paid tax for; that he (the witness,) un- 
derstood that there was some land which the plaintiff 
wanted the defendant to put in the deed, which the 
defendant refused to do; but what land it was he 
could not say. Another witness examined by the de- 
fendant was present in the office of Mi. Love when 



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COVRT OF APPEALS OF VIRGINIA. 209 

the deed was delivered and the money paid, but he 1868. 

does not testify to any conversation bet'veen the Tem7 

parties on that occasion. rr — 

'- Brough- 

The testimony of Gunnell affords no supfK)rt to that ton 
of Bronghton in regard to the alleged agreement to coffer. 
make a subsequent deed for the seventy acres. And 
the whole of the parol evidence, supposing it to be 
admissible, is insufficient to establish, against the ex- 
press denial of the answer*, and the presumption af- 
forded by the deed, that the deed was intended to be 
only in partial execution of the original parol contract 
and that the seventy acres were to be conveyed by a 
Bubsequent deed. Taking the pleadings and all the 
evidence together, the necessary conclusion is, that 
the final contract between the parties was fully exe- 
cuted by the conveyance of the three hundred and 
seventy-eight acres, and that there was no agreement 
by the defendant to make a subsequent deed for the 
seventy acres. The fact that the answer was proved 
to be false as to the quantity of land embraced in the 
original parol contract, did not destroy the weight as- 
cribed to it by law, in respect to other matters, as to 
which it was not disproved by the requisite amount 
of evidence. Fant v. Miller dk Mayhew^ 17 Gratt. 
187. 

But if the parol evidence had been stronger than it 
is, it was not admissible to prove that the deed was 
understood by the parties to be only a partial execu- 
tion of the original parol contract. All previous nego- 
tiations were merged in the deed, which can alone be 
looked to, in the absence of fraud or mistake, to ascer- [197 
tarn the final contract between the parties. 1 Green- 
leaf Evid. § 275; 4 Cow. Phil. Evid. 1471. Upon its 
face the deed imported a complete executioQ of the 
contract on vshich it was founded, and in the absence 

Vol. XVIII — 27 



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210 OOUBT OF APPEALS OF VIRGINIA. 

1868. of traud or mistake, parol evidence cannot be recc ived 
Tem.^ to show that the parties understood and intended it to 

"T ~ be only a partial execution of it. Howes v. Barkery 

ton 3 John. K. 506; Falconer v. Garrison^ 1 McCord 
Coffer. Const. R. 209. In the former of these cases, Thomp- 
son, J. said : '^The deed cannot be consideied as an 
execution cf the contract in part only. If an execu- 
tion at aU, it must be of the whole contract, and the 
articles of agreement are a nullity. If so, the testi- 
mony offered in support of the plaintiff's action to 
show that the consideiation expressed in the deed was 
more than ought to have been paid, could be viewed 
in no cthei light than as parol evidence repugnant to 
the written contract." Kent, Ch. J. after saying he 
had struggled hard to help the plaintiff, added: '^But 
I cannct surmount the impediment of the deed, which 
the plaintiff has accepted from the defendant, and 
which contains a specific consideration in money, and 
the quantity of acres conveyed, with the usual cove- 
nant of sesin. Sitting in a court of law, I think I am 
bound to look to that deed as the highest evidence of 
the final agreement of the parties, both as to the 
quantity of the land to be conveyed and the price to 
be given for it. If there be a mistake in the deed, the 
plaintiff must resort to a court of equity," «fec. 

In this case it is not pretended that there was any 
mistake in the deed. It conveys precisely what both 
parties understood it to convey when it was executed. 
The parol evidence was not admissible on the ground 
of fraud, because that evidence was itself the only- 
proof of the alleged fraud. Towner v. Lucas^ 13 
Gratt. 705. 

The alleged agreement to convey the seventy acres 

198] by a subsequent deed can only be relied on, therefore, 
as a new and independent contract, and not as part of 



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OOUKT OP APPEALS OF VIRGINIA. 211 

the original contract remaining unexecuted. But it 1868. 
cannot avail the plaiDtiflf in this view. For — 1. It Term7 

was not in writing. 2. There was no part perform- -r — 

ance of it. Only one witness testifies that the defen- ton 
dant put the plaintiff into possession of the seventy coffer. 
acres, and his testimony on this point is in direct con- 
flict with the answer, and is not supported by any 
other evidence. 

The bill alleges, that the defendant brought an ac- 
tion of trespass against the plaintiff, in which there 
was a verdict for the defendant in the action. The 
bQl does not state what was the foundation of the ac- 
tion, but from the connection in which the action is 
alluded to, it may be inferred that it related to the 
land in dispute. The bill further alleges, that after 
the decision of the action of trespass, the defendant 
proposed to the plaintiff to take half of the seventy 
acres. The defendant, in his answer makes no further 
allusion to the action of trespass than to deny that, 
after the decision of that action, or at any other time, 
he proposed to the plaintiff to take half of said land. 
The clerk's memorandum only states that an action of 
trespass quare dauswm f regit wag brought in January, 
1852, and decided by a verdict for the defendant in 
October, 1853. It shows nothing as to the foundation 
of the action, or the grounds of the verdict, and does 
not even state who were the parties. [ am unable to 
see that there is, in all this, anything from which it 
can be inferred that the plaintiff had been put into 
possession of the seventy acres. The plaintiff in that 
action may have failed for the very reason that the 
defendant had never been in possession of the land, or 
executed any act of ownership over it. 

In every view, therefore, I am of opinion that the 
case was against the plaintiff, and that his bill was 



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212 COURT OF APPEALS OF VIRGINIA. 

1868. properly dismissed. He may have been cheated by 
T^rm7 *^® defendant, but rules of law, which we cannot set 

"T — aside, forbid our giving him relief. 

ton I think the decree should be affirmed. 

V. 

Coffer. 
199] MoNouRE, P. concurred in the opinion cf Joynes, J. 

Decree affirmed. 



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COURT OF APPEALS OF TIRGINIA. 213 



Woodward, Baldwin & Co. v. Foster. 1868. 

January 
Term. 
February 5. [200 

In an action by an endorsee against his immediate endorser, upon 
a protested bill, parol evidence of an agreement between 
them, at the time of the endorsement, which would vary 
the legal liability of the endorser under his endorsement, is 
inadmissible. 

This was an action of debt in the Circuit Court of 
the city of Richmond, brought by Woodward, Bald- 
win & Co. against L. W. Glazebiook and Foster & 
Co. to recover the amount of two bills of $1,000 each, 
drawn by Glazebrook by his agent in March, 1862, 
upon Connolly & Co., of New York, in favor of R. 
F. Foster & Co. , and endorsed by them to the plain- 
tiffs, and protested for non-acceptance. The suit 
abated as to Glazebrook by his death, and by cod sent 
was dismissed as to Enders, and carried on against 
Foster alone. 

The case was tried in May, 1867, and after the 
plaintiffs had introduced the bills as evidence, and 
proved the protest and notice, the defendant intro- 
duced evidence to prove that, at the time the bills 
were endorsed and delivered by the defendant Foster 
to E. P. Smith, the age at of the plaintiffs, it was 
agreed between Foster and the said agent of the plain- 
tiffs, that Foster should retain in his hands the amount 
paid him for the bills by said agent, which was the 



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214 COURT OF APPEALS OF VIRGINIA. 

1868. amouDt expressed upon their face, with fifteen per 
Term7 ^^^^- added, and paid in Confederate States treasury 
notes; and not pay the same over to the drawers of 
wardj the bills until it was ascertained that the bills had been 
& Qo!^ accepted and paid by the drawees in New York ; and 
Foster ^^ ^^^^ should net be accepted and paid by the 
201] drawees, upon notice thereof and the return of said 
bills to Foster, he should refund the money so paid 
to him for them. And he also introduced evidence to 
prove that he was a broker, and had no interest in the 
bills; but was only to receive a commission of two^ 
cent, in case they were paid. There was other evi- 
dence, which it is unnecessary to state. 

Aftei the evidence was introduced, the plaintiffs 
moved the court to give to the jury the following in- 
struction, viz. : 

The court instructs the jury to disregard all parol 
evidence tending to prove an agreement between the 
defendant Foster and Smith, the agent of the plain- 
tiffs, before or at the time of the endorsement of the 
bills of exchange, inconsistent with the contract be- 
tween the parties, created by the endorsement of said 
bills of exchange by the said Foster, and the delivery 
of the same by him to said Smith; and that the con- 
tract so created, as evidenced by said bills of exchange 
with the endorsements thereon, between the said Fos- 
ter and the plaintiffs by their agent said Smith, was 
an absolute contract by the said Foster to pay to the 
said plaintiffs the amount of said bills of exchange 
with all legal damages theieon, provided the said bills 
should be duly presented to the drawees Connolly & 
Co., and not paid by them, and duly protested, and 
due notice of such protest given to said endorser Fos- 
ter; the value of said bills to be computed according 



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COURT OF APPEALS OF VIRGINIA. 215 



to the value of Confederate notes at the date of said 1868. 

endorsement. Tera7 

The court refused to give this instruction, and the ^ 

plaintiff excepted. And the jury having found a ver- ward^ 

diet in favcr of the plaintiffs for $86.25, a part of the & co. 

debt in the declaration mentioned, with interest from „ 'Y- 

' Foster. 

the 3d of April, 1865, until paid; and the court having 
rendered a judgment accordingly. Woodward, Baldwin [202 
& Co. applied to this court for a writ of error; which 
was allowed. 

E. Y. Cannon and Griswold^ for the appellants. 

Hmoison db Dtmlop^ for the defendant. 

JoTNEs, J. This action was brought by Woodward, 
Baldwin & Co. against Foster & Co. as endorsers of 
two bills of exchange drawn in Richmond in 1862, 
upon New York, payable to the order of Foster & 
Co., ana by them endorsed specially to the plaintiffs, 
and which were dishonored by the drawees. The suit 
was dismissed as to Foster's partner, and proceeded 
to a judgment against Foster, to which the plaintiffs, 
having recovered less than they claimed to be entitled 
to, obtained a supersedeas. 

Upon the trial, the defendant introduced evidence 
to prove, among other things, that when the bills of 
exchange were endorsed by Foster and delivered by 
him to Smith, the agent of the plaintiffs, to whom 
Foster had sold them, it was agreed between Foster 
and Smith that Foster should retain in his hands the 
amount paid to him by Smith for the bills, being the 
sum expressed on their face, with fifteen per cent, 
added, which was paid in Confederate States treasury 
notes; and not pay the same over to the dra\^ er until 



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216 COURT OF APPEALS OF VIRGINIA. 

1868. it should be ascertained that the bills had been paid 
T^imJ ^y *^^ drawees; and that, in case they should not bo 
paid, Foster should, upon notice thereof, and the re- 
ward j turn of the bills to him, refund the money to Smith; 
& C^!" tihat this arrangement was made because it was uncer- 
V- tain whethei the bills would be paid ; that Foster was 
a broker, and had no interest in the bills, but was 
only to receive a commission of two per cent, as com- 
pensation for services as broker, in case the bills were 
paid. 

The counsel for the plaintiffs moved the court to in- 
struct the jury to disregard all the parol evidence tend- 
203] ing to prove an agreement between Foster and Smith, 
before or at the time of the endorsement of the bills, 
inconsistent with the i^ontract created by the endorse- 
ment of the bills by Foster and the delivery of them 
to Smitli, and that the contract evidenced by the said 
bills and the endorsements thereon was an absolute 
contract by Foster to pay to the plaintiflfs the amount 
of said bills, with all legal damages, provided they 
should be duly presented, dishonored and protested, 
and notice thereof given to Foster; the value of the 
amount called for by said bills to be computed accord- 
ing to the value of Confederate notes at the date of 
the endorsements. The court refused to give this in- 
struction. The propriety of this refusal is the point 
for decision. The only question raised in the argu- 
ment in this court is, whether it was admissible for 
the defendant to prove the parol agreement between 
himself and Smith at the time of the endorsement and 
delivery of the bills. This is the only question we 
are expected to decide; the counsel for the defendant 
having declined to raise, any question arising out of 
the war which was pending between the United States 



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V. 

Foster. 



COURT OF APPEALS OF VIBOINIA. ^17 

and the Confederate States at the tune these transac- 1868. 
tions took place. TermT 

The legal import of Foster's endorsement of the ^^ 
bills was, that he transferred them to the plaintiffs, ward, 
and assumed upon himself the ordinary liabilities of ^ (^ 
an endorser of such bills. This legal intendmeut as 
to Foster's liability is not repealed or impaired by the 
facts that he was a broker, that he had no interest in 
the bills, and that he was only to receive a commis- 
sion for services as broker in case the bills were paid. 
It is not the usage of brokers to endorse all the bills 
they selL Why did Foster endorse the bills at all, 
unless it was to give them credit by his name ? Why 
were they not drawn payable to the order of the 
drawer, as is usually done when the bill is to be sold 
in the market, upon the credit of the drawer alone ? 
Foster's endorsement was not necessary to carry into [204 
effect the agreement as to his holding the proceeds. 
See Goupy ife al, v. Harden cfe aU, 7 Taunt. K. 159, 
2 Eng. C. L. R. 58. 

The evidence in relation to the cotemporaneous 
parol agreement tended to prove, that Foster was not 
to be liable as endorser, but was to be liable only as 
bailee of the sum paid to him for the bills, which sum 
he was to refund to Smith or to pay over to the 
drawer, accordingly as the bills might be paid or dis- 
honored by the drawees. This evidence, therefcre, 
evidently tended to vary and contradict the legal im- 
port of the endorsement. It did so as much as if the 
bills had belonged to Foster himself. The instruction 
asked was predicated on that view, and by refusing it 
the court virtually decided that it was no objection to 
the evidence; that it tenaed to vary or ccntraaict the 
contract imported by the endorsement, and this has 
not been disputed in the argument. 
Vol. xvirr — 28 



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218 COUET OF APPEALS OF VIRGINIA. 

1868. If the contract of Foster had been written out in 

Term7 ^^ords, this evidence would have been inadmissible 

^^ upon the well established and familiar principle, that 

ward, evidence of a contemporaneous parol agreement is not 

& Oy.^ admissible to contradict or vary that which is contained 

-Z: ID a. written instrument. 1 Greenleaf Evid. §§ 27'/, 
Foster 

281, 282; Towner v. Ztccas' ex' or, 13 Gratt. 703; 
Allen V. Furbish^ 4 Gray K. 504. And scch evidence 
could not be received on the ground that it would be 
a fraud to insist on the written contract, in violation 
of the parol agreement, because the evidence of the 
parol agreement is itself the only evidence of fracd. 
Towner v. Lucas^ ex" or. These general principles are 
of the utmost importance in the administration of jus- 
tice. Without them, there would be no certainty in 
written contracts, and no safety in the most fcrmal 
transactions. They ought not to be frittered away 
by nice distinction to meet the hardships, real or sup- 
posed, of particular cases. 
205] These general principles were not controverted in 

the argument, but it was insisted t hat they have no 
application to contracts, the terms of which are not 
written out in words, but are implied by law. And 
it was Contended accordingly, that where an endorse- 
ment is in blank, or where, as in this case, its express 
terms import a transfer of the paper to the endorsee, 
and aie silent as to anything more, it is competent for 
the endorser, in an action against him by his imme- 
diate endorsee, to prove the special agreement on 
which the endorsement was made, whatever it may 
be, and thus to vary or contradict the ordinary l^al 
import of the endorsement. The following authorities 
were cited in support of this view : Hill v. J?/y, 5 
Serg. & Rawl. R. 363; Barker v. Preniis^ 6 Mass. 
R. 430; Twogood ex parU, 19 Ves. R. 229; Mehetin 



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COURT OF APPEALS OF VIRGINIA. 219 

V. Bamet, Coxe R. 86; Field v. BiddU^ 1 Yeate's 1868. 
R. 132. Other cases of like effect are collated in 4 xermT 
Ccwen Phil. Evid. 1473. The counsel for the plain- ~^'77~ 
tiffs cited, WaUon v. Ilunt^ 6 Gratt. 633; and Tow- ward 
ner v. Lucds^ ex^or^ 13 Gratt. 705. & Co. 

There is no just ground in principle for the distinc- ^ ^• 
tion thus contended for. When the legal import of 
a contract is clear and definite, the intention of the 
parties is, for all substantial purposes, as distinctly 
and as fully expressed, as if they had written oi3t in 
wordfl what the law implies. It is immaterial how 
mt ch or how little is expressed in words, if the law 
attaches to what is expressed a clear and definite im- 
port. Though the writing consists only of a signa- 
trre, as in the case of an endorsement in blank, yet 
where the law atta<:hes to it a clear, unequivocal and 
definite import, the contract imported by it can no 
more be varied cr contradicted by evidence of a co- 
temporaneous parol agreement, than if the whole con- 
tract had been fully written out in words. The mis- 
chiefs of admitting parol evidence would be the same, 1 206 
in such cases, as if the terms implied by law had been 
expressed. 

In conformity with these views, the rule which ex- 
cludes evidence of a cotemporaneous parol agreement 
to contradict or vary a contract in writing, is applied 
in England to the case of an endorsement in blank, as 
may be seen froa the cases of Iloane v. Graham^ 3 
Camp. R. 57; and Free v. HatcJcim^ 8 Taunt. R. 92, 
(4 Eng. C. L. R. 31). It is applied also to the case 
of an acceptor, the special terms of whose contract, 
as in the case of an endorser, are not expressed in 
words, but are supplied by legal construction and in- 
tendment. Besant v. Cross^ 10 Com. B. R. 895, (70 
Eng. C. L. R.); Adams v. WordUy^ 1 Mees. & 



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220 OOUBT OP APPEALS OP VIRGINIA. 

1868. Welsh. K. 374; Ace. CowUs v. Townsend^ 31 Alab. 
January -p -iqq 
Term. ■^* ^^^• 

-— TT" Id P^J^^ V. Street, 1 Mood. «fe Walk. K. 226, m 
Wood- ^ 

ward, Eng. C. L. K. 299,) tried before Lord Tenterden at 

& Co!*^ iVm Prius, the action was hrought hy the endorsee 
FowtP ^^ ^ ''^^^ ^^ exchange against his immediate endorser. 
The defence was, that though the plaintiff gave value 
■ to the defendant, it was upon a verbal agreement that 
he should sue the acceptor only, and that he should 
not sue the defendant as endorser. Ix)rd Tenterden 
held, that such an agreement, if proved, would be a 
good bar to the action. This case was cited by coun- 
sel in Foster v. Jolly, 1 Crompt. Mees. & Rose. R. 
703, as an authority to show, that evidence of a co- 
temporaneous parol agreement might be given to vary 
the written contract of an endorser. But Parke, B. 
said that that case i^W within the class in which the 
consideration is contradicted; the evidence went to 
show that there was no consideration as between the 
plaintiff and the defendant. Whether this observa- 
tion was or was not justified by the facts of the case, 
it indicates the ground upon which alone, in the 
207 1 opinion of a Judge of the greatest learning and emi- 
nence, the opinion of Lord Tenterden can be sus- 
tained. The general rule is thus stated by Mr. Jus- 
tice Byles, in his vvcrk on Bills 77, and is applicable 
to all the parties to a bill of exchange: ^'Ko verbal 
agreement can take effect if cotemporaneous with the 
making of the instrument; for that would be to allow 
verbal evidence to vary a written contract. 'Every 
bill of note,' says Parke, J., * imports two things: 
value paid, and an eagagement to pay the amount on 
certain specified terms. Evidence is admissible to 
deny the receipt of value, but not to vary the engage- 
ment.' " So it has been held that between theim- 



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OOUKT OF APPEALS OP VIRGINIA. 221 

mediate parties, evidence may be given of a cotempo- 1868. 
raneons parol agreement, consistent with the written Termf 
contract; as, for example, that the bill was endorsed .^^ 
and handed over for a particular purpose, as for col- wardj 
lection, without giving to the trustee the usual rights ^ co!° 
of an endoisee; Manley v. Bmfcot^ 2 El. & Bl. E. 46, ^^^ 
(75 Eng. C. L. R.); or that the bill was transferred 
as an escrow, or upon an express condition, which has 
not been complied with. Bell v. Lord Inyestre^ 12 
Queen's Bench R. 317, (64 English C. L. R. 10,) 
Ricketts v. Pendleton^ 14 Maryl. R. 320. See also 
WaJlis V. LiiieU, 11 Com. Bench R. 369, (103 Eng. 
C. L.,) and cases cited. In short, such cases are sub- 
ject to the ordinary lules applicable to the admission 
of parol evidence in reference to written contracts. 
Fnder these rules, it is always competent to show a 
want of consideration of fraud, as between the imme- 
diate parties, in order to defeat the contract. 1 
Greenl. Evid. § 284. So evidence of the relations of 
the parties, and cf the circumstances under which a 
^ ritten contract was made, may be given in order to 
explain the intention when not plainly expressed. 1 
Green. Evid. § 477 ; Crawfcyrd v. Janett^ 2 Leigh 630 ; 
Nash V. Tmvne, 5 Wall. U. S. R. 689. And this 
rule, while applicable to all written instruments, ap- 
plies especially to mercantile instruments. Moore v. [208 
fMt, 10 Giatt. 284; Bainbrid^e\, Wade, 16 Queen's 
Bench R. 89 (71 Eng. C. L. R.); Humphrey v. DaU, 
7 El. & Bl. R. 266 (90 Eng. C. L. R.). See Broom's 
Legal Maxims, 465-477. 

In Bank of United States v. Dunn, 6 Peter's R. 
51, the action was brought against Dunn as endorser 
of a note made by Scott, payable to Dunn, and en- 
dorsed by him, and by one Carr. The defendant 
offered Carr as a witness, who testified that before he 



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V. 

Foster. 



222 COCRT OF APPEALS OF VIRGINIA. 

1868. endorsed the note he had a conversation with Scott, 
Term7 ^^e maker, who told him that a pledge of stock had 
yr , been, or would be, made to secure the ultimate pay- 
ward^ ment of the note, and that there would be no risk in 
^ Co. endorsing it ; that he then went to the bank and saw 
the president and cashier, from whom he understood 
that the names of the two endorsers residing in Wash- 
ington were required on the note as a matter of form ; 
and that he would incur no risk in endorsing it; that 
he communicated both conversations to Dunn, and 
persuaded him to endorse the note, representing to 
him that be would run no risk, as the note was 
secured by a pledge of stock; that the impression he 
received from Scott and from the president and cashier 
was, that the endorsers vrculd be held liable onl\^ in 
the event of deficiency after the pledge of stock had 
been first resorted to; and that he and Dunn endorsed 
the note under this belief, and without any considera- 
tion. 

The Supreme Court held, that this evidence was 
improperly received. Mr. Justice McLean, delivering 
the opinion of the court, said: **On the part of the 
defendant's counsel it is contended, that between par- 
ties and privies to an instrument not under seal, a 
want of consideration in whole or in part may be 
209] shown. That the endorsement in question was made 
in blank; and that it is corapetent for the defendant 
to prove under what circumstances it was made; that 
if an assurance were given at the time of the endorse- 
ment that the names of the defendant and Carr were 
only required as a matter of form, and that a guaran- 
tee had been given for the payment of the note, so as 
tc save the edorsers from responsibility, it may be 
proved under the rule which permits the proniisor to 



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OOUKT OF APPEALS OF VIHGINIA. 223 

go into the consideration of a note or bill between the 1868. 
original parties. T^rm.^ 

*'In support of this position authorities are read ^ , 
from 5 Serg. & Rawle 363, and 4 Wash. 0. C. Rep. ward, 
480. In the latter case, Mr. Justice Washington & c^ 
says: 'The leascns which forbid the admission of „ ^* 
parol evidence to alter or explain written agreements 
and other instruments do not apply to those contracts 
implied by operation of law, such as that which the 
law implies in respect to the endorser of a note of 
hand. The evidence of the agreement made between 
the plaintiffs and defendants, whereby the latter were 
to be discharged on the happening of a particular 
event, was therefore properly admitted. 

**The decision in 5 Serg. & Rawle was on a ques- 
tion somewhat analogous to the one under considera- 
tion, except in the present case there is no allegation 
of fraud, and the decision in that case was made to 
torn in part at least on that ground. 

"In Pennsylvania there is no court of chancery, 
and it is knoT^ n that the courts in that State admit 
parol proof to affect written contracts to a greater 
extent than is sanctioned in ttie States where a 
cHancery jurisdiction is exercised. The rule has been 
differently settled in this court." 

' 'The liability of parties to a bill of exchange or prom- 
issory note had been fixed on certain principles, which 
are essential to the credit and circulation of such 
paper. These principles originated in the convenience 
of commercial transactions, and cannot now be de- 
parted from. 

*'The facts stated by the witness Carr are in direct 
contradiction to the obligations impliea from the en- [210 
dorsement of the defendant. By his endorsemert he 



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224 COUHT OF APPEAI.8 OF VIRGINIA. 

1868 promised to pay the note at maturity, if the drawer 
Tenm'!^ should fail to pay it. The only condition on which 
"■rr~T~ this promise was made was that a demand should be 
ward J made of the drawer when the note should become 
& Co!'* ^^®5 ^^^ ^ notice given to the defendant of its dis- 
-, Z: honor. But the facts stated by the witness would 

Foster. *^ 

tend to show that no such promise was made. Does 
not this contradict the instrument ? and would not 
the precedent tend to shake, if not destroy, the credit 
of commercial paper." 

In Bro%cn v! Wilry db al. 20 How. U. S. R. 442, 
in an action by the payee of a bill against the drawer, 
the defendant offered evidence to prove that it was 
expressly agreed by the agent of the plaintiffs, when 
the bill was delivered to him, that it should not be 
presented for acceptance until other bills drawn on the 
same parties in favor of the plaintiffs had been pro- 
vided fcr by the defendant by placing funds in the 
hands of the drawees, who had agreed to accept the 
last bill after they should receive funds to meet the 
others, and that the bill would not have been delivered 
to the agent of the plaintiffs if he had not agreed to 
hold it up. The Supreme Court held that the evi- 
dence was properly rejected. 

It was argued, that the evidence offered did not 
contradict or varj' any of the terms of the bill, but 
only proved an agreement collateral to the written 
contract and cotemporaneous with it, leaving its terms 
intact, but limiting the right which the law gives of 
presenting the bill at any time before the day of pay- 
ment. Mr. Justice Grier, delivering the opinion of 
the court, said: ' 'Where the operation of a contract 
is clearly settled by general principles of law, it is 
taken to be the true sense of the contracting parties. 
This is not only a positive rule of the common law, 



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COUBT OF APPBAI.S OF VIEGINIA. 226 

but it is a general principle in the construction of con- 1868. 
tiacts. Some precedents to the contrary may be Term7 
found in some of our States, originating in hard cas.3S, ^^ 
but they are generally overruled by the same tribunals ward, 
from which they emanated, on experiences of the evil ^ q^ 
consequences flowing from a relaxation of the rule^ ^ ^' 
There is no ambiguity in this case which needs expla- [211 
nation. By the face of the bill the owner of it had a 
right to demand acceptance immediately, and to pro- 
test it for non-acceptance. The proof of a parol con- 
tract that it should not be presentable till a distant, 
uncertain and undefined period, tended to alter and 
vary, in a very material degree, its operation and 
eflfect. 

In Warren v. Wheeler^ 8 Mete. R. 97, a written 
contract to pay for goods, on which the action was 
founded, expressed no time of payment, so that, by 
legal construction, the payment was to be made on 
demand. It was held by the Supreme Court of Mas- 
sachusetts, that the defendant could not give evidence 
of a cotemporaneous parol agreement that payment 
should be made at a subsequent time, which had not 
arrived when the action was commenced. Id .Howe 
V. Jferrilly 5 Cush. E. 80, the same principle was ap- 
plied to the case of an endorsement in blank. The 
name of a party appeared on a note as second en- 
dorser, in regular form, and it was held that he could 
not, by parol evidence, of an agreement to that eflfect, 
be converted into a guarantor. Shaw, C. J. said: 
'* It is no more competent to alter and vary the legal 
effect of a written instrument by parol evidence, than 
to alter and change its express terms.'- The same 
was held in reference to the contract of an endorser 
in PreseoU Bank v. Caverly^ 7 Gray R. 217, and in 
Bigelow v. Cotton^ 13 Ibid 309. In Easex Bank v. 
Vol. xviir — 29 



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226 COURT OF APPEALS OF VIRGINIA. 

1868. Edmonds^ 12 Giay R. 273, a person, not the payee, 
T^mT wrote his name on the back of a negotiable pronais- 
sory note before delivery, the legal imporji of which 
ward, was held to be, that he was liable as promisor, and 
^ Q^^ not as endorser. And it was held, that evidence of a 
FoRt cotemporaneous parol agreement was not admissible 
212 1 to change the character of the liability. Under cer- 
tain circumstances, which appear not to be well denied 
the endorsement of a negotiable note by a person 
other than the payee is regarded in Massachusetts as 
having no fixed and certain legal import, and accord- 
ingly, in such cases, parol evidence is allowed to show 
the actual agreement. Ibid, and cases cited. See 
Rey cfe ah v. Simpson, 22 How. U. S. R. 341. 

In Thompson v. Ketcham.^ 8 John. R. 190, the 
l)romissory note, on which the action was brought, 
specified no time of payment, so that, by legal con- 
struction, and intendment, it was payable immediately. 
It was held, that parol evidence was not admissible 
to contradict this legal intendment by showing that a 
different time of payment was agreed upon. In La 
Farge v. Eiel-ert^ 5 Wend. R. 187, there was a writ- 
ten contract to deliver certain portable articles to the 
plaintiff, but no place of delivery was specified. It 
was held that, by construction of law, the place of 
delivery was the residence of the plaintiff, and that 
evidence was not admissible to prove a cotempora- 
neous agreement fixing a different place of delivery. 
The court said: ''The written contract of th« par- 
ties, therefore, according to the established rules of 
construction, having settled their rights and duties as 
to the place at which these articles were to be de- 
livered, it was improper to admit parol evidence of 
their declarations bofoie or at the time of the giving 
of the receipt, to show that a different place had 



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COURT OF APPEALS OF VIRGINIA. 227 

been agreed upon. The written contraqt was the only 1868. 
legal evidence as to the intentions of the parties up Tenm7 
to the time it was executed. All previous arrange- ^^ 
ments were merged in that. A written contract can- ward, 
not be varied by parol, and where the legal construe- ^ co. 
tion and effect of an instrument are well settled, it is ^ ^• 
varying the instrument to show that the parties intended [213 
something else, as much as it would be to prove that 
the teims used were not in accordance with the pre- 
vious agreement. " The same principle is applied in 
New York to the case of an endorsement in blank. 
And no distinction is made in the cases of what are 
called *' irregular endorsements," (by a person other 
than the payee,) because, according to the late deci- 
sions in that State, these having a certain, definite, 
and precise import. Bank of Albion v. Smithy 27 
Barb. R. 489, and cases citea; Spier v. Gilmore^ 1 
Comst. R 321; Brown v. Curtis^ 2 Ibid 225. 

The same doctrine has been applied to endorsements 
in blank by the courts in other States. Many of the 
cases are collected in 2 Parsons on Notes and Bills 
520. See also Barry v. Moore^ 3 N. Hamp. E. 132; 
Hightouoer v. Ivy^ 2 Portei'sR. 308; Havering. Don- 
nelly 7 Smedes & Marsh. E. 244; Park v. Thomas^ 13 
lb. 11; Ileath v. Van Cott, 9 Wisconsin E. 516. 

The case of Watson v. Hurt^ 6 Gratt. 633, pro- 
ceeded on the same principle. That was the case of 
an endorsement in blank by a person other than the 
payee, which was held to import a guaranty of pay- 
ment, according to the terms of the note on which 
the endorsement was made. It was held, that the 
contract thus imported could not be varied by evidence 
of a cotemporaneous parol agreement that the endorser 
was to be bound on different terms as to the time of 
payment. 



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228 COURT OF APPEALS OF VIEGINIA. 

1868. In Renner v. Bank of Columbia^ 9 Wheat. R. 591, 

Term?^ evidence of a local custom was admitted to explain 

^ , the contract of the eDdorser as to the days of grace. 

ward, And as between an endorser and his immediate endor- 

& Ck)!^ see, it has sometimes been held, that evidence may be 

^' received of a parol agreement, at the time of the en- 

214] dorsement, to dispense with demand or notice. 

Brenfa ex^or "v. Bank of Metropolis^ 1 Peter's E. 89; 

Story Prom. Notes, § 148. 

The case in 9 Wheaton is an application, or was 
understood and intended to be, of a familiar rule in 
reference to mercantile contracts, that they are to be 
construed with reference to known and estabUshed 
usages. The soundness of the other class of cases has 
been questioned. They have been thought to con- 
flict with the principle that the legal import of ^an 
endorsement cannot be varied by parol evidence. 
Stubhs V. GooduU^ 4 Georgia K. 106; Bank of Albion 
V. Smithy 27 Barb. E. 489. But it is not necessary 
for me to express any opinion on this subject. 

I do not think it necessary to examine in detail the 
cases cited by the counsel for the defendant. Some 
of them are undoubtedly inconsistent with the cases 
to which I have referred, and must be considered as 
overruled by them. 

I am of opinion that the judgment should be re- 
versed. 

The other judges concurred in the opinion of 
Joynes^ J. 

The judgment was as follows: 
The court is of opinion, for reasons stated in writ- 
ing and filed with the record, that the said Circuit 



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COUKT OF APPEALS OF VIRGINIA. 229 

Court erred in refusing to give to the jury tne instruc- 1868. 
tion moved by the plaintiffs in error. Therefore it is Tenm7 
considered by the court, that the said judgment be 
reversed and annulled; and that the plaintiffs in error ward^ 
recover against the defendant in error their costs by % ^^ 
them expended in the prosecution of their suit of su- ^^ 
persedeas aforesaid here. And the cause is remanded 
to the; said Circuit Court for a oew trial to be had 
therein, upon which the said instruction shall be given 
to the jury, if it shall be again asked upon a like state [215 
of facts. But this order is to be without prejudice to 
the question whether the defendant Foster is or is not 
liable on his endorsement for more than the amount 
of the bills in Confederate notes, according to the 
value of such notes at the date of the endorsement, as 
stated in said instruction; upon which question it is 
not necessary, in this case, to express an opinion. 

Which is ordered to be certified to said Circuit 
Court. 



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230 COURT OF APPEALS OF VIRGINIA. 



1868. ChARRON & Co. V. BOSWELL <J& (d. 

January 

Term. 
216] February 12. 

1. A fieri facias placed in the hands of an officer for execution is a 

legal lien under ch. 188, § 3 of the Code, upon all the per- 
sonal property and choses in action of the debtor, from the 
time it goes into the hands of the officer, except in the cases 
stated in said section. This lien continues after the return of 
the execution **no effects," and has priority over arabee- 
quent execution lien under the same law ; even though there 
has been a proceeding by suggestion under the junior sooner 
than under the senior execution ; and this though the execu- 
tions issued from different courts.* 

2. An order having been made upon the suggestion under the 

junior execution, directing a chose in action not yet due, to 
be delivered by the garnishee to the sheriff, and directing 
him to collect the amount when due, and after paying off a 
prior claim upon it, to pay the plaintiff his debt out of the 
proceeds ; the creditor in the senior execution may proceed 
by petition filed in the court in which the order was made, 
and in that proceeding, to have the order corrected ; or he 
may file his bill in equity to have it done. 

This was a bill filed in the Circuit Court of the city 
of Kichmond by Bos well & Dorsett against J. B. 
Charron & Co. and others. 

This case involves a contest between execution 
creditors of a common debtor for priority of satisfac- 
tion out of the proceeds of a chose in action of the 
debtor, on which both of the contestants claim a lien 
217] under chapter 188, sec. 3 of the Code, page 7TT. 

* See the statute copied in Judge Moncure's opinion. 



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COURT OF APPEALS OF VIRGINIA. 231 

The appellees Boswell & Dorsett obtained a judgment 1868. 
against the common debtor Winch in the Hustings Term7 

Court of the city of Richmond, on the 4th of April, — 

1866, for $626.94, with interests and costs as therein & Co. 
mentioned, on which they sued out a writ ot fieri fa- Boswell 
cio*, dated the 6th of April, 1866, returnable to the ^ ^^ 
fiist Monday in June following; which was delivered 
to the sergeant of the said city to be executed on the 
7th of April, 1866, and was afterwards returned bj 
him '*no eflFects found." 

The appellants J. B. Charron <& Co. obtained a 
judgment against the same debtor in the Circuit Court 
of the city of Richmond, on the 21st of May, 1866, 
for ^2,340.75, with interests and costs as therein men- 
tioned, on which they sued out a writ oi fi^ri fadass 
dated on the same day, returnable to the first Monday 
in July following; which was delivered to the sheriff 
of said city to be executed, and was afterwards re- 
turned by him ''no effects found." 

On the day of the date of the last mentioned ^ri 
facias^ and no doubt after it had been delivered to 
the sheriff, though the time of such delivery is not 
endorsed on the writ, nor anywhere expressly stated 
in the record, on a suggestion by the appellants that, 
by reason of the lien of their said writ oi fieri faems^ 
there was a liability on W. C. Johnston and Francis 
Johnston, a summons was sued out of the clerk's 
office of the said Circuit Court against said persons to 
answer such suggestion, returnable to the first day of 
the next regular term of the court. On the same day 
on which the summons was sued out, to wit, the 21st 
day of May, 1866, it was executed on the garnishees. 
And at the next term of the court, to wit, on the 22d 
day of July, 1866, the garnishee W. C. Johnston, on 
his examination on oath, disclosed that he and Francis 



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232 COURT OF APPEALS OF VIRGINIA. 

1868. Johnston held a bond executed by J. L. Carrington 
TermT ^^^ A. J. Ford, dated the 16th day of August, 1865, 
^j^ ^ payable to the defendant Winch three years after 
& Co. date, for $4,000, bearing interest from date, and that 
Boswell there was due to them from the said defendant the 
218^^ sum of $2,893. Thereupon the court, on the motion 
of the appellants, and with the assent of the said W. 
C. and F. Johnston, and Harrison, Goddin & Apper- 
son, in whose possession the said bond then was, 
ordered it to be deli\ ered to the sheriff of the city, 
who was required to take possession of the same, col- 
lect the amount thereof when due, and after paying 
thereout to the said Harrison, Goddin & Apperson 
the said sum of $2,893 due to the said W. C. and F. 
Johnston by the gaid Winch, to pay over to the ap- 
pellants the residue in part discharge of the principal 
money, interests and costs recovered by them against 
said Winch ty their judgment aforesaid. 

Afterwards, to wit, in January, 1867, the appellees 
Boswell & Dorsett, the senior judgment creditors of 
Winch, exhibited their bill in the said Circuit Court 
against the said Winch, W. C. and F. Johnston, Har- 
rison, Goddin & Apperson, J. B. Charron & Co. the 
appellants, and Carrington & Ford, in which bill they 
state all the facts in regard to the judgments obtained 
and writs ot fieri facias^ sued out and returned, sug- 
gestion, summons to answer the same, and judgment 
thereon as aforesaid, copies of all which are filed as 
exhibits with the bill; say they are advised that they 
have a prior lien to that of the appellants J. B. Char- 
ion & Co. upon the amount of the said bond by rea- 
son of the priority of their writ otfisri facias afore- 
said; and pi ay that the said order of the Circuit Court 
be rescinded and so far revoked as to permit the pay- 
ment of their said judgment out of the proceeds of the 



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COUBT OF APPEALS OF VIRGINIA. 233 

said bond; that the sheriff of said city be directed, 1868. 
after the payment of the sum of $2,893 to Harri- "^xerm^^ 

son, Goddin & Apperson in satisfaction of the claim 77 

of W. C. and F. Johnston against Winch as aforesaid, & Co. 
to pay to the complainants the amount of their said Boswell 
judgment; that all proper accounts may be ordered; ^r^l'ta 
and for general relief. ^ 

In May, 1867, the appellants filed their answer, in 
which they aver, that the execution upon their judg- 
ment was issued, and the said order of the 2d of July, 
1866, upon their suggestion was obtained, without 
any knowledge or notice whatever on their part of 
the judgment and execution previously obtained and 
issued against Winch by the complainants ; that the 
only information they have on the subject has been 
derived from the statements of the bill since it was 
filed, and they submit that their equities are equal to 
the complainants' in respect to the said residue of the 
said debt, and that by the said order made upon their 
suggestion they have a legal right thereto in part sat- 
isfaction of their said judgment and execution. 

On the 1st of June, 1867, the cause came on to be 
heard on the bill taken for confessed as to ail of the 
defendants except the appellants; and on the answer 
of the appellants with general replication thereto and 
the exhibits filed, on consideration whereof the court 
decreed, that so much of the order made on the 2d 
day of July, 1866, in the proceedings on the garnishee 
process aforesaid, as directed the sheriff of the city of 
Richmond to pay to the appellants the surplus of the 
bond of Carrington & Ford, after payment of the 
debts of W. C. and F. Johnston, be injoined and 
that the sheriff be restrained from executing the same ; 
and further decreed, that the said sheriff should, after 
payment of the said debt of the Johnstons with their 
Vol. XVIII — 30 



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234 COURT OF APPEALS OF VIRGINIA. 

1868. costs in the said proceedings, pay to the appellees 
TeraiT Boswell & Dorsett the amount of their judgment 

■jzr against the said Winch and their costs of suit, and 

& Co. pay the surplus, if any, to the appellants in part of 
Boswell their judgments against the said Winch; and report 
^ ^* his proceedings therein to the court. 

220] From this decree J. B. Charron & Co. applied for 

and obtained an appeal to this court. 

Roberts and N, Howard^, for the appellants. 
Johnston & WUliamSy for the appellees. 

MoNcuRE, P., alter stating the case, proceeded: 

The question we have to decide on this appeal is, 
which of the contesting claimants are entitled to pri- 
ority, the senior or the junior execution creditors. 

In the first place, I think a court of equity has ju- 
risdiction of the case. The controversy might, no 
doubt, have been raised and decided in the suggestion 
proceeding, upon a petition filed by the senior execu- 
tion creditors, even after the order of the second day 
of July, 1866, was made. But the subject can as 
well, if not better, be disposed of in a chancery pro- 
ceeding, such as was instituted in this case, making 
all persons concerned parties to the suit, and having 
the rights of all adjusted and determined. The cases 
of Erslcine v. StaUy^ 12 Leigh 406, and Moore ^ <£c., 
V. Holt^ 10 Gratt. 284, afford ample authority, if any 
were wanting, of the jurisdiction of equity in sucn a 
case. But the jurisdiction was admitted by the coun- 
sel for the appellants, or one of them at least, in the 
course of the argument. 

I am also of opinion, that there is no good ground 
of objection to the form of the bill which is substan- 
tially sufficient, ard that the sheriff was not a neces- 



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COUKT OF APPEALS OF TIKGINIA. 235 

9ary party ; though he might have been made a de- 1868. 
fendant, and it might have been prudent, to have Tenm7 
made him such. The decree appealed from is merely "^r 
interlocutory, and he may be made a party, if neces- & Co. 
sary, after the cause is remanded. The sheriff seems BoJwell 
not to have been a party in Erskine v. Staley ; nor ^ ^• 
does it appear that the receiver who held the fund [221 
which -was in controversy in Moore v. Holt^ was a 
party in that case. 

Both of the contestants claim a lien upon the fund 
in controversy under the same law, to wit, section 3 of 
chapter 188 of the Code. Without the right which 
that law gives, neither of them have any claim to the 
fund. It was a chose in action of the common debtor, 
which could not be levied on under chapter 187 of the 
Code. Before the Code of 1849 such an interest could 
have been reached only by suing out a ca. sa, and 
compelling the debtor to take the oath of insolvency. 
But by the second section of chapter 188 of that Code 
the writ of ca. sa. was abolished, (with some excep- 
tions not affecting this case,) and the next succeeding 
section provided what was designed, in part at least, 
as a substitute for the remedy which had been afforded 
by the abolished writ. That section is in these 
words: 

'* § 3. Every writ of fieri facias hereafter issued 
shall, in addition to the effect which it has under 
chapter 187, be a lien from the time that it is deliv- 
ered to a sheriff or other officer to be executed, upon 
all the personal estate of, or to which the judgment 
debtor is possessed or entitled, (although not levied 
en, nor capable of being levied on, under that chap- 
ter,) except in the case of a husband or parent, such 
things as are exempt from distress or levy by the 33d 
and 34:th sections of chapter 49, and except that as 



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236 COURT OF APPEALS OF VIRGINIA. 

1868. against an assignee of any such estate for valuable 
Teim!^ consideration, or a person making a payment to the 

~ judgment debtor, the lien by virtue of this section 

& Co. shall be valid only from the time that he has no- 

Boswell ^ice thereof. This section shall not impair a lien 

*^ ^^' acquired by an execution creditor under chapter 187." 

It seems to me that there ought to be no doubt as 

to the true meaning of the Legislature in the section 

just quoted. It expressly declares that every JjWi fa- 

222] eias thereafter issued shall be a lien^ from the time that 
it is delivered to the officer to be executed, upon all the 
personal estate, &c., exapt^ &c. N^ow here is an ex- 
press legal lien, given to the execution creditor, upon 
all the debtor's personal estate; and if there had been 
no exception expressed in the law, this lien would 
have been good even against an assignee for value and 
without notice. It follows that the lien is good 
against everybody who cannot bring himself within 
one of the exceptions enumerated in the section; that 
is, he must show: 1. That lie is a husband or parent, 
and that the things on which the lien is claimed are 
such as are exempt from distress or levy by the 33d 
and 34rth sections of chapter 49; or, 2. That he is an 
assignee of the subject for valuable consideration, and 
without notice; or 3. If the subject on which the lien 
is claimed be a debt due by him to the defendant in 
the execution, that he paid the debt without notice of 
the lien; or, 4. That he has himself acquired a lien 
on the subject as an execution creditor, under chapter 
187. These are all the exceptions enumerated in the 
statute, and it is out of the power and province of the 
court to supply any other. If none had been there, 
the court could have made none; and it can no more 
add to what are there. Be the law wise or unwise, 
it is enough for us to say, lia Ux scripta est. 



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COURT OF APPEALS OF VIRGINIA. 237 

The appellants do not bring themselves within any 1868. 

of the exceptions, and are entitled only to the lien xerm!^ 

which the third section ffives them. But as the lien 7;;^ 

° Charron 

of the appellees, given by the same section, is piior <fe Co. 
in time^ so it must be prior in right. It is not pre- Boswell 
tended that there was any fraud, or collusion, or even ^ ^^• 
negligence, on the part of the appellees. It is not 
pretended that the whole amount of their judgment is 
not justly due. Immediately after obtaining their 
judgment they sued out execution thereon, which w^as 
lettuned "no effects;" and in little more than a month 
after the date of that execution, and while it was in [223 
full force in the hands of the sergeant, the appellants, 
who in ihe n.eantime had obtained their judgment, 
sued out execution thereon, and on the same day filed 
their suggesticn. They were more fortunate, it 
seems, than the appellees in finding out a debt due to 
the common debtor, and promptly proceeded to sub- 
ject it to the lien of their execution. So far as their 
debtor had property in it when the operaticn of their 
lien commenced, they had a right to subject it. But 
it was subject at that time to the prior lien of the ap- 
pellees; and to the extent to which it would be re- 
quired for the satisfaction of that prior lien, the 
property did not belong to the common debtor, and 
was not subject to the junior lien of the appellants. 

The appellants, aware of the importance, if not 
necessity, of bringing themselves within one of the 
exceptions enumerated in the third section, made an 
effort to show that they are assignees for valuable 
consideration, and without notice. But the effort, 
though ingenious, was unsuccessful. Such an assign- 
ment could only be made by the common debtor, and 
there was no semblance of any assignment by him. 
The garnishees had no right to make an assignment 



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238 COURT OF APPEALS OF VIBGINIA. 

1868. for him, and they did not undertake to do so. They 

Term7 ^^7 consented that the couit, in the enforcement of 

~zr the appellants' supposed execution lien, should put 

& Co. the bond in the hands of its officer for collection, in 

Boswell ord^r that the proceeds, when collected, might be ap- 

^ ^' plied, first to the payment of their claim, and then to 

the part payment of the appellants' judgment, which 

was at that time supposed to be the only other lien 

upon the fund. 

But the appellants' insist that, by their proceed- 
ings on the suggestion, they acquired a specific lien on 
the fund in controversy, which entitles them to a pre- 
ference over what they call the general lien of the ap- 
pellees. 

Now this view is wholly inconsistent with the pur- 
pose and effect of the proceedings on the suggestion. 
224] Those proceedings do not give any lien at all, gene- 
ral or specific. They are merely a means provided 
by law for the enforcement of a legal lien whish al- 
ready exists. '*0n a suggestion by the judgment 
creditor, that hy reason of the lien of his writ fieri fa- 
cias there is a liahility on any person other than the 
judgment dehtar^'*^ &c. These are the words of the 
11th section of chapter 188, which gives the remedy. 
The only liability then which there is to be enforced 
by this proceeding is, a liability arising under section 
three of the same chapter. And as in this case, there 
was a prior liability by reason of the lien of the ap- 
pellees' writ oi fieri facias the proceedings by sugges- 
tion instituted by the appellants could only be in sub- 
ordination to that prior lien. 

These proceedings by suggestion are likened by the 
counsel of the appellants, in their argument, to the 
case where two writs oi fi^ri facias ^ in favor of several 
plaintiffs against the same defendant, come to the 



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COURT OF APPEALS OF VIKGINIA. 239* 

hands of different oflRcers at different times for execu- 1868. 
tion, and the one last coming to hand is first served; Tem7 
in which case, it seems, the service is good, upon the ^^^^ ^ 
principle declared by Lord Ellenborough in Payne v. & Co. 
Drewe, 4 East. 523, 545, **that where there are seve- Boswell 
ral authorities, equally competent to bind the goods ^ ^• 
of the party when executed by the proper officer, that 
they shall be considered as effectually and for all pur- 
poses bound by the authority which first actually at- 
taches upon them in point of execution, and under 
which an execution shall have been first executed." 
And in support of Ihis view several other cases were 
cited, viz.: Tabh v. Harris^ 4 Bibb's K. 29; Kilby v. 
Hoggin^ 3 J. J. Mar. R. 208; Million v. Common- 
wealthy 1 B. Mon. R. 310; Bourne v. Ilacher^ 11 Id. 
23. The counsel argue that a suggestion under the 
statute in regard to a chose in action is analogous to 
the levy of an execution on tangible goods, and ought 
to have the same effect in giving priority to a junior [225 
over a senior execution. But the analogy does not 
hold good. The principle announced in Payne v. 
Drewe^ so far as it applies to a writ of fieri facias^ 
depends entirely upon the peculiar nature of the lien 
of that writ as it existed at common law or under the 
statute of 29 Charles 2, ch. 3, § 16. 

Such lien was conditional only, and if not consum- 
mated by an actual levy before the return day of the 
writ, it altogether ceased to exist. It was so imper- 
fect without such levy that a creditor might withdraw 
his execution against his principal debtor from the 
hands of the officers without impairing the liability of 
a surety for a debt. Humphrey v. Flitt^ 6 Gratt. 
509, and the cases therein cited. It was a mere le- 
sult of the capacity to levy the execution. This lien 
is very different frcm that which is given by section 



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240 COURT OF APPEALS OF VIRGINIA. 

1868. 3 of chapter 188 of the Code. That is an express 

January ^ ^ 

Term, legal lien, not conditional, but absolute; not limited 
Charron" ^^ ^^® ^™® during which the execution has to run, 
^ ^' but continuing until the right of the judgment credi- 
Boswell tor to levy a new execution on his judgment ceases, 
or is suspended by a forthcoming bond being given 
and forfeited, or by a supersedeas or other legal pro- 
cess. 

It is in its nature more like ^ the lien for which, in 
part, it was intended as a substitute, and which a cre- 
ditor formerly acquired when his debtor took the oath 
of insolvency. All the estate of the del: tor, whether 
named in his schedule or not, or wherever situate, 
was vested by law in the sheriff, for the benefit of the 
creditor; and this title was good, even against an as- 
signee for value and without notice. The lien given 
by the 3d section of chapter 188 extends only to per- 
sonal estate, (the judgment being a lien from its date 
on all the real estate of the debtor under chapter 186,) 
is subject to certain exceptions engrafted upon it to 
avoid inconveniences which would OIiher\^ ise have re- 
226] suited from the lien. But to that extent, and subject 
to those exceptions, it is as perfect and operative dur- 
ing its existence as was the lien to which it was, in 
part, a substitute. 

The counsel for the appellants refer to the case of 
Foreman v. Ijoyd^ cfec, 2 Leigh 284, as tending to 
sustain their view, but I do not tbink it can have that 
effect. In that case seveial creditors had recovered 
judgments against N, and sued out writs of ca, sa,, 
upon which he was taken and charged in execution; 
then F recovered judgment against the same debtor, 
and sued out an elegit^ on which his lands were ex- 
tended, and a moiety delivered to F; and then the 
debtor was regularly discharged from custody under 



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COUBT OF APPEALS OF VIRGINIA. 241 

the writs of ca. sa.y as an insolvent debtor, putting in 1868. 

his schedule the whole of the lands which had been xeim^ 

extended under F's elegit. It was held, that the liens "77 

- , . - , . Charron 

of the writs of ca. sa. executed, given by the statute 1 & Co. 

Ee\. Code of 1819, ch. 134, § 10, did not overreach Boewell 
and avoid the extent under F's elegit. The question ^ ^• 
had been diflferently decided in Jackson v. HeiskeU^ 
1 Leigh 257, which was heard, on full and able argu- 
ment by Messrs. Leigh and Johnson on opposite sides, 
before a court of three judges, consisting of Cabell, 
Green and Carr, whose decision was unanimous. 
Afterwards, the question was reconsidered in a full 
court, on the same argument, and decided otherwise in 
Foreman v. Loyd^ <j6c., as before stated. Judge Cabell 
changed his opinion, and concurred with Judges Brooke 
and Coalter in deciding that case. Judges Green and 
Can adhered to their former opinions. Judge Carr, 
in reafBrming his opinion, made these remarks, which 
are appropriate to the present occasion: ^^ The law, 
however harsh, however unwise, is, to my understand- 
ing, expressed in terms too plain to be changed by 
construction, or judicial action in any form." I do 
not mean to say that, in my opinion, the question was 
not correctly decided in Forema/n v. Loyd^ (&c.; and 
at aU events that case settled the law. But certainly r227 
the question decided in that case (as to the true construc- 
tion of the 10th section of chapter 134 of the Code of 
1819) was very different from the one involved in this, 
and that case can, therefore, afford no support to the 
view of the appellants. 

I tliink the case of Puryear v. Taylor^ 12 Gratt. 
401, is decisive of this case; and I would have con- 
sidered it as scarcely necessary to do more than refer 
to it to sustain the decree of the court below, but for 
the fact that the correctness of that decision was as- 
VoL. xviii — 31 



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242 COURT OF APPEALS OF VIRGINIA. 

1868. sailed in the argument of the learned counsel for the 
TermT appellants. In that case it was held by all the judges 

— present, (Allen, P. alone being absent,) first, that u, 

& Co. Jieri facias is a lien from the time it goes into the 
Boswell ^a^ids ^f ^^^ officer to be executed, upon all the per- 
^ al- sonal estate of the debtor, including debts due to him, 
with the exception stated in the statute; and this lien 
continues after the return day of the execution ; and 
only erases when the right to levy the execution, or to 
levy a new execution upon the judgment, ceases or is 
suspended by a forthcoming bond being given and for- 
feited, or by a supersedeas or other legal process. See 
Code ch. 188, §§ 3 and 4. And, secondly, that the 
lien of a Jle7*i facias of prior date has priority over an 
attachment of subsequent date. The counsel for the 
appellants seem to admit the correctness of the first 
branch of this decision, that is as to the continuing 
nature of this lien of the fieri facias after the return 
day; and at all events admit that that question was 
fully argued by counsel and considered by the court 
in the case, and therefore that the decision, to that 
extent, ought to be regarded as a binding authority. 
But they insist, that the question secondly decided, to 
wit, as to the priority of the lien of z,fi.fa. of prior 
date over an attachment of subsequent date, received 
little or no notice in the argument of counsel, or in the 
opinion of Judge Samuels, which was concurred in by 
228] the rest of the court; that it was brroneously decided; 
and that the decision, therefore, ought not to affect 
this case. The question was expressly noticed, both 
in the argument of the case and in the opinion which 
was delivered. The argument, I suppose, was not 
very fully reported; but Mr. Patton, for the appel- 
lant, is reported to have said on this question : '* There 
is certainly no reason, in justice or sound policy, why 



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COURT OF APPEALS OF VIRGINIA. 243 

the lien of an attachment should be preferred to the 1868. 
lien of an execution. The attaching creditor is not an Teim7 

assignee for value. There are good reasons why such ~ 

an assignee, without notice, should be protected; and & Co. 
the act protects him. And indeed the act expressly Boswell 
protects all those who have any right to protection. ^ *^- 
The attaching creditor has none.'' There is no ex- 
press notice of this question in the reported argument 
of Messers. Rhodes & Macfarland for the appellee; 
but from their reference to the case of Payne v. Drewe^ 
I would infer that they did, in fact, notice it. We 
cannot suppose that they overlooked the question, 
though they may have considered that there was no 
good ground for contesting it, especially if they should 
be wrong in their view that the new lien given by the 
statute to the Ji. fa. was not '*a continuing, indefinite 
lien/- In the opinion delivered hy Judge Samuels, 
the conflicting liens of the JieH facias and attachment 
are compared, and preference accorded to the former. 
'^These liens," says the Judge, '*are Jo^A given by 
statute, and are merely legal. It is perfectly obvious 
that Puryear's lien, being first in point of time, must 
take the precedence of Taylor's." I think that the 
question was not only argued and considered in that 
case, but that the decision is correct, as well upon that 
question as upon the other. In the case of Evan* a 
trustee \. Greenhow^ <&t\^ 15 Gratt. 153, in which the 
court again had occasion to consider the subject of this 
execution lien, all the judges were present, including 
the president, aod all concurred in the opinion therein 
delivered. 

Considering it, then, as res adjiidieata^ and rightly [229 
so, that this execution lien is a legal lien which con- 
tinues after the return day of the execution, and has 
priority over an attachment subsequently levied, it 



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244 OOFKT OF APPEALS OF VIBQINIA. 

1868. seems to follow, as a necessary consequence, that it 
^rm7 ^^ priority over a subsequent execution lien under the 

"jlT same law, e\en though there has been a proceeding 

& Co. by suggestion under the junior sooner than under the 
Boewell senior execution. 

^ *^* I have examined the cases cited by the counself or the 
appellants from the English reports, in legard to the 
statutes of Victoria subjecting choses in action to lia- 
bility under execution and providing means for enforc- 
ing such liability ; but I do not think they have any 
material bearing upon this case, involving as they do 
the construction of laws wholly different in their terms 
from that we now have under consideration. Those 
cases are Watts <& wife v. Porter^ 77 Eng. C. L. R. 
743; Holmes v. Tutton^ 85 Id. 65; Hirsh v. Coates^ 
86 Id. 757 ; Turner v. Jones^ 1 Hurlst. & Norm. R. 
878. 

The cotmsel also referred us to several articles pub- 
lished in the ^'Quarterly Law Journal" for 1857 and 
1858, in regard to the chapters of the Code concern- 
ing executions and the decision of this court in Puryear 
V. Taylor. One of these articles is attributed, and 
no doubt correctly, to one of the re'visors, the late 
lanaented Mr. Patton, suid as might well be expected 
from the great learning and ability of that distinguished 
gentleman, and from his active participation in fram- 
ing the Code, his article sheds much light on the sub- 
ject. It is to be found in the '* Quarterly Law Jour- 
nal" for 1858, pp. 1-14. 

In conclusion, it may not be out of place to remark, 
that while the law we have been construing has been 
the subject of violent attack and of much conflict of 
opinion, it does not devolve on us to vindicate its wis- 
dom and policy, but only to construe it and give it 

230] effect. It may be said, however, that when in 1849 



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OOUBT OF APPEALS OF VIKGnOA. 245 

the revisors, in obedience to the demand of public 1868. 
opinion, proposed to abolish imprisonment for debt, ^^^^ 

and to provide ample means in lieu thereof, for sub- — 

jectiDg the debtor's whole estate to execution, they & Co. 
undertook a work of very great difficulty ; and it was BosweU 
naturally to be expected that there would, of necessity, ^ al- 
be defects in their work which would require amend- 
ment. It is the business of the Legislature to amend 
these defects as they are developed by time and ex- 
perience. It is a significant fact, however, that though 
this great change in the law was made in 1849, and 
has since been the subject of such violent attack and 
of so much discussion, it has not yet been amended by 
the Legislature in any material respect. 

Upon the whole, I am of opinion to affirm the de- 
cree of the Circuit Court. 

The other judges concurred in the opinion of Mon- 
curej P. 

Decbee affirmed. 



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246 COURT OF APPEALS OF VIRGINIA. 



Richmond. 

1868. Mettert's adrn?r v. Hag an. 

January 
Term. 
231 1 February 18. 

M, in his lifetime, conveyed by deed to H, M's interest in the 
estate of J deceased, upon the consideration, as expressed in 
the deed, of |1,000. After the death of M, H files his bill 
to recover the said interest ; and M*s administrator resists it, 
on the ground that M was incapable from drink of making 
a contract, and that the deed was obtained by the frand of 
H, and that H gave no consideration for it. The evidence 
touching M's competency being contradictory, and there 
being some proof that M had confirmed the deed after its 
execution. Held : 

1. An issue should be directed to ascertain : Ist Whether 

the deed had been procured by fraud ; and, 2d. If pro- 
cured by fraud, whether it had afterwards been con- 
firmed by M, without coercion or restraint, when he 
was competent to act. 

2. If it had not been procured by fraud, or if it had been 

confirmed by M without coercion and when he was com- 
petent, H is entitled to a decree for M's interest in the 
estate of J, without regard to the value of the consider- 
ation paid therefor. 

3. Though according to the strict rules of pleading, a bill or 

cross-bill should have been filed to set aside the deed, 
yet the answer of M's administrator may, for that pur- 
pose, be treated as a cross-bill, so as to enable the court 
to do ample justice in the cause. 

In August, 1866, John Hagan filed his bill in the 
Circuit Court of the city of Eichmond against the ad- 
ministrator of George W. Mettert deceased, and others, 
232] in which he stated, that in July, 1869, George V. 



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COURT OF APPEALS OF VIRGINIA. 247 

Metteit, by deed which was exhibited with the bill, 1868. 
conveyod to the plaintiff his interest in the estate of xermT 

Dr. John H. Mettert deceased. That this estate had TTTTZT 

Mettert 8 

been sold and invested under the discretion of the adm'r 
court in two suits pending therein. And he asked Ha^. 
that the share of said estate to which George W. 
Mettert was entitled as heir and aistributee of Dr. 
Mettert might be decreed to him. The deed purports 
to convey the interest of G. W. Mettert in the estate 
of Dr. J. H. Mettert, in consideration of $1,000. 

George W. Mettert' s administrator answered the 
bill. He charged that the deed from his intestate to 
the plaintiff had been procured by the fraud of the 
plaintiff. That Mettert was at the time of making 
the deed, and had been for years previous, and con- 
tinued up to the time of his death, from excessive in- 
temperance, incapable of making a valid contract; 
that his intellect, naturally weak, had been so im- 
paired by his excesses as that he was little better than 
a drivelling idiot. That Hagan had taken advantage 
of his condition ; had induced him to stay at his house, 
and had there plied him with liquor until he obtained 
the said deed from him. That Hagan never gave any 
consideration for the deed, which conveyed an interest 
worth at the time near $6,000 ; and though it had been 
impaired by the war, was still worth upwards of 
$3,000. The defendant therefore asks, that the deed 
may be declared null and void, for the fraud in its 
procurement and the incapacity of the grantor to 
transact business; and that the interest of G. W. Met- 
tert in the estate of J. H. Mettert may be decreed to 
the defendant. 

A number of witnesses were examined, both by the 
plaintiff and the defendant, as to the condition of 
George W. Mettert about the time of the contract. 



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248 COURT OF APPEALS OF TIKOINIA. 

1868. Some of these witnesses stated he never was sober 
Tem7 a^ut that time, and for some time previous, and that 
-J , he had not capacity to transact business. Others said 
adm'r that he was sometimes sober, and was able to contract. 
Ha^. There was some proof of his staying at Hagan's house 
23a J for a time in the year 1859. 

The cause came on to be heard on the 3d of May, 
1867, when the court expressed the opinion, that the 
defence set up in the answer was not sustained by the 
proofs, and decreed that the interest of George W. 
Mottert in the estate of John H. Mettert should be 
paid to Hagan. From this decree, George W. Met- 
tert' s administrator applied to this court for an appeal, 
which was allowed. 

Johnson <& Guigon^ for the appellant. 

iT. Howard and Roberts^ for the appellees. 

JoYNES, J. delivered the opinion of the court : 

The court is of opinion, that the said Circuit Court 
erred in rendering a decree in favor of the appellee 
Hagan, without first causing issues to be tiied by a 
jury as hereinafter directed. Therefore it is decreed 
and ordered, that tbe said decree be reversed and an- 
nulled, and that the appellee Hagan pay to the appel- 
lant his costs by him expended in the prosecution of 
his appeal aforesaid here. 

And this court proceeding to pronounce such decree 
as the said Circuit Court ought to ha\e pronounced, 
it is further decreed and ordered, that a jury be em- 
panelled at the bar of the said Circuit Court, on the 
chancery side thereof, to try the following issues : 

1. Whether the deed in the proceedings mentioned 
from George W. Mettert to John Hagan was or was 
not obtained by fraud. 



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OOUKT OF APPEALS OF VIRGINIA. 249" 

2. Whether, in case the said deed was so obtained 1868. 
by fraud, the same was subsequently confirmed by the xeraL^ 
said Mettert by his answer to the bill of Mrs. Kyle, ^ , 
or otherwise, the said Mettert intending thereby to adm'r 
latify and give effect to the said deed, being fully Hagan. 
aware of his right to avoid the same, and competent ['^^4: 
to bind himself, and free from all coercion, restraint 

or undue influence. 

3. In case the said deed was so obtained by fraud, 
and was not so subsequently confirmed, what was the 
value in money of the consideration, if any, paid or 
delivered by the said Hagan to the said Mettert for 
the interest of said Mettert conveyed by said deed. 
Upon the trial of which issues the said Hagan shall 
be entitled to open and conclude. 

And the court is of opinion, that if it shall be ascer- 
tained that the said deed was not obtained by fraud; 
or, having been obtained by fraud, was subsequently 
confirmed as aforesaid, then the same should be held 
valid without regard to the value of the consideration 
paid or delivered therefor. 

And the court is further of opinion, that though, ac- 
cording to the strict rules of pleading, the said deed 
could not be annulled and set aside without a bill or 
cross-bill filed for that purpose by said Mettert' s ad- 
ministrator, the ansvver of said Mettert's administra- 
tor, may, for that purpose, be treated as a cross-bill, 
so as to enable the court to do complete justice in this 
cause; and that if it shall be ascertained that the said 
deed was obtained by fraud, and -was not subsequently 
confirmed as aforesaid, the same should be set aside 
and annulled, upon the payment to the said Hagan of 
the value of the consideration paid or delivered there- 
for by him, with interest thereon, for the re-payment 
whereof the said deed should be held as a security. 

Vol. xvin— 32 



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250 conrr of appeals of Virginia. 

1868. And the cause is remanded to the said Circuit Court 
Tem7 ^or further proceedings to be had therein in conformity 
T7~~~7 with the foregoing opinion and decree. Which is or- 
adm'r dered to be certified, &c. 

V. 

Hagan. 

Decree reversed. 



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COURT OF APPEALS OF VIROINIA. 251 



Ballard cfe als. v, Whitlock. 1868. 

January 
Tenn. 
February 18. [235 

1. A forthcoming bond, with condition to deliver property taken 

in execution, on a day of sale occurring after the return day, 
is valid. 

2. A judgment and award of execution upon a forfeited forthcom- 

ing bond, having been entered by default, upon a day prior 
to that to which notice was given, the court in which the 
judgment and award of execution was rendered has jurisdic- 
tion on the motion of the plaintiff to set aside the judgment 
and quash the execution, upon reasonable notice to the de- 
fendants. Code, ch. 181, § 5 : ch. 187, § 23. 

8. The plaintiff having given a second notice to the obligors in 
the forthcoming bond, for a judgment and award of execu- 
tion thereon, and they appearing and objecting to the render- 
ing of the judgment and award of execution asked, the court 
may at the same time quash the first judgment and execu- 
tion, and render another judgment and award of execution 
on the bond. And the obligors being present by their coun- 
sel, they had reasonable notice of the motion to quash. 

4. When a judgment is set aside, the execution which has issued 
upon it falls with it, without any express order to quash the 
execution. 



A forthcoming bond given by John P. Ballard as 
principal, and Thos. E. Ballard and J. B. Watkins as 
sureties, on an execution which issued from the clerk's 
oflSce of the Circuit Court of the city of Richmond, in 
the name of Charles E. Whitlock against the said John 
P. Ballard, ha^^ing been forfeited, notice that a motion 
would be made on the 3d day of July, 1867, for a [236 



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252 OOUKT OF APPEALS OF VIBGINIA. 

1868. judgment and award of execution on the bond, was 
TerrnT Served on two of the obligors, J. P. Ballard and J. 
B. Watkins. By a singular mistake, judgment was 
& als. rendered on the forthcoming bond against these two 
Whitiock obligors on the ^firMt instead of the third day of July, 
18G7; it being stated in the judgment that the plain- 
tiff came by his attorneys, and it appearing by the re- 
turn of the sheriff, that the defendants, John P. Bal- 
lard and Joel B. "A^atkins, had had legal notice of the 
motion, they were solemnly called but came not; and 
so the judgment was entered by default. On the 3d 
of July, 18^)7, on the motion of the plaintiff and for 
reasons appearing to the court, it was ordered that an 
execution be awarded forthwith on the said judgment 
rendered on the 1st day of the same month. After- 
wards, to wit : on the 11th day of the same month, 
the plaintiff, having discovered his mistake in obtain- 
ing judgment on the 1st instead of the 3d of the month 
as aforesaid, issued a new notice that a motion would 
be made on the 1st day of August, 18()7, for a judg- 
ment and award of execution on the said bond, which 
notice was served on aU three defendants. On the day 
named in the notice, an order was mad^ setting aside 
the former judgment entered on the 1st day of July 
as aforesaid, and quashing the execution issued there- 
on; and a judgment was rendered on the bond against 
all three of the obligors. These proceedings of the 1st 
day of August, 18G7, appear upon the record as fol- 
lows : ** And now at this day, to wit,'' &c. ''Charles 
E. Whitiock, plaintiff, against John P. Ballard and 
Joel B. Watkins. defendants. Motion on a bond taken 
for the forthcoming and delivery of property, on the 
day and at the place of sale. This day came the 
parties by their attorneys, and for reasons appearing 
to the court, it is ordered that the judgment entered 



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COURT OF APPEALS OF VIKOINIA. 253 

heiein on the 1st day of July last, at the present term 1868. 

of this court, be set aside, the same having been irregu- xermT 

Jarly entered; and it is further ordered that the exe- „ „ ^ 
•^ ' Ballard 

cation issued on said judgment be quashed. & als. 

*'And at the same day, to wit," &c. '*Chas. E. whrtlock 
Whitlcck, plaintiff, against John P. Ballard, Thomas [i^37 
E. Ballard and Joel B. Watkins, defendants. Motion 
on a bond taken for the forthcoming and delivery of 
property, on the day and at the place of sale. This 
day came again the parties by their attorneys, and it 
appearing by the return of the sheriff, that the defen- 
dants have had legal notice of this motion, they were 
solemnly called. Whereupon it is considered by the 
court that the plaintiff recover against the defen- 
dants," &c. ^^Merno. To an opinion of the court 
this day given against the defendants, they by their 
counsel excepts, and leave is given them until the 
10th day of August, 1867, to file their bill of excep- 
tions thereto." 

Accordingly, on that day a bill of exceptions was 
tendered by the defendants, and signed and sealed by 
the court, which states in effect that the plaintiff 
moved the court for a judgment on the bond, and 
thereupon offered in evidence the bond (being the same 
on which the court entered judgment against the said 
J. P. Ballard and J. B. Watkins on the 1st day of 
July, 1867, which judgment was set aside by the court 
on the 1st day of August, 1867), the execution on 
which the bond was taken, and the notices both to 
the 3d of July and the 1st of August, 1867, with the 
endorsements thereon, which execution, notices and 
endorsements are inserted in the record; and moved 
the court to enter the order setting aside the judgment 
rendered on the 1st day of July, 1867, and quashing 
the execution issued thereon as aforesaid, which mo- 



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254: COURT OF APPEALS OF VIRGINIA. 

1868. tion the defendants, J. P. Ballard and J. B. Watkins, 
TermT ^7 ^^^^^ counsel, objected to; but the court overruled 
the objection and entered the said order, and rendered 
&al8. judgment on the bond, according to the motion of the 
Whitlock plaintiff. Tc which opinion of th^ court the defen- 
238 1 dants, Ballard and Wat kins, by their counsel, ex- 
cepted. 

To the judgment rendered on the 1st day of August, 
1867, the defendants applied for and obtained a ^rit 
of supersedeas. 

Lyons^ for the appellants. 

Macfarland and N. P. Howard and Roberts^ for 
the appellee. 

MoNcuRE, P., after stating the case, proceeded as 
follows : Four errors are assigned in the judgment, 
but as the last two are in effect but repetitions of the 
first and second respectively, or at all events may be 
disposed of in disposing of them, the latter only need 
be noticed. They are : 

1st. The execution upon the first judgment expired 
before the day named in the bond for the delivery of 
the property; the sheriff, therefore, could not legally 
receive it on that day, and the bond was consequently 
void, and no judgment could legally be rendered upon 
it. 

2dly. The court, having rendered one judgment 
upon the bond, could not set aside that judgment with- 
out notice to the defendants, Dor could it quash the 
execution without such notice. 

In regard to the first error assigned, it will not be 
necessary to say much. The sheriff could legally re- 
ceive the property on the day of sale named in the 
forthcoming bond, though that day was after the re- 



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COURT OF APPEALS OF VIRGINIA. 255 

turn day of the execution, and the bond was not, there- 1868. 
fore, void. The execution of a writ of fieri facias is 5?rm7 
an entire thing, and having been commenced but not ^^ , 
completed by the sheriff to whom it is directed before & als. 
the return day, it is his duty to complete the execu- whitlock 
tion afterwards. 1 Rob. Pr. old ed. 529, 530, 532; 
Dix V. Evans, 3 Munf. 308; WJieaton v. Sexton's [239 
lessee, 4 Wheat. E. 503; 2 Tuck. Com. 362, 370. 
He may sell after the return day ot the writ, even 
after he is out of oflBce, and without a writ of vendi- 
tioni exponas. Sewell on Sheriff 253, and cases cited 
in note (x) ; 46 Law Library 1 94. The writ commands 
him to cause the money therein mentioned to be made 
of the goods and chattels of the defendant. It is his 
duty, if the money be not paid, to levy the writ on 
the goods and chattels of the defendant, or so much 
thereof as may be necessary, and sell them for its 
satisfaction. He cannot levy the writ after the return 
day, but he may do so at any time on or before that 
day after it comes to his hands for execution. Code 
eh. 170, § 2, p. 706. It often happens that, after 
making a levy, he has not time to make a sale before 
the return day. No such sale can be made without 
at least ten days previous notice. Code ch. 49, § 37, 
p. 286. And if the goods and chattels levied on be 
slaves, mules, work-oxen or horses, they are required 
by the next section (38, p. 287,) to be sold at the 
courthouse of the county or corporation, and on the 
first day of the term of the court thereof next succeed- 
ing that at which they may be advertised, except where 
the parties shall, at or before the time for advertising 
the same, in writing, authorize the oflBcer to dispense 
with the provisions of this section ; in which case the 
sale shall be according to the preceding section. Thus 
the day of sale may be a month or more after the re- 



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"256 COUBT OF APPEALS OF VIRGINIA. 

1868. turn day of the writ. And if the defendant give a 

Tem7 forthcoming bond, as he generally may, nndei the 

g^^ , Code ch. 189, § 1, p. 780, the condition of it is for 

& ale. the forthcoming of the property at the day and place 

ivhitlock ^f 8^65 whether that day be befoie or after the return 
day of the writ. In either case, he has a light to per- 
form the condition of his bond by having the property 
forthcoming accordingly, and the sheriff is bound to 
receive it. 

In regard to the second error assigned. The first 

:24r0] judgment rendered on the forthcoming bond was 
clearly erroneous, having been rendered before the day 
named in the notice, without the consent of the defen- 
dants, or any appearance by or for them. They might 
have had it reversed by a proceeding in error com- 
menced at any time within the term of limitation pre- 
scribed by law in such cases. As they had that right, 
and might avail themselves of it, the plaintiff ooold 
not rely upon the judgment, though apparently m hii 
favor, unless the defendants would release all errors 
in it, in which case the plaintiff would have no caose 
to complain of it, and would of course be satisfied. 
The defendants did not release such errors, and the 
plaintiff had no reason to believe that they would do 
so. He was, therefore, aggrieved by the judgment 
which stood in his way ; and he had a right to have 
it set aside and removed out of his way by a proceed- 
ing in error instituted by himself. The judgment 
being by default, the court which rendered it had 
jurisdiction to set it aside, and to do so on motion, 
under the Code ch. 181, § 5. If the judgment was 
properly set aside, the execution thereon of course fell 
with it, and would have so fallen without an expr^s 
order to quash the execution. Of course the court 
might make such an order, and the Code ch. 187, § 



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OOTTKT OF APPEALS OF VIRGINIA. 267 

23, p. 776, expressly affirms the right of the court on 1868. 
motion to do so, if such affirmation were necessary. t^?^ 

The court, therefore, had jurisdiction to make the ^ .. 
order of the 1st day of August, 1867, setting aside the & als. 
said judgment and quashing the execution thereon, whuiock 
To be sure the statute requires notice to be given to 
the adverse party, as well in a proceeding to reverse a 
judgment under ch.l81,§6, as in a proceeding to 
quash an execution under ch. 187, § 23; but the notice 
required in either case is reasonable notice only, and 
not notice for a certain period of tiftie. It appears, 
in this case, that the defendants had notice of the mo- 
tion to set aside the judgment and quash the execution, [241 
having appeared by their attorney upon that motion; 
and it does not app^^r that it was not reasonable no- 
tice, nor that any objection was made to it because it 
was not reasonable, or on any other ground. Had 
it been objected to because it was not reasonable, 
doubtless an opportunity would have been afforded 
the defendants, if necessary, by a continuance of the 
motion, or by requiring a new notice, to make any 
defence they might have had to the motion. But it 
is difficult to conceive what defence they could have 
made to it ; and the assertion of such a defence would 
seem of necessity to involve a release of errors in the 
judgment. Had they offered to give such a release, 
the plaintiff, as was well said by his counsel in the 
argument of this case, would no doubt have asked the 
court to overrule his own motion. The defendants 
had their choice, to release the errors in the first judg- 
ment and let it stand, and thus defeat the motion for 
another judgment, at least against the defendants J. 
P. Ballard and J. B. Watkins, against whom only the 
first judgment was rendered; or to let that judgment 
be set aside, and make their defence, if they had any, 
Vol. XVIII — 33 



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258 COUKT OF APPEALS OF VIRGENIA. 

1868. on the motion foi another judgment, of which motion 

Term7 ^^^Y ^^^ ^^^ legsl notice. They did let the first judg- 

ment be set aside, or at least they do not appear to 

& als. have made any defence against the nc otion to set it 

Whltlock ^side, and it was accordingly set asiao ''for reason 
appearing to the court," though it is stated in the order 
that the parties appeared by their attorneys. But the 
defendants made no defence to the motion for another 
judgment, except upon the ground that the former 
judgment had been rendered, though it had been set 
aside as aforesaid. They made no other defence, 
doubtless tecause they had no other to make; but 
wished to avail themselves of the proceedings which 
had occurred in regard to the former judgment, not 

242] because it is a valid judgment and ought to stand, but 
merely for the purpose of delay. 

I have not reviewed in detail the many authorities 
cited and commenced upon by the learned counsel for 
the defendant in error, because 1 thought it unneces- 
sary to do so for the decision of this case. They seem 
to sustain the positions in support of which they were 
cited. As — 1st. That the notice for the second mo- 
tion was good and valid, notwithstanding the exist- 
ence of an invalid and illegal judgment previously en- 
tered on the same bond. 1 Chit. PI. 7th Am. ed. pp. 
523-4; Green v. Watts, 1 Ld. Kaj. R. 274; Knight $ 
case, 2 Id. 1014; S. C. 1 Salk. 329; CromjoeU v. 
Byrnes, 9 John. R. 287, 290; Dyer 32a, pi. 5, 6; 
Jenk. Cent. 74 pi. 40 ; 4 Leigh 58 ; Archer v. Ward^ 
9 Gratt. 622. 2dly. That a writ of error "maybe 
brought by the plaintiff to reverse his own judgment, 
if erroneous or given for a less sum than he has a 
right to demand in order to enable him to bring 
another action." 2 Wms. Saund. lOlf, citing e/oAn- 
son V. Jelh, 3 Burr. R. 1772. 3dly. That if the plain- 



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COURT OF APPEALS OF VIRGINIA. 259 

tiflfs in error have sustained no injury by the want of 1868. 
notice, and could not possibly have sustained any, i^rm.^ 
they certainly are not entitled to reverse upon ^li^^~^iT"ir 
ground the order setting aside the judgment and Aals. 
quashing the execution. Preston v. Harvey^ 2 Hen. whitlock 
& Mun. 55; 64, 5; 66, 7; Pittman v. Breckinridge^ 
d&<?., 3 Gratt. 127; Crawford v. Morris^ 5 Id. 90; 
Hughes v. Stickney, 13 Wend. E. 280; and, 4thly. 
That the defendants in the Circuit Court, by appear- 
ing (as their own bill of exceptions shows they did) 
in opposition to the motion to set aside the erroneous 
judgment and quash the execution upon it, without 
making any objection to that motion upon the ground 
of failure to give them notice of it, must be held to 
have waived the notice, and cannot now be heard to 
make the objection. Ayres^, Lewellin^ 3 Leigh 609; 
Poling V. Johnson^ 2 Kob. E. 285; Pulliam^ i&c,^ v. [243 
Aler^ 15 Gratt. 54; Muire v. Falconer^ i&c.^ 10 Id. 
12. 

In the foregoing opinion I have not adverted to the 
fact that the order setting aside the first judgment was 
made during the same term of the court, because hav- 
ing been made after the 15th day of the term, and 
after an order had been made awarding an execution 
on the judgment, ii; might be contended that the term, 
in effect, was ended as to that judgment when the 
order was made to set it aside, according to the deci- 
sion of this court in Ender'^s ex^ors v. Burch^ 15 Giatt. 
64. Nor have I notic*^! what was said in the argu- 
ment against the correctness of that decision. I have 
not deemed it necessary to do so, because, conceding 
that the order setting aside the first judgment was 
made at a different term of the court, I still think it 
was properly made. 



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260 OOUET OF APPEALS OF VIRGINIA. 

1868 I am of opinion that there \a no error in the judg- 
Tem7 nient, and that it be aflarmed. 

Ballard 
& ale. The other judges concurred in the opinion of Moji- 

Whitlock ^^^5 P- 

JuDOMENt AFFIRMED. 



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COURT OF APPEALS OF VIRGINIA. 261 



Taylor v. Stearns c& aU. I8fi8. 

January 
Term. 
February 19. [244 

A deed of trust to secure a debt, which provides for the time and 
terms of sale, upon the failure of the grantor to pay the 
debt, is of the obligation of the contract, and the act of 
March 2, 1866, to stay the collection of debts for a limited 
period, which forbids sales under deeds of trusts until the 
first of January, 1868, is, in relation to such deeds of trusts, 
unconstitutional. 

By deed bearing date the 19th of September, 1860, 
G. A. W. Taylor conveyed to James M. Taylor and 
John Enders a house and lot at the comer of Clay and • 
Tenth streets, in the cily of Kichmond, which John 
M. Gregory had conveyed to Taylor, to secure the 
payment of thirteen thousand two hundred and ninety- 
Dine dollars and fifty-five cents, due by ten negotiable 
notes bearing even dates with said deed, and payable 
each at six months after the next preceding; it being 
for the balance of the purchase money of the house 
and lot. The trusts were as follo\vs : 

In the event that default shall be made in the pay- 
ment of either of the above mentioned notes, as they 
become due and payable, then the trustees of either 
of them, on being required so to do by the said John 
M. Gregoiy his executors, administrators or assigns, 
shall sell the property hereby conveyed. And it is 
covenanted and agreed between the parties aforesaid. 



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262 COURT OF APPEALS OF VIRGINIA. 

1868. that in case of a sale, the same shall be made after first 

T^rm.^ advertising the time, place nnd terms thereof for fif- 

"Z"", teen days in some newspaper published in the city of 

V. Kichmond, and upon the following terms, to wit : 

& ale. ^^^ ^^sh as to so much of the proceeds as may be 

24:5] ne<;essary to defray the expenses of executing this 

trust, the fees for drawing and recording this deed, if 

then unpaid; and to discharge the amount of money, 

principal, interest and charges then payable upon the 

said notes; and if at the time of such sale any of said 

notes shall not have become due and payable, and the 

purchase ir oney be sufficient, such part or parts of the 

said purchase money as will be sufficient to pay off and 

discharge such remaining note or notes shall be made 

payable at such time or times as the said remaining 

note or notes will become due; the payment of which 

part shall be properly secured, &c. 

The first four of the notes secured by this deed weie 
paid to Gregory; and he afterwards transferred the 
remainder of them to Franklin Stearns. 

In 1866, the trustees, James M. Taylor and Enders, 
at the request of Stearns, advertised in the Kichmond 
Times^ the said house and lot for sale on the premises 
on Wednesday, the 4th of May, 1866, on the terms 
of cash for so much as will be necessary to pay said 
notes and expenses of sale; the balance, &c. G. A. 
W. Taylor thereupon applied by bill to the Judge uf 
the Circuit Court of the city of Kichmond for an in- 
junction to stop the sale, on the ground that the Gen- 
eral Assembly, at the session of 1865-6, had passed 
an act, providing that there should not be any sales 
under deeds of trust for the payment of money (ex- 
cept in certain specified cases, of which this was not 
one,) until the 1st day of January, 1868. 

The injunction vvas granted; and at the next May 



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COURT OF APPEALS OF VIRGINIA. 263 

tenn of the court Stearns, upon notice to the plaintiff, 1868. 
moved the court to dissolve it; but the motion was TeraT 
continued from time to time until January, 1867. In . — 
the meantime, at the June rules, the trustees and v. 
Steams filed their answers ; to which the plaintiff re- ^ J^ 
plied generally; and thereupon, on motion of the [246 
plaintiff by counsel, the cause was set for hearing. 

The trustees, in their answer, disclaim all interest 
except as trustees; and Stearns insisted that the act 
relied on by the plaintiff in forbidding a sale under 
the deed of trust in this case was a violation of that 
provision of the constitutions of Virginia and of the 
United States which forbids a State to pass any law 
impairing the obligation of contracts. 

On the 17th day of January, 1867, the cause came 
on to be heard upon the bill, &c., and upon the mo- 
tion of the defendant Stearns theretofore made to dis- 
solve the injunction; when the injunction was dis- 
solved, and the bill dismissed with costs. And there- 
upon the plaintiff applied to this court for an appeal; 
which was allowed. 

The case was elaborately argued in this court by 
Steffer dk Sands and Lyons ^ for the appellant, and by 
Young and Nance & Williams^ for the appellee. The 
argument on behalf of the appellee is suificiently 
stated in the opinion of Judge Kives, and need not be 
repeated. 

For the appellant it was insisted : 1st. That the act 
was not unconstitutional, because it was retrospective. 
BanghcT v. Nelson^ 9 Gill's E. 299; Goshen v. Ston- 
ington, 4 Conn. R. 209, 2^0; Tncker v. Harris, 13 
Georgia R. 1; Foster <& als. v. The Essex Banlc, 16 
Mass. R. 245; The People \. Livingston^ 6 Wend. R. 
527; Wil/iams v. County Commissioners^ 35 Maine 
345; Hampton v. Commonwealth ^ 7 Harris Pa. R. 



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364 COUET OP APPEALS OF VIRGINIA. 

1868. 329; Butler v. Palmer, 1 Hill's N. Y. 324; Stocking 

^TeJ!S7 V. Hunt, 3 Denio's K. 274. 

^ , 2. Again, it is insisted on, that the obligation of the 

V. contract is impaiied by the suspension of the sale, even 
& als. for a limited period. The practice of eminent chan- 
cellors may be invoked in aid of the propriety of such 

247J suspension. It is matter of every day occurrence for 
equity courts, once having gained control over a trust 
deed, to prescribe in their decrees terms of sale diiler- 
ent from those contained in the deed. They feel in 
duty bound to order such a sale as will best promote 
the interests of the parties. The variation in the terms 
of sale may give an extension of credit beyond the 
time of suspension provided for in the act complained 
of; and yet was such a decree ever reversed and set 
aside because it impaired the obligation of the coe- 
tract ? Were not, in fact, the rights of all parties 
better preserved and protected by it ? 

The violation of the constitution 7nv^t be clear to 
justify judicial interference with a statute. It is not 
contended that judges have no right to interfere when 
the law is imconstitutional, and when the question of 
its unconstitutionality comes directly before the court. 
But before pronouncing a law unconstitutional, the 
court must see that it is in plain, clear violation of the 
organic law. In a doubtful case effect ought to be 
given to the statute. See Opinion of Yerplanck, Ben- 
nett V. Boggs, 1 Bald. K. 74, 75. The Supreme Court 
in Bronson v. Kinzie, 1 How. U. S. K. 311, ran 
counter to the rule, that the unconstitutionality of a 
law ought not to be decided unless the question comes 
directly before the court. In that case, whether the 
law of Illinois complained of was constitutional or not, 
the appellant ought to have succeeded ; and so all the 
court said. After saying this, it was clearly an obUer 



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COURT OF APPEALS OF VIRGINIA. 265- 

dictum to go farther and declare the UliDois statute 1868. 
unconstitutional. Judge McLean takes this view in Term7 
his dissenting opinion, 1 How. U. S. K. 323, and he -, . — 
is followecf by Sedgwick. Sedgwick expressed his v. 
** regret that in Bronson v. Kinzie^ sls in Sturges y. ^^^Is. 
C rownhishidd and the Dartmouth College case, the 
Supreme Court felt themselves at liberty to go beyond 
the case before them, and to express an opinion in re- 
gard to other questions of great id oment, but not neces- [248 
sarily in j udgmen t. ' ' He continues : ' * Tne rule w hich 
confines judicial decisions to the very matter before 
the tribunal is important in all cases, but in regard to 
constitutional questions its magnitude cannot easily be 
over-estimated." Sedg. Stat. 651, note. 

Bronson v. Kinzie^ 1 Hew. U. S. R. 311, thus 
commented on as passing unnecessarily upon the con- 
stitutionality of the Illinois law, was relied on by the 
defendant in the Circuit Court. Bronson v. Kinzie 
was not argued for the statute. This is a significant 
fact. But if its authority was unquestioned, is it like 
the present case? In that case a trust deed was not 
involved as here; and it will not be easy for the defen- 
dant to produce a single case like the present, in which 
a trust deed (a creature of equity, and subject especi- 
ally to equity control,) is concerned. On examination 
the court will find other and great dissimilarities be- 
tween that case and the present. The first to which 
we invite attention is this, that in Bronson v. Kinzie^ 
after a sale, the statute complained of proposed to con- 
tinue the estate of the mortgagor in the property sold. 
In other words, the statute proposed to say that the 
property should be sold and not sold at the same time. 
It proposed to say that the equitable estate of the 
mortgagor should not be extinguished, when the very 
aut of sale extinguished it. There is nothing like this 
Vol. xviii — 34 



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266 COURT OF APPEALS OF VIRGINIA. 

1868. in the present statute. When a sale is made under 

'¥S' .h. Virginia act, it is proposed to mako it a good sal. 

-, , against all the ^vorla. The Illinois statute not onlv 
Taylor ° 

V. opeiated as a suspensions of the remedy by sale, but 
& als. continued to say that after sale it should not be sold 
if the mortgagor came forward to redeem. The 
analogy between the Illinois statute and the Virginia 
statute would be more apparent if the Illinois statute 
had declared that there should be no decree for a sale 
under a twelvemonth; but this it did not do. Would 
such a provision have been declared unconstitutional ? 
249] The answer may be found to this question on reference 
to Holloway v. Sherwan^ 12 Iowa R. 282; Coom 
River Steam Co, v. Barclay^ 30 Alab. R. 120; TFowf 
V. Child, 20 111. R. 209; Kewkirhx, Chapron,\lJ\l. 
344, and especially, Iverson v. Shorter, 9 Alab. 713. 
A second difference between this case and Bronwn v. 
Kinzie is this, that in Bronson v. Kinzie the Illinois 
statute provided that there should be no sale unless 
the Jand brought two-thirds its value — a value set 
upon it by two or three householders selected under 
the law. This was a contingent indefinite suspension 
of the power of sale, and was liable to objections as 
serious as those affecting the first mentioned diflference 
above referred to. There is nothing like this in the 
Virginia statute. When a sale is made under the Vir- 
ginia act, the property is to be sold for what it will 
bring; and hence the greater necessity for a sale at the 
time when the monetary affairs of the country will 
justify the expectation of a fair price. What real simi- 
larity is there between the two cases ? Here is sim- 
ply a suspension of the remedy by sale. In Bronam 
V. Kinzie there was, in the first instance, a destruc 
tion of the sale after its being made at the option of 
the mortgagor ; and, in the second instance, a com 



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COURT OF APPEALS OF VIRGINIA. 267 

plete annihilation of that power, if the property should 1868. 

not bring two-thirds of what two householders said it xermT 

was worth. Branson v. Kinzie. thus shown to be - , 

' Taylor 

inapplicable to this case, has not been sanctioned by v. 
many of the State supreme courts. In Chadioick v. & ^ig 
Moore^ 8 Watts. & Serg. R. 49, the statute com- 
plained of suspended sales on executions for a year, 
unless two-thirds of the appraised value was realized. 
It was held that this statute was not unconstitu- 
tional. And although in Bailey v. Gentry^ 1 Miss. 
R. 164, the act of the Legislature granting a stay of 
execution for two years and a half, unless the plaintiff 
or his agent endorsed that property at two-thirds its 
value, would be taken in satisfaction, was held uncon- 
stitutional; yet Chadwick v. Moore^ ubi surpa^ is sup- [250 
ported by numerous decisions. See GrimhaU v. Ross^ 
Charlt. 175; Heyward v. Judd^ 4 Minnesota R. 483; 
Stone V. Bassett^ 4 Id. 298; Newton v. Tibhats^ 2 
Eng. R. 150; Bronson v. Newberry^ 2 Doug. Mich. 
Pw. 38; Rockwell v. UubbeWs adnCr, 2 Id. 197. See 
also Baumbach v. Bcule^ 9 Wise. R. 559, and StarJc- 
weather v. Hawe, 10 Wise. R. 125, 126. Of Bailey 
V. Gentry^ 1 Miss. R. 164, it way be remarked, that 
the act tendering to the execution plaintiff the option 
either to take property, i. ^., property other than 
money, at two-thirds its value, was a legislative act, 
tendering an amendment of the contract to the credi- 
tor under penalty of two-and-a-half years delay. This 
was clearly beyond legislative power. The legislature 
has no right to make or amend contracts for the citi- 
2en, but it may say, as it has often said, how such con- 
tracts may be proceeded on, and it may say, as it has 
often said, that unless proceeded on within a reasor - 
able time fixed by itself, the rights under it are at an 
end; and it may say, as it has often said, that the 



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268 COUKT OF APPEALS OP VIKGINIA. 

1868. power to proceed against a debtor's person to enforce 
Term7 ^^^ performance of his contract shall cease. Before 
"^i j passing from this comment on Branson v. KinzU^ it 
V. ought to be remarked that this case arose, as other 
& als. cases before the United States Supreme Court, between 
citizens of different States, and the court decided it 
with reference to the United States constitution. To 
say the least, it may well be doubted whether this de- 
cision and other decisions of the United States Supreme 
Court, thus based on the Federal constitution alone, 
and aflfecting the rights between citizens of diiferent 
States, even though such decisions were in cases simi- 
lar to this, should be regarded as authoritative and 
binding in the present case. This is not a case be- 
tween citizens of different States, for the protection of 
whom, as citizens of diflfeient States, the article in the 
251] Federal constitution was designed, but it is a case be- 
tween citizens of the same State of Virginia, and the 
question is, whether the constitution of Virginia has 
been violated, or any article of the Federal constitu- 
tion designed for the protection of one State inter sese. 
As pertinent to this remark, and enforcing the just- 
ness of the distinction here drawn, the court is referred 
to Oivings v. Speedy 5 Wheat. R. 420, and to the lan- 
guage of Sedgwick, when speaking of the limitations 
of the Federal courts. That writer says : ^ 'The States 
may pass retrospective laws, however unjust; may 
pass acts of a judicial nature; may pass acts divesting 
vested rights; iray violate express provisions of their 
own constitutions — acts of these classes, how^ever ob- 
jectionable, are not within the scope of the restriction 
of the Federal constitution, and give no right of ap- 
peal from the decisions of the State tribunals." Sedg. 
Stat. 639. This being true, at the utmost the deci- 
sions of the Supreme Court of the United States in 



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OOUKT OF APPEALS OF VIRGINIA. 269 

Branson v. Kimie^ and similar cases, are not authori- 1868. 
tative and binding decisions upon this court in the Term7 
present case: but are simply persuasive. Whether ""Z , 
they ought to persuade the court in the present case v. 
to declare the statute of Virginia unconstitutional, &aig. 
when the Virginia act differs so widely from the cases 
in which these decisions were rendered, and when, as 
has already been shown, so many of the supreme 
courts of the bcveral States have decided otherwise, 
is a question which this court must determine for it- 
self. 

McCracken v. Rayward^ 2 How. U. S. R. 61, and 
Howard v. Bughee, 24 How. U. S. E. 461, following 
Branson v. Kinzie^ 'are liable to the objections just 
urged in reference to Branson v. Kinzie, The first 
contained the clauses concerning redemption after a 
sale, and no sale unless two-thirds of the ^alue were 
realized. The second, Ilmoard v. Bvghee^ contained 
the clause giving right of redemption two years, after 
a sale. There is no need for further comment hero. 

Green v. Biddle^ 8 Wheat. R. 1, unquestionably [252 
settles, that the act coraplamed of was a violation of 
the provision of the Federal constitution. But what 
is there of likeness between that case and the present ? 
Acts of the Legislature of Kentucky exem ptmg occu- 
pants without title from liability for waste, and com- 
pelling the true owner to pay for the improvements 
put on the land by the occupant even during the pen- 
dency of the suit, were held in that case to be m con- 
travention of the compact between Virginia and Ken- 
tucky, and viere held to be unconstitutional. What 
possible resemblance is there between that case and 
this? 

The rule established is, that a contract shall not be 
impaired; but an act changing the node of proceed- 



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270 COURT OF APPEALS OF VIRGINIA. 

1868. ings for relief; an act suspending for a period of nine 
TermT nionths relief in the foreclosure of a mortgage, IIoUo- 

"^r"| — way V. Sherman^ 12 Iowa R. 282; an act taking away 
V. from a landlord the power of distress, though that 
& als. power be embraced in the agreement, Conkey v. Ilart^ 
14 N. Y. (4 Kernan) 22, have been held not to impair 
a contract, and not to be in violation of the constitu- 
tion. Some of the cases talk loosely about changing 
the time of performance, but the meaning of this is 
cleaily not extended to the manner of enforcing the 
contract. No one has ever rightly doubted the con- 
stitutionality of the replevin or of the forthcoming 
bond, and the consequent suspension of right to 
collect, though the contract is acknowledged to be in 
full force, and the courts are actually in process of 
enforcing it. This remark is made with knowledge 
cf the cases of Blair ^ &c. v. Williams^ 4 Lit. (Ken.) 
E. 34, and Grayson v. ZiUy^ 7 B. Monr. R. 6. In 
these cases, it is true the extension of the right of re- 
plevin from three months to two years was held un- 
constitutional; but there is no reconciling these cases 
with Butler v. Pal^ner^ 1 Hill; Hainpton v. Common' 

253] wealthy 7 Harris 329, and Williams v. County Cam- 
missioners, 35 Maine 345. The Supreme Court of 
Kentucky, in the two cases cited, Blair v. Williams 
and Grayson v. LiUy^ is at variance with the highest 
couits of New York, Pennsylvania and Maine. On 
principle, as declared by some of the cases, the Ken- 
tucky decisions are wrong. These authorities say it 
is clear that the contract is not impaired when the 
action of the Legislature is not on the contract, but 
on the mode of enforcing it. A contract to pay rent, 
and a remedy by distress for its collection, are two 
distinct things. A contract by trust deed securing a 
debt, and the remedy in case of failure to pay, by 



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COURT OF APPEALS OF VIRGINIA. 271 

selling and paying over the proceeds to the secured 1868. 
creditor, are two different and distinct things. As ^^J 
to what is said about making the remedy a part of the ~ j — 
contract, which is referred to in some of the cases, v. 
can it be that the distinction is well taken r If the ^ ^^ 
law of remedy is ex necessitate rei incorporated into 
the contract, does the fact that the leraedy is specially 
mentioned in the contract alter the rights of the par- 
ties, or abridge the power of the Legislature ? This 
seems unreasonable. But were it so, this case pre- 
sents a case in which the defendants seelis to obtain 
payment under the trust deed, not by virtue of its 
provisions, for the trust deed iloes not provide for the 
payment to him, but seeks to obtain payment by 
virtue of the act of the Legislature prescribing that in 
such cases payment shall be made. 

In Green v. Biddle^ we have seen what was the 
character of the acts of which Judge Washington was 
speaking when he said: **That it is no answer that 
the acts of Kentucky now in question are regulations 
of the remedy and not of the rights to the lands." 
And farther: '*If these acts so change the nature 
and extent of the existing remedies as materially to 
impair the rights and interests of the owner, they are 
just as much a violation of the compact as if they di- 
rectly overturned his rights and interests." It has [254 
been already seen that Green v. BiddU was an en- 
tirely diflferent case from this. Has any case been 
found, can any case be found, in which such language 
has been held in relation to the postponement of a 
sale under a trust deed. Let the present case be 
looked at in the light of the remark of Judge Wash- 
ington in Green v. Biddle^ above cited. Does the 
extension of the time of sale materially impair the 
rights and interests of this creditor. The facts as de- 



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272 COURT OF APPEALS OF VIEGINIA. 

1868. veloped by the record are notorious. The defendant 

Term!^ lived in Richmond city during the war, when this city 

^ , — was under the actual control of the Confederate irov- 
Taylor ^ 

V. emment. Whatever may have been his wishes, he 
& als.^ ^^ compelled to render allegiance to that govern- 
ment. He was compelled to use the only currency 
' then in existence in Richmond city. He bought with 
that curreocy and sold for it. He stated in his 
answer tnat he had no faith in the currency. He Tvas 
solicitous, therefore, as a matter of course to part 
with it. He bought the notes in this case with it. 
He does not say this in these exact terms in his 
answer, but he does say that he gave a check en the 
bank for it; and the banks were paying nothing but 
Confederate money. He bought then this debt 
against the plaintiff with Confederate money. The 
debt consisted of notes yet to fall due at the time of 
his purchase. They were carefully kept from bank, 
the place of payment. The plaintiff was anxious to 
pay, but could not find his creditor nor the notes. 
The notes weie secure in the creditor's possession, aod 
so retnained for nearly three years, without a dem^id 
for payment, or, indeed a- permission of payment 
During these three years, the creditor had virtually 
enjoined and restrained the payment of his own debt 
He knew the debtor could pay in nothing but Con- 
federate money ; there was nothing else then to pay 
with, and he carefully eschewed the collection of the 
255] claim. The debtor could not sell his property under 
the trust deed; the creditor would not. On the 3d 
of April, 1^65, the Federal forces occupied Richmond 
city ; and within eight days after the fall of Rich- 
mond, at the farthiest, when there was universal 
poverty, destitution and distress; when the richest 
men in the community, because of the destruction cf 



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COURT OF APPEALS OF VIRGINIA. 273 

the currency, could not raise five hundred or a thou- 1868. 
sand dollars, the defendant, who had slept on his lights xeraiT 
for years, suddenly awoke from his slumbers and de- "^7"i 
manded *'his pound of flesh." By this time several v. 
thousand dollars had become due, and the creditor ^ aig, 
demands it under penalty of selling his property. The 
Legislature of Yirginia steps in and interferes to pre- 
vent the wrong, declares that in a time cf great public 
distress, on account of the destruction of the currency 
and the universal prevailing want, it would be a ruinous 
sacrifice of property to force it into market, and pro- 
vides that sales under trust deeds shall not be made 
until January 1st, 1868, and the question for the con- 
sideration of the court is this: ^^Is this act of the Leg- 
islature of Virginia a violation of the constitution ? 
Does it impair the obligation of contracts ?" 

There can be no doubt as to the hona fides of the 
legislation. It is not legislation similar to the Yazoo 
grants. There can be as little doubt that the Leg- 
islature, irv both of its branches embracing some of the 
ablest and wisest men in Virginia, saw the great ne- 
cessity and the uprightness and moral integritv of 
Ruch legislation. They did not design to inflict injury, 
but to prevent it; they did not design to defraud 
creditors, but to protect them; not to protect one at 
the expense of the rest, but to protect them all by 
enacting that the property of debtors should be sold 
at such time as would ensure to a fair value. The 
defendant insists that it is a great wrong, almost an 
outrage, to suspend the- collection of his debt for a 
few months, to interfere, as he says, with the natural 
results of the contract he has made. It is a greater [256 
wrong that he should be delayed in the collection of 
his money a few months, or that the plaintiff's 
property should be taken from him at half its real 
Vol. XVIII — 35 



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274: CX)URT OF APPEALS OF VIRGINIA. 

1868. worth ? The letter of the contract, insists the de- 
TNermT fendant, reads that the property must be sold, whether 
^ , it bring one-half its value, or the third of it. The 
V. appellant does not so read the letter of the contract, 
& ale. but if its letter read that way, its spirit is altogether 
different. Every contract must be construed ration- 
ally, and the intent of the contracting parties, accord- 
ing to the reasonable intendment of the contract, is to 
be carried out. But is it true that no regard what- 
ever is to be had to the time at which property is to 
be sold other than that expressly mentioned in the 
**bond ?" Is it not true that courts of equity, inde- 
pendent of express statutes, interfere to prevent great 
wrong, even when the letter of the deed demands a 
sale by prohibiting a sale ? And if courts of equity, 
may do that in individual special cases, without incur- 
ring the charge of impairing the obligation of con- 
tracts, why may not the Legislature, whose business it 
isjiisfaeere^ seeing a great public necessit}^, and that 
great oppression and wrong will ensue from sales of 
land at a crisis like Ihis, declare that such wrong shall 
be prevented by positive and general legislation ? 
The principle is the same in both cases; the only 
difference is, that it is more widely applied in the one 
case than in the other. 

But the appellee says, that the suspension cf the 
power of sale is a destruction of his right. Not at all. 
The right is all the while recognized and in proprio 
mgore. It is a vested right. He has a lawful and 
just claim to his money. The property of the appel- 
lant is under incumbrance. He is himself bound for 
its payment. But the defendant, in the language of 
the court in Foster v. The A'ssex Bank^ 16 Mass. R. 
245, has not '*a vested right to do wrong." He has 
257] not the moral nor the equitable right to sell the ap- 



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COURT OF APPEALS OF VIRGINIA. 275 

pellant's property in a time of great public monetary 1868. 
distress for half price. Term.^ 

The suspension of the power of sale under a trust ^ ^ ^ 
deed no more impairs the right of a creditor than the v. 
suspending the power of sale under a fieri facias by ' ^ J^ 
the execution of a forthcoming bond. The right to 
immediate collection is suspended in both cases. The 
results are identical; at least, they are identical when 
in both cases the security is ample. Why, then, urge 
against the Virginia act its unconstitutionality because 
it suspends the collection of the debt, when confess- 
edly the law authorizing the giving of a forthcoming 
bond is constitutional, which produces the identical 
effect ? 

If the distinction, made in some of the cases between 
impairing the right and changing the remedy, is a 
sound one, the appellant may justly insist that trust 
deeds are the creatures of equity tribunals, that the 
lights of beneficiaries in the trust owe their origin to 
the wisdom and the discretion of those courts, and 
that the power of sale is as much a part of the remedy 
(the power of sale for the benefit of the creditor) as 
the power to enforce specific performance of a con- 
tract of sale of realty is. There is neither leason nor 
justice m saying that one who holds the appellant's 
note for $5,000 shall be compelled to wait for his 
money at the pleasure of the legislative will, while 
the creditor of an equal or less extent is permitted, by 
public sale, to saciifice his propeity at half price, and 
there is no power in the Legislature to prevent it. 

What is impairing the obligation of the contract? 
Our opponent answers, ''by changing the time and 
manner of its performance.'' He is quoting the lan- 
guage of Justice McLean in Bonnon v. Kinzie, Jus- 
tice McLean dissented in that case, and this sentence 



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276 COURT OF APPEALS OF VIRGINIA. 

1868. is extracted from his opinion. To change the time 
Teraj!!^ and manner of performing a contract is not always to 
-, , impair its obligation. Time is often changed without 
V. incurring such a charge. The appellant, for example, 
&al8. executes his negotiable note at thirty days. He 
258] promises to pay thirty days after its date a certain 
sum. The face of the contract, its letter, says one 
thing. The law changes it, and says another and a 
different thing. He is to pay thirty-three, not thirty, 
days after its date. Again, the thirty-third day 
occurs on Sunday, or the 4th July, or the 1st January, 
or the 25th December; the law declares that payment 
must be made on the thirty-second day. So, too, in 
relation to the manner of performance; that maybe 
changed without necessarily impairing the obligation 
of the contract. The appellant contracts in 1863 to 
pay one hundred dollars, meaning one hundred Con- 
federate dollars. Would any court listen patiently to 
- him if he sought now to discharge his obligation , to per- 
form his contract, by paying one hundred Confederate 
dollars ? The Legislature has changed the maimer of 
performing the contract. He is now to pay in cur- 
rency the worth of the Confederate dollars when the 
contract was made. Is this changing of the manner 
an impairing the obligation of the contract ? Is it not 
the rather giving it force and effect ? 

The Circuit Judge quotes approvingly the decision 
in Bumgardner v. Circuit Court of Howard county ^^ 
Miss. K. 50. The decision can hardly be sustained 
on authority. Of BaiUy v. Gentry^ 1 Miss. E. 164, 
it has been already stated that it is in direct conflict 
with Chadwick v. Moore^ 8 Watts & Serg. and other 
cases before cited. Blair v. Willkims^ 4 Litt. went 
off on a point altogether different from that arising 
under the Virginia statute. It was like Branson v. 



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COURT OF APPEALS OF VIRGINIA. 277 

Kinzie in one of the particulars in which Bronson v. 1868. 
Kinzie is distinguished from the present. Under the TermT 
penalty of two years delay, the Legislature tendered ^ , 
to the creditor a chanpje of his contract. A law made v. 
in good faith exempting property from distress or levy & als. 
which was not before exempt, has been held repeat- [259 
edly to be constitutional. See on this point Conkey 
V. Hart^ 14 ]S\ Y. 22; Reed v. Penrose^ 2 Grant. 
(Penn.) 472. 

Has the obligation of the contract in controversy 
here been impaired by the Virginia statute ? The 
distinction between ^'obligation" and ''remedy," if 
well taken, it is insisted, is material and important in 
this case, for remedy does not merely include the 
actual assertion of rights in the courts of the country 
but includes also matters in pais. Thus to advertise 
property for sale under an execution is a part of the 
remedy; the length and manner of the advertisement 
is a part of the remedy. To take down property 
oflPered for sale for want of bidders is a part of the 
remedy. To distrain for goods under a lease even 
though the lease in terms provides for the distress is a 
part of the remedy and as has been seen may be modi- 
fied by legislation retrospective in its operation. 

Why is not the power of sale by a trustee, for the 
purpose of paying the proceeds of sale to a benefi- 
ciary, (whose rights are the creatures of equity in 
affording remedies to those really interested and not 
nominally), also a part of the remedy ? 

It is not exactly stated in the opinion of the Circuit 
Judge, in what special items the present statute of 
Virginia has offended against the rules he has laid 
down as ascertaining a law to be unconstitutional. 
One of those rules to which Be adverts is, that a legis- 
lative act "cannot suspend all remedies existing at the 



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278 COUKT OF APPEALS OF VIRGINIA. 

1868. time the contract was made, because tbese remedies 
Term?^ form a part of the contract, and are an essential in- 

— -- — gredient in if This is noc the case here. So far 

V. as the present controversy is concerned, the single 

(feala.^ suspension of the power of sale under a trust deed lor 

a limited time is involved. This is but one remedy 

out of many, not all the remedies for the enforcement 

260] of the contract. The creditor here can sue at law ; the 
stay law does not prevent him. The creditor may 
invoke the aid of equity, if the debtor were improperly 
dealing with the property under incumbrance; the 
stay law does not inhibit such a suit. The Circuit 
Judge errs in the statement, that the deed authorized 
the trustee, out of the money raised by sale, to *'paT 
to the creditor the amount due on the notes with in- 
terest." That is the language of the Code of Vii- 
ginia, chap. 117, sec. 6, not of the deed. The Circuit 
Judge says that '* the principle to be deduced from 
the decisions is, that the Legislature may alter what- 
ever belongs to the remedy merely, provided the 
alteration does not impair the 'obligation of the con- 
tract." This language seems scarcely consistent with 
the statement afterwards made, that 'Hhese remedies 
form a part of the contract, are an essential ingredi- 
ent to it." If this be so, it would seem impossible to 
alter the remedy, without at the same time impairing 
or changing the contract. Either the one or the other 
position must be abandoned; they do not stand to- 
gether. To reconcile these contrarities, may not this 
be the true line: "Whenever it is the purpose of the 
Legislature so to deal with the subject of contracts as to 
impair them, whether by improperly changing the 
mode of asserting rights under them, or by changing 
their terms and spirit, su«h legisation is in contraven- 
ticn of the constitution. Whenever, in good faith. 



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COITRT OF APPEALS OF VIRGINIA. 279 

the Legislature deals with the subject of contracts, 1868, 
so as not to impair but to preserve the rights of all Term7 
parties thereto in all their entirety, such legislation is ~ — ' — 
constitutional, even though the immediate enjoyment v. 
of the fruits of the contract be postponed." Time &^^ 
sometiraes is of the essence of the contract; at other 
times not so. Whenever it is of the essence of the 
contract, to abridge or extend the time of performance 
is to impair its obligation. But in ascertaining the 
time of performance, the letter of the contract is not [261 
to be adhered to in contravention of its spirit. These 
principles are few and simple, and the appellant is 
willing that his cause may be determined by their ap- 
plication. Was it the design and true purpose of the 
appeUant that his property should be sold while the 
cannon of the Federal forces were thundering at the 
gates of Kichmond ? Did his beneficiary. Judge 
Gregory, mean by taking his deed that, in case of 
failure to pay the notes, the property should be sold 
at his option at all events, without regard to circum- 
stances ? Was it understood, agreed, contracted, 
that though a terrible civil war should intervene, Jloff- 
rante beUo^ before the thunder cf artillery had scarcely 
ceased, while the currency of the country was utterly 
destroyed, and when there was universal monetary 
distress, a sale should be made of the property con- 
veyed to the ruinous loss of the appellant ? An em- 
phatic negative should be given to these questions. 
Yet to say that a statute which interposes to prevent 
such a wrong, to avert such a hardship, is impairing 
the obligation of the contract and unconstitutional, is 
to give countenance to this unreasonabJe interpretation 
of the appellant's a^ed; is to say, in other words, 
that come what will, at all hazards, the property is to 
l)e sold at the option of the creditor, whatever the 



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280 COURT OF APPEALS OF VIRGINIA. 

1868. loss, whatever the ruin to the debtor. After all, the 
Term7 appellant urges the true question for the solution of 
— the court is this, whether the statute of Virginia com- 
V. plained of is in good faith an exercise of legislative 
&al8.^ po\\er not to perpetrate a wrong, but to prevent it: 
and if the latter, he submits whether it affect the 
remedy or the contract itself, it is not in violation of 
the constitutional provision against impairing the obli- 
gation of contracts. 

Was the act in good faith ? The appellant, m 
answer to the question, contents himself with a simple 
reference to the preamble of the statute, and to what 
has already been said. 
262] Before concluding, it is proper also to refer the 

couit to what is said by the legislative committee de- 
fending the action of the Legislature in passing the 
law; also to the American Law Kegister 1S03-4, pp. 
93, 107; 1865-6, pp. 83-94, and the following cases : 

Classification of ca^es in which stay laws have been 
held constitutional. — Acts abolishing distress for 
rent, though expressly provided for in the lease — 
Taking away the right of a creditor to sequestrate 
the property of his debtor — Abolishing imprison- 
ment for debt — Changing or modifying the remedy 
— Staying executions — Abolishing courts — Confin- 
ing creditor to one remedy — Retrospective registry 
acts — Eepealing extiaordinary remedy — all held to 
be constitutional. 

2 Grant. (Penn. R.) 472, Re^d v. Penrose; 30 
Alab. R. 120, Coosa River St, Co. v. Barclay; 20 
Illinois R..209, Woody. Child; 14 N. Y. R. (4 Ker- 
nan) 22, Conhey v. Hart; 17 Illinois R. 344, Newkirk 
V. Chapron; 1 Wisconsin R. 26, Liyhtfoot v. Cole; 3 
Kernan R. (X. Y.) 299, Van Ransalaer \. Snyder; 



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COURT OF APPEALS OF VIRGINIA. 281 

4 Texas R. 470, Be Cordova v. Galveston; 30 Maine 1868. 
R. (1 Heath) 9, Colhy v. Dennis; 3 Selden R. (N. Y.) ^XelT.^ 
500, Donnelly v. Corbett; 13 Geo. R. 1, Tucker v. — - — 
Harris; 9 Gill. R. 299, Baugher v. JVehon, 1 Mary- v. 
land Ch. Decis. 6id, Wilson v. HardesUj; 2 English ^^^^^ 
R. 150, Newton v. Tibhats; 2 Douglass R. 38, ^m/i- 
#^>n V. Newberry; 3 Denio R. 274, Stocking \. Tlvnt; 
4 Gilm. R. 221, Brxice v. Sclmyler; 8 Smedes & 
Marsh. R. 9, Ci>m. Bank v. Chambers; 1 McLean 
R. 528, 6^my v. Mcmroe; 4 Hump. R. 13, Tft^c?^?*, 
V. Hooper; 6 Blackf. R. 373, Fisher v. Lacky; 1 
Alab. R. 312, Rathbone v. Bradford; 2 Alab. R. 
401, Bartlett v. Zo/iy; 4 Wheat. R. 122, ^S^t^r^^^ v. 
Orowninshield; 12 Wheat. R. 370, Mason v. Haile; 
47 Maine R. 91, Kingly v. CousItis, 
Mortgage stay laics held canstitutional: [265 

9 Wisconsin R. 559; 10 Wisconsin R. 125, 126; 
Charlt. R. 175, Grimball v. Ross; 12 Iowa R. (4 
Withers) 282, Hollovoay v. Sherman; 4 Minnesota R. 
298, Stone v. Bassett; 4 Minnesota R. 483, Haywood 
V. Judd; 5 Minnesota R. 277, Freeboi^n v. Pettibone; 
9 Alab. R. 713, Tver son v. Shorter. 

Acts changing the statute of limitations — Changing 
existing rules of evidence — Prescribing new rules of 
evidence and of judicial procedure — held constitu- 
tional : 

1 How. U. S. R. 311; 2 How. U. S. R. 608; 3 
Peters K. 290; 28 Miss. R. 361; 4 Wheat. R. 206; 
8 Mass. R. 429; 5 Pick. R. 26; 22 Pick. R. 431; 9 
How. U- S. R. 527; 8 Id. 331; 16 Id. 369; 2 Min- 
nesota R. 241; 13 Georgia R. 306; 7 Georgia R. 
163; 1 Morris R. 59. 

Acts exempting certain property from execution held 

constitutional : 

Vol. xviii — 36 



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282 COURT OF APPEALS OF VIRGINIA. 

1868. 2 Minnesota R. 89; 1 How. U. S. R. 311; 1 Ker- 
'^Teim^ nan R. (N. Y.) 281; 2 Douglas R.197. 

Taylor 
V. Rives, J. The questions that have been made in this 

& als.^ case, and discussed at such length, grow out of a deed 
of trust which the appellant gave on the 19th Septem- 
ber, 1860, on his house and lot in the city of Rich- 
mond, then recently purchased and conveyed to him 
by deed of the same date, to secure the unpaid put- 
chaso nconey, for which he had executed ten negoti- 
able notes, falling due at successive intervals of six 
months, and thus extending from March the 22d, 
1861, to September 22d, 1865. The first four of 
these notes were paid; the remaining six were passed 
in Januaiy, 1862, for value to the appellee Franklin 
Stearns, who afterwards, in view of the rapid depre- 
ciation of the Confederate cuirency, refrained from 
any demand of payment till the restoration of Federal 
authority, and the consequent return of Fedeial 
264] money. After waiting with the appellant for the 
space of a year thereafter, and six months after the 
last note became due, he required the trustees to sell. 
Accordingly they advertised the property for sale on 
the 4th of May, 1866. To prevent this sale, the ap- 
pellant filed his bill, accompanied by copies of said 
trust deed and said advertisement as exhibits A and 
B, and averring, that **said sale was, under the cir- 
cumstances, inequitable, unjust and illegal." Xo 
other reason was assigned for this assertion except 
this, namely: *'At the last session of the Legislature 
of Virginia, the General Assembly of Virginia, im- 
pressed with a sense of the hardship which would re- 
sult from the forced sales of propert}^ resulting in un- 
just and ruinous sacrifice, expressly enacted that there 
should not be any sales under deeds of trust for the 



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COURT OF APPEALS OF VIRGINIA. 283 

payment of money (except in certain specified cases, 1868. 
of which this is not one,) until the 1st day of January, ^^^ 
1868." The bill concluded with a prayer for an in- "ZT", — 
junction against the sale, which was awarded on the v. 
24th of April, and the subpoena executed on defen- ^^als. 
dants on 1st May, 1866. 

On the 4th of June, 1866, the defendants filed their 
several answers; the trustees denying for themselves 
any knowledge of the allegations of the bill, and all 
interest in the suit, except as mere trustees; and the 
appellee Stearns, responding to what he terms, ^^the 
fmly material allegation in the hill^ namely, the act of 
the General Assembly forbidding sales under trust 
de€ds until the 1st cf January, 1868, takes issue upon 
that law as void under the constitution of Virginia and 
the Constitution of the United States. Previous to 
the filing of these answers, to it, on the 2d June, 
1866, a motion as first made to dissolve; and was suc- 
cessively continued till the final hearing on the 17th 
day of January, 1867, which resulted in the dissolu- 
tion of tte injunction and the dismission of the bill. 
But, in the meantime, when the answers were filed on [265 
4th of June, 1866, a general replication was entered 
thereto on behalf of the plaintiff, and on his motion, 
by counsel, the cause was set for hearing. 

I have been thus minute and explicit in tracing the 
successive stages of this cause that I might more 
clearly dispose of two preliminary objections to this 
decree, that seem to have been advanced for the first 
time in this court. T\iq first of these is predicated of 
the fact that the court had possession of the case 
simply on the motion to dissolve and overlooks the 
prior and material entry, by which the plaintiff had 
set down the cause for hearing. But if it be conceded 
that there is a defect of clerical form and regularity, 



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284 COURT OF APPEALS OF VIRGINIA. 

1868. in which this prior entry has been ignored, and the 

TermT cause brought on apparently to a hearing on a motion 

"IT", — to dissolve, it is assuredlv such a matter as it behooved 
Taylor ' 

V. the party affected thereby to notice in the court be- 
<fcak^ low, where it adititted of easy correction, and is not 
an error of substance, to be availed of on appeal. 

The second of these objections applies to the lack of 
explicitness in the terms of the advertisement; and we 
are asked to \iew it now in the light of authorities 
upon the invalidity of sales made in disregard of the 
terms of the power. But, it is a sufficient answer to 
say that no such question or issue has been made in 
this case. This advertisement is made an exhibit with 
the bill ; no intimation of its insufficiency or illegality 
escapes the complainant; he does not allege there, as 
he now does here, that the advertisement should state 
the notes and the amounts due, so as to notify and 
prepare bidders for the sale. The bill itself discloses 
his full knowledge on that subject, and his ability to 
protect himself and his friends from being ensnared 
by the vagueness of the notice. It is, therefore, too 
late to start this objection for the first time in this 
c6urt. However such a objection might weigh in the 
event of a sale and actual damage resulting from an 
266] insufficient advertisement of its terms^ it is wholly in- 
applicable to a case like the present, wheie the object 
of the bill is to prevent a sale on grounds wholly irre- 
spective of the advertisement. Such objections are 
virtually waived or abandoned by the appellant in the 
mode in which he has chosen to conduct and manage his 
cause, and cannot now be availed of in this court. 

Having thus disposed of these assignments of error, 
we are brought to the investigation of the single que^- 
ttofi in this cause. On this alone it was argued, heard 
and decided below. Ko excuse, however ingeniously 



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COURT OF APPEALS OF VIRGINIA. • 285 

suggested, exists to avoid it here. It ruust be met 1S68. 
under the pleadings and the decree. It is a question xerm!^ 
of magnitude, not only because of its consequences to ~z j 
the parties and its bearings upon the community at v. 
large, but more especially because of the delicate and ' & als. 
responsible nature of the function required of this 
court. True, it is not a question of dimensions cor- 
responding with the extensive range of the argument. 
It has been discussed as if invohing all the prom- 
rions of the^act of March 2, 1866. No special atter- 
tion was given to the particular clause of the act em- 
bracing sales under deeds of trust; nor any enquiry 
made to distinguish it from the suspension otjvdicial 
process under the same act. Both in the argument 
here, and the opinion of the court below, these provi- 
sions of the act were, for the most part, confounded, 
and assumed to rest upon the same ground; or, at 
any rate, if the discrimination was incidentally sug- 
gested, it was not developed with that clearness and 
precision to display the impropriety or avoid the ne- 
cessity of pronouncing on the constitution ality of the 
whole law. Had more attention been paid to this 
distinction, and greater pains taken to treat this par- 
t{<ntlar enactment separately and apart from other 
parts of the statute not involved in this controversy, 
I venture to suggest it would have greatly abridged 
the argument, and involved far less of the metaphysi- [267 
cal refinements and speculations, that have confused the 
opinions of the courts on the difference between oUi- 
gation and remedy of contracts to such a degree as to 
leave the doctrine on that point in a most unsatistac- 
tory state of uncertainty and perplexity. It is, how- 
ever, the manifest duty of this court to confine itself 
to the issue made by the pleadings; and to abstain 
Irora expressions or intimations of opinion which. 



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286 . COURT OF APPEALS OF VIRGINIA. 

1868. would be extra-judicial, and might be deemed a de- 
Term7 parture from the reserve usual on such occasions. 

"Z~" — Our enquiries must therefore, be confined to that 
V. clause of the statute forbidding sales under deeds of 
&al8.^ trust until the 1st of January, 1868, which period 
was extended by a subsequent act of the 1st of 
January, 1869. This throws out of our consideration 
the vexed question of the authority of the Legislature 
o-^^Y judicial process and remedies to enforce contracts, 
and will limit our investigations to the plainer doc- 
trine of the legislative action upon the obligation, as 
contra-distinguished from the remedy arising ont 
of contracts. This position, however, I shall seek 
to put in a clearer light in a subsequent part cf this 
investigation, for the present, I desire to preclude all 
or any expectation of my being betrayed into any 
opinion upon such parts of this statute as are in no 
wise involved in this controversy; and to express my 
belief that a satisfactory decision of this cause can be 
reached without embarrassing ourselves with the in- 
tricate and conflicting views to which I have alluded, 
and without undertaking to decide the constitutionality 
or unconstitutionality of the whole statute. 

It has been remarked upon as a curious circum- 
stance, that the framers of the constitution, in laying 
down barriers against legislative invasion of private 
rights, should have omitted to provide any positive 
guarantee or specific protection; should have attached 

268] no sanction or penalty, and been silent as to the mode 
in which the fact of violation was to be established or 
the prohibition enforced. Sedgwick on Stat, and 
Const. Law, p. 477. But it would seem that the nul 
lity of a law repugnant to the constitution was enough 
to maintain this bulwark against legislative encroach- 
.ments. A resort to the courts must be had to test the 



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COURT OF APPEALS OF VIRGINIA. 287 

validity or assert the supremacy of laws; and the in- 1868. 
terests of persons affected by them furnish an active xemT 
motive and an imperious necessity for such a resort. '^~~i — 
In this way, the judiciary takes cognizance of such v. 
cases, and is clothed with authority to prevent the ^ ajg, 
ministerial officers of justice from obeying an act of the 
Legislature transcending its prescribed powers, and for 
that reason void. Hence, it is now well settled, that 
it falls within the peculiar province of the judiciary 
to protect the citizen against all infractions of the con- 
stitution touching his rights; and no higher protection 
or guarantee, it seems to mo, could be given than is 
found in the practical administration of justice under 
the restraints of the constitution and the solemn sanc- 
tions of an official oath to support it. While, there- 
fore, a due respect to the Legislature exacts of the 
judiciary the cautious rule, which it has always pro- 
fessed and acted on, of exerting its high prerogative 
of denouncing a law as unconstitutioTial only in clear 
cases^ and of resolving all (^oubts in favor of the law, 
nevertheless it would be a culpable surrender of its in- 
dependent judgment and co-ordinate authority if it 
could be led by motives of deference or delicacy on 
the one hand, or the fears of responsibility on the 
other, to find shifts or excuses for denying the pro- ^ 

tection which the fundamental law of the land ordains 
to private rights against legislative violations. I 
would magnify, rather than underrate, the respect 
due fiom this court to the Assembly, whose laws it ad- 
ministers; that sentiment, however, inspires no blind 
and servile homage; it exacts only that respectful con- 
sideration which, while conceding the full measure of [269 
deference to be paid to the Legislature, leaves to this 
court absolute freedom of deliberation upon its acts 
when brought under its review. . 



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288 COURT OF APPEALS OF VIRGINIA. 

1868. These considerations are much enhanced in this case 
Term!"^ by the caution and deliberation which marked the 
^ , passage of this act. If any part of it be repugnant to 
V. those constitutions, which the members of the Assembly 
& als. ^ ^®1J ^s ourselves are bound to observe, it was because 
of no inadveitance on their part, noi of any failuie to 
examine the grave challenge of their competency in 
the premises. The able and ingenious reports by 
which this law was advocated, proceeded from a com- 
mittee comprising the highest legal talent of the State, 
and who advanced a new theorxj for the justification 
of the law. The preamble of the act itself attests the 
direct and special consideration which the Assembly 
gave to the questions we are about to examine. It 
recites, that '* while this General Assembly recognize 
their imperative duty to respect and obey the eonstUu- 
tional provisions which prohibit the en/tctment of any 
law impairing the obligation of contracts^ they believe 
that, when construed with reference to the objects of 
those provisions, and in the light of principles recog- 
nized and acted upon by the courts of justice at the 
time of the adoption of the constitution of the United 
States, as well as before and since that time, those 
provisions do not forbid them fiom granting a tempo- 
> rary suspension of remedies in such a state of things 

as the present, in order to prevent the cruel and ruin- 
ous results which would ensue without such interposi- 
tion, and especially as it requires that creditors, while 
their right to ultimate payment is held inviolable, shall 
submit to a course to which they might well be con- 
strained by the instincts of natural justice and hu- 
manity." 

No doubt, therefore, exists that the Assembly duly 
270 1 considered and decided for themselves this constitu- 
tional question, and that the passage of the law is to 



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COURT OF APPEALS OF VIRGINIA. 289 

be taken as their judgment that there is nothing in it 1868. 

in conflict Avith the constitution of the United States TeimT 

or the constitution of this State. This fact truly ad- _, , — 

Taylor 

xnonisbes us to the greater caution in our deliberations v. 
and the closer scrutiny into our reasonings; but it ^als!^ 
cannot exonerate us from the duty of following oui 
convictions where, by the constitution, public interests 
and private rights are made to abide our indepelident 
judgments in the last resort. 

The first step in our enquiries should be, to acquire 
a clear and definite idea of the constitutional prohibi- 
tion. Its inseition in the constitution of the United 
States was to preserve a uniform sanctity of contracts 
in all the States. How it came, in almost the same 
language, to find a place in the State congtitutions is 
not so clear. It appears in the Federal constitution 
as a restriction upon the States, which would seem to 
supersede the necessity of a similar provision by the 
States. But doubtless the principle had been canon- 
ized as a fundamental guarantee of private rights, and 
along with the interdict upon bills of attainder and ex 
post facto laws been ranged among the indisputable 
maxims of individual right and liberty, and the essen- 
tial barrier for their protection against the invasions 
of the Legislatuie. It was first introduced into the 
constitution of this State at its revision and amend- 
ment in 1829-30, and was reported among the pro- 
visions of the legislative department by Mr. Madison, 
who had* borne so conspicious a part in the formation 
and adoption of the Federal constitution. Our consti- 
tution, as well as the constitutions of a large majority 
of the States, adopts the language of the constitution 
of the United States., namely, ^' any law impairing 
the obligation of contracts,'''' In Ohio, Indiana and 
Illinois, the term "obligation" is substituted by "va- 
VoL. XVIII— 37 



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290 COURT OF APPEALS OF VIRGINIA. 

1868. lidity^^^ and in Kentucky and Pennsylvania dropped, 
Term. ^^ ^^ ^ leave the clause, ^'any law iinpairing con- 
— tracts. ' ' However varied in phraseology, it is substan- 
V. ' tially the same provision, and aims at the accoraplish- 
(feals!^ raent of the same object. In Ogden v. Saunders^ 12 
271 J Wheat. K. 256, Justice Washington seeks to establish 
''a distinction between a law which impairs a contract 
and one which impairs its obligation." This case, 
indeed, abounds with subtle reasonings and metaphy- 
sical refinements, which are rather curious than prac- 
tical; but it is sufficient for our. purpose to treat tiiis 
language as designed to secure the inviolability of con- 
tracts. This is denied by none. The attempts that 
have been irwide through the resources of a learned 
etymology to explain this phrase seem to have dark- 
ened the sense, and to have given rise to the charge 
of obscurity. There is no use in straining after an 
occult meaning. Its plain import to the common un- 
derstanding is more reliable and far better than the 
subtleties of scholastic derivation. Chief Justice Mar- 
shall has well and summarily disposed of all these re- 
finements by tersely declaring : ''It would seem diffi- 
cult to substitute words which are more intelligible or 
loss liable to misconstruction." Sturges v. Crowmn- 
shield, 4 Wheat. R. 122, 197. He further adds : 
''The law binds him to perform his undertaking; and 
this is, of course, the obligation of his cent ract. ' ' The 
same idea is conveyed in apt words by Justice Curtis 
in Curram, v. State of Arkansas^ 15 How. U. S. E. 
304 : "The obligation of a contract in the sense in 
which these words are used in the constitution is that 
duty of performing it, which is recognized and en- 
forced by the laws." These definitions of couise ex- 
clude the obligation growing out of the moral and 
natural law, as resting upon the sanctions of conscience 



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COURT OF APPEALS OF VIRGINIA. 291 

and the universal governing principles of our nature 1868. 
and being. The former is beyond the reach of the Term7 
human law-giver; and the latter, while still controU- . — 
ing the intercourse of nations, is substituted in society v. 
h\ civil or 7aunicipal law. Still, our contracts are \feal8. 
sensibly influenced by considerations pertaining to [272 
their nvorcd or natural obligation on the one hand, and 
their legal obligation on the other. Thus, in our deal- 
ings, what a different value do we attach to the pecu- 
niary obligation of a man of probity, punctuality and 
means, and of another, doubtful in his circumstances 
and careless of his engagements ? In the former case, 
there will be no thought of a day in court or the ser- 
vices of a sheriff; in the latter, it would be imprudent 
toieckon upon payment save at the end of the law; 
so that it is not without reason that Justice Johnson 
[Ogden v. Saunders) contended, that "the obligation 
of contiacts will be found to be measured neither by 
the moial law alone, nor by the universal law, nor by 
the laws of society alone, but by a combination of the 
three; an operation in which the moral law is explained 
and applied by the law of nature, and both modified 
and adapted to the emergencies of society by positive 
law.'' Storv on Const. § 1378. 

Let us now advance another step in this enquiry, and 
consider vrhat is meant by the term 'Hmpairing.'^'' 
To this end, it will be useful to advert briefly to the 
history of this constitutional provision, and the mis- 
chiefs which led to it. In reply to tl.e question, what 
were the laws in the mind of the framers of this pro- 
vision? Judge Marshall {Sturges v. Crovmmshield^ 4 
Wheat. R. 122, 204,) said : **They were such as grew 
out or the general distress following the war. Paper 
rconey was issued ; worthless lands and other property 
of no ase to the creditor were made a tender, and the 



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292 COURT OF APPEALS OF VIRGINIA. 

1868. tiine of payment stipulated in the contract was extended 
Termf Jy laxoy In his Life of Washington, the state of 
— parties upon these measures is thus giaphically 
V. sketched: '*The discontents and uneasiness arising, in 
Aals!^ a gieat measure, from the embarrassments in which a 
273] great number of individuals were involved continued to 
become more extensive. At length, two great paities 
were formed in every State, which were distinctly 
marked, and which pursued distinct objects with syste- 
matic ariangera en t. The one struggled with u nabated 
zeal for the exact observance of public and private en- 
gagements. The distresses of individuals were, they 
thought, to be only aUeviated by industry and fru- 
gality ; not by the relaxation of the laws or a sacrifice 
of the rights of others. The other party marked out 
for itself a more indulgent course. Viewing with ex- 
treme tenderness the case of the debtor, their efforts 
were unceasingly directed to his relief. To ex^ict a 
faithful compliance with contracts was, in their opinion, 
a measure too liarsh to be insisted on, and was one 
which the people would not bear. They were uni- 
forncly in favor of relaxing the administration of jus- 
tice and of affording facilities for the payment of 
debts, or- of suspending their collection and of remit- 
ting taxes. In many States the paities last mentioned 
constituted a decided majority of the people, and in 
all of them it w as very powerful. The emission of 
paper money; tlie delay of legal proce^ings^ and the 
suspension of the coUection of taxes, were the fruits 
of their rule wherever they were completely domi- 
nant." Mr. Madison's testimony is to the same 
effect: '^In the international administration of the 
States, a violation of contracts had become familiar in 
the form of depreciated paper made a legal tender; of 
property substituted for money; of instalment laws, 



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COUBT OF APPEALS OF VIRGINIA. 293 

and of the occlusion of courts of justice, although evi- 1868. 
dent that all such interferences affected the rights of Term. 
other States, relatively creditors, as well as citizens "ZT"^ 
creditors within the States." In the State of North v. 
Carolina, smarting under this extreme policy of reliefs '&al8. 
this prohibition of the constitution was specially advo- 
cated by a member of the convention, on the ground 
that a sister State could not again do what they had [274 
heretofore done — '*make pine barren acts to discharge 
their debts; declare that our citizens shall be paid in 
sterile, inarable lands at an extravagant price; pass 
instalment laws, procrastinating the payment of debts 
due from their citizens for years.'' 

This contemporaneous history of the legislation out 
of which this restriction grew, and these declarations 
of framers of the constitution, conclusively prove that 
this clause was designed to interdict to the States all 
legislative interference with contracts, such as had so 
disastrously relaxed the morals, interrupted the com- 
merce, and disturbed the harmony of the States. For 
obvious reasons, no attempt was made to enumerate 
cases within this prohibition; but its terms were so 
comprehensive as clearly to embrace the antecedent 
mischiefs, to which it was specially directed, as well 
as to provide against future evils of the same kind. 
The Supreme Court of thp United States has, in a long 
series of decisions, announced their conclusion **that 
any law which enlarges, abridges or in any manner 
changes the intentions of the parties, resulting from 
the stipulations in the contract, necessarily impairs it. 
The manner or degree in which this change is effected 
can in no respect influence the conclusion; for whether 
the law affect the validity, the construction, the dura- 
tion, the discharge or the evidence of the contract, it 
impairs the obligation, though it may not do so to the 



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294 COURT OF APPEALS OF VIRGINIA. 

1868. same extent in all the supposed cases. Any deviation 
Term7 from its terms by postponing or accelerating the period 
. of performance which it prescribes; imposing condi- 
V. tions not expressed in the contract; or dispensing with 
& ale. ^^^ performance of those which are a part of the con- 
tract, however minute or apparently immaterial in 
their effect, {7njjairs its obligation." Ogdcn v. Saun- 
ders, 12 Wheat. K. 213, 327; Green v. Biddle, 8 
Wheat. K. 1, 84. In some of the judicial expositions 
275] of this clause, it is to be regretted that an incautious 
qualification of this term ^^impairing^^ has crept into 
the language of the courts, for which I can find no 
warrant. In that bra.nch of the doctrine, which I 
shall have no occasion to examine, touching the dis- 
tinction between obligation and remedy, it is frequently 
said that the latter may be changed so that it does not 
materially impair the former. This epithet is vague, 
uncertain and calculated to confuse and mislead. A 
better guide is afforded us by Justice Woodbury, in 
Planters' Bank v. Sharp i&aL,(y How. U. S. R. 301, 
327, where he says: '*One of the tests that a contract 
has been impaired is, that its value has by legislation 
been diminished. It is not, by the constitution, to be 
impaired at all. This is not a question of degree, or 
manner, or cause, but of encroaching in any respect 
on its obligation, dispensing with any part of its force. '' 
The final term of this prohibitory clause requires 
neither explanation nor comment. The meamng of 
^'contracV^ is well understood, and is not open to dis- 
putation. It is only necessary to add, that it applies 
to all contracts, whether verbal or written, express or 
implied, executory or executed, whether between in- 
dividuals, corporations, States and individuals, or be- 
tween separate States. It may as well exist in the 
form of a grant, public or private, as of mutual under- 



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COUBT OF APPEALS OF VIRGINIA. 295 

takings. Whatsoever its character may be, it is se- 1868. 

cure from all legislative control or modification; and xermT 

the public faith is solemnly pledged, under all circum- — 

stances and in spite of all temptations, to uphold its v. 
. , ., Steams 

integrity. & als. 

In these comments on this clause of the constitution, 
I have ventured on no principle which is not conceded 
in all the cases in which this restriction has been judi- 
cally considered. I am not aware of any authority 
against the positions I have taken; nor have I so far 
run counter, in any respect, to the common concessions 
of the opposing counsel in this case. And yet I shall [276 
apply no other doctrine to the solution of our present 
enquiries. The variance and the dilHculty will, doubt- 
less, oc<3ur in determining the state of facts, to which 
this conceded law shall be applied. Nor Joes it seem 
to me there can be any serious discrepancy of views in 
the ascertainment of the real nature and effect of the 
contract in this case. Had it pleased the parties to 
corifine their dealings to the conveyance of the tene- 
ment on the one hand, and the taking of the negoti- 
able notes on the other, a very different question 
would exist as to the means of enforcing payment and 
as to legislative control over such remedies. In such 
an event it would have been in the contemplation of 
the parties that satisfaction, if not voluntary, could 
only be coerced by a resort to the courts. But the 
parties did not stop at this point. The vendor had 
not the security he wished. A supplementary, though 
distinct contract was entered into. It coQsists of the 
deed of trust of the 19th September, 1860. It has the 
dignity and solemnity of a sealed instrument. The 
appellant thereby conveys to Jas. M. Taylor and John 
Enders (trustees) his house and lot in trust to secure 
to John M. Gregory the payment of the sum of 



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296 COURT OF APPEALS OF VIRGINIA. 

1868. $13,299.55, due by ten negotiable notes, drawn by the 

Term7 grantor and payable to said Gregory, with the follow ing 

-z— ; — stipulation, viz: *'In the event that default shall be 

Tavlor r ' - , . j 

V. made in the payment of either of the above mentioned 

^&als!^ notes as they become due and payable, then the trus- 
tees, or either of them, on being required so to do by 
the said John M. Gregory, his executors, administra- 
tors or assigns, shall sell the property hereby con- 
veyed. And it is covenanted and agreed between the 
parties aforesaid, that in case of a sale, the same shall 
be made after first advertising the time, place and 
terms thereof fcr fifteen days in some newspaper pub- 
lished in the city of Richmond, and upon the follow - 
277] ing terms, to wit: For cash as to so much of the pro- 
ceeds as may be necessary to defray the expenses of 
executing this trust, the fees for drawing and record- 
ing this deed, if then unpaid, and to discharge the 
amount of money, principle, interest and charges, 
then payable upon the said notes; and if at the time 
of such sale any of said notes shall not have become 
due and payable, and the purchase money be suflScient, 
such part or parts of the said purchase money as will 
be sufficient to pay oflf and discharge such remaining 
note or notes shall be made payable at such time or 
times as the said remaining note or notes will become 
due, the payment of which part or parts shall be 
properly secured ; and if there be any residue of said 
purchase money, the same shall be made payable at 
such time, and be secured in such manner, as the said 
George A. W. Taylor, his executors, administrators 
or assigns shall prescribe and direct; or in case of his 
or their failure to give such direction, at such time and 
in such mauner as the said trustees or either of them 
shall think fit." Here it will be seen that the debtor, 
who now prays the benefit of the sta}' law, had con- 



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COURT OF APPEALS OF VIRGINIA. 297 

tracted with his creditor and his assigns for all the 1868. 
means and conditions whereby payment was to be TermT 
made, by a sale of the property. The deed estab- ~ j 
lished all the agencies for the execution of the trust. v. 
UnUke a mortgage, it contemplated no day in court ^j^ala. 
for foreclosure or redemption; nor sale under the di- 
rection and terms of the court, and by its oflBcers. 
But its design was to avoid the processes of the law, 
and to confide to impartial agents summary means of 
realizing the objects of the trust. Had the parties, 
by the nature of their agreement, as in case of a mort- 
gage, been thrown upon the courts for redress, they 
might have been amenable to the control which the 
Legislature possesses over judicial remedies; but when 
they have, by their own stipulations and for very ob- 
vious reasons, sought to preclude themselves from such 
a resort, the debtor cannot avail himself of this sus- [278 
pension of sale without altering the terms of his con- 
tract and violating the intentions with which it was 
entered into. What is a deed of trust ? It is a form 
of security which has, in our practice, superseded the 
mortgage, and doubtless for the very reason that it 
does not require the intervention of ihe courts. The 
introduction of trustees as impartial agents of the 
creditor and debtor, admits of a convenient, cheap 
and speedy execution of the trust, and involves none 
of the expenses and delays attendant upon mortgages. 
At an early period it met with some resistance from 
the court and the bar, though feeble and ineffectual. 
It was deprecated as an engine of oppression in the 
hands of the creditor. It was denounced as a pocket- 
judgment. Where the creditor was trustee, it lost its 
peculiar character, and was treated as a moitgage. 
Upon the false assumption that the trustee was but 
the agent of the creditor, it was urged in argument 
Vol. xviii — 38 



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298 COURT OF APPEALS OF VIRGINIA. 

18^. upon the court in the case of JI088 v. XorveU^ 3 Munf. 

Term7 ^^^N ^^^^ deeds of tiust were nothing but mortgages, 

-, , and could only be enforced by bill in equity. But 
V. this pretension of counsel seems to have received no 

A alg. countenance from the court. It is now a favorite se- 
curity for the payment of money, closely interwoven 
with the transactions of business, and firmly estab- 
Itshed by the practice of the country and the sanction 
of the courts. It has, doubtless, aided credit, facili- 
tated the collection of debts, and saved to the debtor 
the costs of legal proceedings. But if its convenience 
and advantages were less, and its evils overweighed 
these, there would be nothing in scch consideiations 
to loosen the bonds which the debtor has chosen to put 
upon himself. It is eminently a self-executing con- 
tract. All the instrumentalities are appointed by it 
for its final discharge according to the declared inten- 
tions of the parties. The deed now before us is Tay- 
279] lor's contract that, upon default, a sale of his property 
shall be had, under pi^escribed terms, for the payment 
of the creditor or his assigns, &c. The trustees ajid 
creditoi are purchasers for value. The latter has the 
privilege of requiring the former, under the stipulated 
terms and conditions, to make his money by a sale; 
and the grantor in the deed has obliged himself thereto 
by his own deliberate covenants. How, then, can 
that sale, when properly ordered, be suspended for a 
fixed term, without violating the intentions of the 
parties and destroying the obligation of their contract ? 
Shall it be said that a sale is a remedy^ that may be 
likened to legal process, and as such liable to be 
changed and modified by the Legislature ? If so, there 
is at least this material difference, that it is a remedy 
of the party's own appointment, and the very essence 
of his contract. It cannot be segregated from it and 



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COURT OF APPEALS OF VIRGINIA. 299 

treated as an extrinsic remedy within the pale of legis- 1868. 
lative jurisdiction. Strip from a deed pf trust this fea- Tem7 
ture of sale^ and it is meaningless. It loses its charac- ^^ ^^^ 
teristic and vital principle. The whole deed is one v. 
entire contract all whose covenants are inseparable, & als. 
and have a common relation and bearing upon the 
main cential design of the instrument, namely, the 
erforcement of the trust in pais without suit at law 
or in equity. But suppose this version is wrong, and 
that you may separate it into — 1. A lien for the se^ 
curity of the debt; and 2. A remedy for its collection 
I am still at a loss for any real, substantial analogy 
to the Judicial remedies, which are exempted, in a cer- 
tain sense and with certain qualifications, from this 
prohibitory clause. The one arises out of the con- 
tract itself; the others are the offspring of the legisla- 
tive will, and pertain to the judicial system of the 
State. From this analysis ot this instrument, I infer 
with confidence that there is no foundation for the 
argument of the appellant's counsel, that this deed is 
not a contract, but nothing but a remedy, in the mean- 
ing of that controverted and indeterminate doctrine [280 
as to the limits of legislative power over remedies, as 
distinguished from the obligation of contracts. The 
authorities that were cited in support of this position — 
as that the recital in a deed of trust does not change 
the dignity of a debt thereby secured, and that there 
are well established principles of equitable jurisdiction 
over the execution of such deeds — do not tend to prove 
that these instruments are regarded or treated as 
remedies, and divested of the attributes ot contracts. 
It is very true, as remarked by Justice Johnson in 
Ogden v^. Saunders, that '*in an advanced state of 
society, all contracts of men receive a relative and not 
a positive interpretation. The State constru'^s them, 



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300 COURT OF APPEALS OF VIRGINIA. 

1868. the State applies them, the State controls them, and 

Term.^ the State decides how far the social exercise of the 

'~^1[^ rights which they give over each party can be justly 

V. asserted." This jurisdiction, therefore, attaches to 

& als. them as contracts ; and it is a mistake to suppose that 

such judicial cognizance is at all predicated of them 

as remedies, or justified on any such pretext. 

Here, by the special terms of the deed, and accord- 
ing to the intention of the parties, the sale should 
have taken place as advertised, on the 4:th May, 1866; 
but the law steps in and postpones it by one act to 1st 
January, 1868, and by another to 1st January, 1869. 
Does not this intervention plainly defeat the agr^- 
ment of the parties and the obligation of the contKict ? 
It was admitted in argument, that if the Legislature 
had undertaken to protract the maturity of the notes 
and the happening of the default, it would have been 
a usurpation of authority and an infraction of the con- 
stitution; is it less so when the law arrests the parties, 
and withholds them, or either of them, from reaping 
the fruits of their agreement for a sale ? If a material 
stipulation be defeated, it surely could not be said 
281] with any plausibility that the obligation of the rx)n- 
tract was not impaired in the meaning of this restric- 
tion. 

I have thus endeavored to show that this case is a 
peculiar one, does not involve the intricate doctrine 
relating to legislative changes of judicial proceedings 
and processes, mesne and final, and should be decided 
by a practical interpretation of the constitution, and 
the ordinary rules of reasoning. The authoiity of 
adjudicated cases can only be brought to our aid 
through analogy, and the application of the reason- 
ings employed in them. Nevertheless,, it is well to 
examine how far the positions I have taken are forti- 



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COURT OF APPEALS OF VIRGINIA. 301 

fied by authority. The case of Pool v. Young^ 7 1868. 
Monr. R. 538, is very pertinent to this case. It was xerm^ 
there made a question, whether the relief laws of "^Tj — 
Kentucky, giving an indulgence of two years unless v. 
bank paper was leceived in payment, and forbidding ^^sfalT^ 
a sale for less than three-fourths of the appraised 
value, could defeat the stipulations of a prior mort- 
gage, empowering the mortgagee, on default of pay- 
ment, to sell the estate for ready money : and it was 
held that the chancellor was bound to specifically en- 
foice the contract by a sale for cash in hand^ whether 
those statutes were regarded as constitutional or not; 
and further, that such stipulations of the parties fixing 
the remedy for a breach of their contract must govern 
the chancellor as the law of the case. The reasoning 
of the court is so apposite to our present investiga- 
tions, that I cannot refrain from submitting the fol- 
lowing copious extract froir it: **If this case was 
not one peculiarly circumstanced, (as it really is,) it 
would be suflScient for us to refer to the cases of Lap%- 
Uy V. Brashear and Blair v. Williams^ 4 Litt. K. 
34-47, to prove that, according to the settled course 
of decision in this court, the plaintiff in error would 
not be entitled to the credit of two years secured by 
the act of Assembly, because that the act in this re- 
spect is in contravention of the constitution of the [282 
United States. But it is not necessary to rest on 
these decisions. They show that the bare understand- 
ing that the contract, when made under existing law, 
includes that law in its composition, precludes the ope- 
ration of such an act; but here there is no necessity 
of implying such an understanding, for there is an 
express agreement between the parties regulating and 
fixing the remedy betweeri them in the mortgage, if 
the estate should be sold for the purpose of raising 



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302 COURT OF APPEALS OF VIRGINIA. 

1868. the money due. Nor is it necessary to enquire, 
Term^/ whether the act requiring estates to be valued, and if 

— — j — they should not bring three-fourths of that value, di- 
V. recting them not to be sold at all, comes within the 
&a\B, principles recognized in Blmr^ dtc. v. WiUiains and 
LapBley v. BrasJiear^ and is therefore unconstitutional 
so far as it operates upon contracts made before its 
passage. For the stipulation of the parties in this in- 
stance meets that case, and excludes the application 
of the valuation act. In the condition to ttiis mort- 
gage is the following express stipulation: 'If the said 
Pool shall neglect or refuse to pay any or all of the 
sums aforesaid as they become due to the said Young 
then said Young may, by giving twenty days' notice 
at the public houses in the town of Winchester, in 
writing, proceed to sell to the highest bidder, /br 
ready money ^ from time to time, so much of the said 
land as will meet all deficiency of consideration money, 
with interest and all costs; and the balance, after all 
is paid, shall be paid over to said Pool. * Kow it will 
be seen that applying the act of indulgence by a sale 
of two years, unless bank paper was taken, or the 
valuation act either, will expressly and essentially 
alter and change these stipulations between the par- 
ties. Either of these acts incor])orated with and bear- 
ing upon their contract would make it read that, in- 
stead of selling for ready money. Young should sell 
for bank paper at a credit of three months, and for 

283] money at the end of two years; and if the property 
should not sell for three-fourths of its appraised value 
in the opinion of commissioners appointed for that 
purpose, he should not sell at all. To admit a subse- 
qutsnt act of the Legislature thus to modify and essen- 
tially vary the written stipulations of the party, 
would concede to the Legislature a power to make a 



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COURT OF APPEALS OF VIRGINIA. 303 

new contract and destroy the old altogether — a power 1868. 
not assumed by the letter of the act itself, for it only Tera7 
professes to operate on general remedies. The stipu- ~ j 
lation of the parties applies to the remedy and regu- v. 
latesit; fixes its terms and its credit and what is to &als. 
be taken in payment, and provides for an uncondi- 
tional sale without any fixed value, except so much 
leady money as the estate would bring. It was com- 
petent for the parties to make such a contract. Theie 
was no law forbidding it when it was made. It was 
then both fair and legal. How, then, can a Legisla- 
tore change the words, sense and substance of the 
agreement ? It is true that Young did not himself 
attempt to execute this stipulation without the aid of 
a court of equity; but this was to the benefit of his 
adversary, who now complains, &c. 

This extract demonstrates that that case is an author- 
ity directly in point, and was decided by the course of 
reasoning which I have pursued. Applying its doc- 
trine here, I am authorized to contend that this act 
of March 2, 1866, makes a virtual interpolation in the 
contract, by which it adds a new condition, suspend- 
ing the sale beyond the period of default as fixed by 
the parties. 

I have also found another case, very closely approxi- 
mating this, as far as I can judge by the abstracts of 
it. I regret I have not access to the report of it, and 
must content myself with a brief statement of it, as 
derived from treatises upon this subject. It is a deci- 
sion from Pennsylvania, and is thus quoted in the 
American Law Register 1863-4, N. S. p. 107: 
'*Where the parties to a contract expressly include in [284 
it the legal remedy by which it is to be enforced, the 
Legislature cannot pass any law to change the reme- 
dial process agreed upon. The defendant having ex- 



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304: COURT OF APPEALS OF VIRGDiriA. 

1868. pressly wai\?ed all stay of execution, an act giving a 
Term!*^ stay in all such cases was held unconstitutional as to 

~ — — such contract." Billm^yer v. Evans^ 4 Wright's R 
V. 324. It is somewhat more fully stated in the recent 
&als!^ treatise of Metcalf on Contracts, p. 334, as follows: 
^'A statute of Pennsylvania granted a stay of execu- 
tion under certain conditions on all judgments cr 
debts upon which stay of execution had been or might 
be waived by the debtor in any original obligation or 
contract upon which judgment had been or might 
thereafter be obtained. In a case in which debtors, 
by a sealed instrument, authorized an entry of judg- 
ment against them, Svithout any stay of execution 
after the day of payment,' it was held that this was 
a release of their right to a stay of execution, and be- 
came a part of their contract, and that the Legislature 
could not constitutionally authorize a stay of execution 
beyond the limit of that contract." S. C. 40 Penn- 
sylvania State R. 324. 

It seems to me that the parties here, by agiedng 
upon agencies exterior to the courts for final satisfac- 
tion, as effectually precluded any inferences therewith 
by law as if they haa expressly bound themselves not 
to take aavantage of any subsequent legislation in 
conflict with their express understanding. The case 
would not be at all stronger if the parties, by ref®- 
ence to past or anticinated legislation, had stipulated 
that it should in no wise affect their agre^nent 
They had a constitutional guarantee for the exempti<m 
of their contract from legislative infraction; and- % 
positive covenant on their part to that end would ha^ 
been merely supererogatory, and would have imparted 
no additional sanction to the contract. It is on lbs 
gi'ound I invoke the authority of that case to sustaa 

^Sb'] the views I have advanced. I am further sustained 



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OOUBT OF APPEALS OF VIRGINIA. 305 

in this position by the language of the Supreme Court 1868. 
in McCracken v. Hayward, 2 How. U. S. R. 608: '^Tera? 
'^If the defendant," says Justice Baldwin, ^*had made ~ — j — 
such an agieement as to authorize a sale of his v. 
property, which should be levied on by the sheriff, for & als!^ 
sach price as should be bid for it at a fair public sale 
on reasonable notice, it would hate conferred on the 
plain tiflF a right which the constitution made inviola- 
ble; and it can make no difference whether such right 
u conferred hy the terms or the law of the contract,'^'* 
In seeking for a practical test to ascertain whether 
a law pertains to the remedy or obligation of a con- 
tract, I have not found a better one than is furnished 
in a case cited and relied on by the appellant's coun- 
sel — Morse v. Goold <& als.j 1 Ken. R. 281. In that 
case, an act exempting certain property from sale on 
execution for debts contracted prior to its passage, 
was held to be constitutional because it modifies the 
remedy, and neither destroys it nor substantially im- 
pairs its efSciency. Denio, J., in delivering the 
opinion cf the court, points to this as a guide to de- 
termine the action of the law upon the obligation ; 
"The most obvious method by which a contract may 
be impaired by legislation would be the alteration of 
some of its terms or provisions, so that, assuming the 
vaUdity of the la\^ , the parties would be relieved from 
something which they had contracted to do, or would 
be obliged to do something which the contract did 
not originally require." Adopting this test, is there 
my question that Taylor is relieved by this law from 
Jie sale of his property, for which he had covenanted, 
ind Gregory's assignee obliged to wait for his money 
beyond the time agreed upon ? 

The deed of trust, as I have shown, is so peculiar 
o this State that the foregoing are the most sti iking 
Vol. XVIII — 39 



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306 COUKT OF APPEALS OF VIRGINIA. 

1868. illustrations and confirmations of my views that 1 
TennJ have found among the numerous adjudications on the 
, — subject that I have examined. But this instrument is 
V. so nearly akin to a mortgage, differing only in the in- 
& als. tervention of trustees, and its capacity to be executed 
286J without suit, we may consider it as ruled by the lead- 
ing case of Branson v. Kinzie^ 1 How. U. S. II. 311. 
It was there held, that a State law passed subse- 
quently to the execution of a mortgage, which de- 
clares that the equitable estate of the mortgagor shall 
not be extinguished for twelve months after a sale 
under a decree in chancery, and which prevents any 
sale unless two-thirds of the amount at which the 
property has been valued by appraisers shall be bid 
therefor, is within the clause of the constitution of 
the United States prohibiting a State from passing a 
law impairing the obligation of contracts. 

There was a peculiar feature in this mortgage, 
whereby the mortgagee, on default of payment, was 
authorized to enter on the premises and sell them at 
public auction, and to retain out of the money thus 
raised the amount cue, and to pay the overplus, if 
any, to the mortgagor. This might seem to appioach 
more nearly to the case of our trust deed; but inas- 
much as a couit of equity would view with jealousy 
the action of the creditor in such a position, and in- 
tervene on a reasonable pretext to restrain him from 
damaging his debtor, this feature of the contract was 
only incidentally noticed. It is thus treated in the 
opinion of the court: *'In the case before us, the 
conflict of these laws with the obligations of the con- 
tract is made the more evident by an express cove- 
nant contained in the instrument itself, whereby the 
mortgagee, in default of payment, was authorized to 
enter on the premises and sell them at public auction. 



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COUBT OF APPEALS OF VIRGINIA. 307 

and to retain out of the money thus raised the amount 1868. 
doe, and to pay the overplus, if any, to the mortga- Term7 
gor. The difiference between the right annexed by "^'i 
law and that given by this covenant consists in this, v. 
that in the former case, the right of sale must be ex- & ale 
ereised under the directions of the court of chanceiy [^^'^ 
upon such terms as it shall prescribe, and the sale made 
by an agent of the court; in the latter, the sale is to 
be made by the party himself. But even under this 
covenant, the sale made by the party is so far subject 
to the supervision of the court that it will be set aside 
and a new ordered, if reasonable notice is not given, 
or if the pioceedings be regarded in any respect as 
contrary to equity and justice. There is, therefore, 
in truth, but little material diflfeience between the 
rights of the mortgagee, with or without this cove- 
nant. The distinction consists rather in the form of 
the remedy than in the substantial right, &c. But I 
submit, had the sale been devolved, as under our trust 
ileed, upon a disinterested third party, regarded as 
the agent of both debtor and creditor, this covenant 
would have been deemed by the court deciding this 
case, if not conclusive of it, at least far more signifi- 
cant and decisive. But tho gist of this decision was 
the incompetency of the Legislature to enlarge the 
estate of a mortgagor after a decree of foreclosure, or 
to clog the sale with conditions that might suspend or 
defeat it. This, too, was where the remedies sprung 
from the courts, and were necessarily ordained by the 
Legislature; and in this respect, it was materially dis- 
similar from the case at bar, where the parties had 
instituted their own remedies by pri\ate contract and 
had avoided all recourse to law. 

The principle of this decision was extended to the 
case of an execution in McCracken v. Hay ward ^ 2 



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308 COUBT OF APPEALS OF VIKGINIA. 

1868. How. U. S. E. 608. It was decided in that case, 
T?rmL^ that a law of Illinois, forbidding a sale under execu- 

~ , tion unless the property brought two-thirds of its 

V. valuation according to the opinion of three house- 

&al8. holders, was unconstitutional and void. These two 

288] cases have been followed and approved by a long 
series of decisions of the Supreme Court. GanilyU 
lessees v. Ewing^ 3 IIow. U. S. R. 707; Plunteri 
Bank v. Sharp, 6 How. U. S. R. 301 ; Curran t. 
State of Ark^ansas, 15 How. U. S. R. 319; Howard 
V. Bughee, 24 How. U. S. R. 461; Hawthorne v. 
Califf, 2 Wall. U. S. R. 10. From these authorities, 
and nearly in their language, I deduce the settled role 
of that court to be this: That wherever a subsequent 
law aflfects to diminisii the duty or to impair the 
right, it necessarily bears on the obligation of the 
contract in favor of one party to the injury of the 
other; hence any lavr which, in its operation, amounts 
to a denial or obstruction of the rights accruing by a 
contract, though professing to act only on the remedy, 
is directly obnoxious to the prohibition of the consti- 
tution ; and wherever a sale is required by the terms 
or law of a contract, no law can obstruct or clo^ it 
with new conditions without affecting the obligation 
of the contract; for it can be enforced only by a sale, 
and the prevention of such sale is a denial of a right 
We are bound by these decisions in the interpretation 
of the constitution of the United States, and need not 
go further for authority. But the preponderance of 
authority from the courts of our sister States is to tiie 
same effect. State v. Carew, 13 Richardson R. 49S; 
{Ex parte G. F. Pollard and Ex parte M. Z. Woods^ 
from Alabama, and the decision of Judge Yerger, of 
Mississippi, in Sadler v. Whittington, cfrc, affirmed 
by the High Court of Errors, reported in newspapers) - 



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COURT OF APPEALS OF VIKGINIA. 309 

JonM T?. Crittenden^ 1 Car. Law Repository 385; 1868. 

Townsend v. Tavmsend^ Peck. K. 1; Lapsley v. Term. 

Brmhear. 4 Litt. K. 47, and Blair v. Williams. Id. ^ , 
' ' ' Taylor 

34. The cases of McCarmick v. Rousek^ 3 Am. L. v. 
Keg. K S. 93 (Iowa); Mede v. Hand^ (Dist. Ct. of &al8. 
Kansas) 5 Am. L. Reg. 82, and Baxirribach v. Bade^ 9 
Wisconsin R. 559, all proceed upon the distinction be- 
tween remedy and obligation^ which I have shewn to 
be irrelevant to the case in hand; and concede the [289 
authority of Bronson v. Kinzie <& als. In Hkc man- 
ner, the case of Chadwick v. Moore^ 8 Watts. & Serg. 
E. 49, so much relied on by the appellant's counsel, 
proceeds upon the san:e ground. Chief Justice Gib- 
son sustains the constitutionality of a Pennsylvania 
statute suspending for a year a sale under execution 
where two-thirds of the appraised value was not bid, 
OD the ground that the suspension was for a limited 
time, and distinguishes it frora McCracken v. Hay- 
ward^ because the statute of Illinois had no such limita- 
tion; its denial of execution was perpetual, except on 
terms not originally contemplated; and, therefore, it 
not merely impeded the remedy, but changed the con- 
dition of the right. There was a peculiar considera- 
tion, however, which swayed the mind of this able 
judge, and was stated by him in these words: *'The 
case is by no means a clear one, and as the decision 
of it involves the validity of other acts of the same 
stamp, it is worthy of being brought before the Su- 
preme Court of the nation. To put the case in train 
for that, it would be necessary for us to sustain the 
statute at all events; for the appellate jurisdiction of 
that ccurt extends no further than to cases in which 
the judgment is in favor of the legislation or authority, 
to which the Federal constitution or an act of Con- 
gress is supposed to be repugnant; in other words, it 



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310 COURT OF APPEALS OF VIRGINIA. 

1868. extends no further than is necessary to maintain the 
Term7 supremacy of Federal legislation." 

~ j I have thus reviewed and cited the leading decisions, 

V. Federal and State, upon the doctrines I have been dis- 
&al8. cussing, and I cannot but regard that the decided 
weight of authority is on the side of the appellee in 
this controversy. But another view of this subject 
has been submitted in the two reports of the House 
C'^mraittee of Courts of Justice, one of which consti- 
tutes a part of this record; and the other was given us 
in the argument. They are an authoritative exposi- 

290] lion of the views of the Legislature in the passage of 
this stay law, and therefore demand a special notice. 
Their theory, as I have already said, is original, and 
is not found in any of the numerous adjudications upon 
this subject. It puts the legitimacy of such legislation 
upon analogy to the authority of courts of law and 
equity to restrain the creditor in his remedies in cer- 
tain given cases; as for instance, where a sheriff is re- 
quired to return, '*no sale for want of bidders;" where 
between vendors and purchasers, ^*time is not of the 
essence of the contract;" where courts of equity inter- 
vene to arrest a sale till the amount and priorities of 
rival incumbrances are settled, and a cloud of title re- 
moved, and to set aside sales for inadequacy of price, 
to re-open biddings, &c. — in all which cases the credi- 
tor is delayed. It is contended, that '4t would be an 
anomaly to leave the courts free, by what is mere ju- 
dicial legislation, to impair the obligation of contracts 
in this feature of time, and yet to deny this power 
within the same proper limits of principle to the legi- 
timate possessors of all legislative power, the Legisla- 
tures themselves. To enact this stay in the collection 
of debts is, says the committee, '*but doing: that broad- 
cast where a broadcast necessity exists, which the ju- 



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OOITBT OF APPEALS OF VIRGINIA. 311 

diciary would do substantially in the individual cases 1868. 
as they came before it;" and further, on this principle Tem7 
of legislative power, ^'to do broadcast what courts do "^". — 
in individual cases," the committee seek to justify this v. 
stay in the collection of debts **by these examples of &^^ 
the extent to which judicial tribunals will delay credi- 
tors and suspend their legal remedies to prevent a sac- 
rifice of the debtor's property." This is a literal and 
concise statement of the plausible and ingenious de- 
fence that has been made of this law by this able com- 
mittee. With entire respect and deference to them, 
I must be permitted to say that, in my opinion, there 
are three distinct fallacies in this reasoning, any one 
of which would subvert it : 

First — It is not true, according to my humble con- [291 
ception, that the jurisdiction or action of the courts in 
these cases at all deserves the character imputed to it, 
oi'^mere judicial legislation to impair the obligation 
of contracts in this feature of time.''^ So far as I 
know, it has never been placed on that ground. It 
existed, as the committee acknowledges, when the con- 
stitution was adopted, and ''must have been familiar 
to its framers." No eflfort was made to restrain it; 
and hence the inference is irresistible, that no griev- 
ance of the sort was imputed to the courts. I have 
heretofore endeavored to show that this judicial cog- 
nizance is predicated in all cases of the faculty of the 
ccurts to administer the remedies which the State or- 
dains; and that all contracts are, through necessity, 
(to use the language of Justice Johnson in Ogden v. 
Saunders^ already quoted,) '^ construed ^ applied and 
controlled hy the St^te,^^ through the medium of its 
courts. The principles of equity, as administered 
from the earliest period, will arrest the literal enforce- 
ment of a contract, when from the causes assigned — 



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312 COUKT OF APPEALS OF VIKGLNIA. 

1868. as for a cloud of title, or conflict of encumbrances, 
Term!^ &c. — it becomes imconscionable, and is subversive of 
-, , — the true intentions of the parties. And, this, I must 
V. say, is the first time I have heard this wholesome juris- 
& aJs.^ diction of the courts characterized as '* judicial legisla- 
tion to impair the obligation of contracts in this matter 
of time." 

Secondly — It is not true, that because the courts can 
administer such relief in certain prescribed cases, the 
. Legislature can be justified hy the analogy to assume a 
wider range by law. It would seem that the fact that 
the courts can relieve in such cases, instead of justify- 
ing the Legislature in such a questionable policy, would 
be a strong motive to restrain such legislation. Inas- 
much as some of these cases of hardship are relievable 
by the courts, the mischief apprehended by the law- 
makers would, to that extent, be abridged. But the 
292] judicial and legislative functions are, in truth, too dis- 
similar to justify such an analogy; the courts act upon 
individual cases and upon proofs and pleadings; the 
inhibition upon the Legislature proceeds, in a great 
measure, from its incapacity to act in the premises 
otherwise than broadcast. 

Thirdly — It cannot be said, with propriety, 'Hha^ 
the Legislature may^ where the necessity for such inter- 
ference exists, do broadcast what courts do in indivi Ival 
cases.'^^ The very contrary is true. II the assertion 
was narrowed to the claim to compass by la%\ what 
courts do in individual cases, the most careless en- 
quirer would be startled by such a pretension, and by 
the actual obliteration it occasions, of .the dividing line 
between these departments of the government. But 
the offence is greater when this pretension is so en- 
larged as to embrace the alleged power to ^'do broad- 
cast what the courts do in individual cases,'*'* It 



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COUfiT OF APPEALS OF VIRGINIA. 313 

might seem enough to object that the action of the 1868. 

Legislature can never correspond with the action of the Term?^ 

courts. The latter act in modes unknown to the for- "V"; 

Taylor 

mer; and it would be highly improper, if not a usur- v. 
pation, for the Legislature to attempt to do what ^'the & als. 
courts do in individual cases." But what propriety 
is there in saying that the Assembly is doing only 
hroadcasi by a universal suspension of remedies what 
the courts do in specified instances ? In the one case, 
reUef is given because of peculiar circumstances, which 
will not allow a mere literal fulfillment of a contract 
to the oppression of one party, and against the pre- 
sumed pretensions of both; and in the other, no atten- 
tion is bestowed upon such circumstances but a broad- 
cast dispensation, given to all for a limited time from 
the obligation of their contracts. For these reasons, 
I find myself unable to concur with the committee in 
their conclusions, so far as they involve the limited 
enquiry I have made into this particular provision 
affecting sales under deeds of trust. 

I have now examined the questions before us in all [293^ 
the aspects and upon all the arguments of counsel 
that it is material to consider. The conclusions to 
which my reasoning conducts is too apparent to be 
announced. It only remains for me to notice a con- 
sideration that was pressed upon us with much feeling 
by the counsel, who concluded the argument for the 
appellant; and I do this to disclaim any insensibility 
on my part, or that of my associates on this bench, 
to this appeal. I mean the allusion that was made to 
the distresses that might ensue upon a decision against 
this law, unlesn counteracted here, as it has been else- 
where, by the military authorities. That appeal has 
not been without its legitimate influence upon us. It 
has subserved the only proper purpose for which it 
Vol. XVIII — 40 



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314 COURT OP APPEALS OF VIRGINIA. 

1868. could have been designed, and that was, to persuade 
Term7 ^^ to the fullest scrutiny, the most patient investiga- 
^ , tion, and the most careful reflection touching every 
V. branch of this important enquiry. Farther than this, 
& als. ^* could not avail with this tribunal. No matter what 
consequences may follow, nor what action may be 
taken by the military authorities in our present un- 
settled state, the apprehension of them can not, and 
ought not to, deter us fiom the fearless discharge of 
our responsible duties. But it should not be forgot- 
ten, that there are opposite evils of perhaps greater 
magnitude than those which have been so feelingly 
depicted and deprecated. It has already been se^ 
how these high constitutional sanctions of private right 
have no other means of vindication but by the jidi- 
ciary . Is it not, then, worth while to consider on this 
side of the question what deplorable calamities, moial 
and political, might attend the surrender of this last 
bulwark by its sworn defenders through a subserviency 
tc temporary interests or passions; or a timid disposi- 
tion to sacrifice convictions to motives of expediency ? 
No greater or more enduring misfortune, it seems to 
me, could befall a people, blessed with a constitutional 
294] form of government, than a sacrifice of any of its fun- 
damental guaranties by that department of its service 
which, by the nature of its organization and functions, 
has ever been counted on to uphold with a stem in- 
flexibility private rights and public morals. Great as 
might be the sufferings growing out of a judicial sen- 
tence against this law, and wide-spread as might be 
the ruin of individuals and the sacrifice of property 
under it, they are not, for one moment, to be com- 
pared with the evils likely to attend the demoralizing 
example of a judiciary seeking, however covertly, 
popular favor by some skillfully disguised compromise 



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CX)UKT OF APPEALS OF VIRGINIA. 315 

of its highest and most imperious duty — that of dis- 1868. 
daining every pretext, however plausable, and with- Teim7 
standing every temptation, however strong, to betray, ~ j — 
in the slightest particular, the requirements of the v. 
State and Federal constitutions. Such a spectacle of ^ ^ig, 
weakness and subserviency upon the bench, if it did 
not shock, would incurably deprave public sentiment; 
destroy confidence in the administration of the laws; 
spread corruption through other branches of the 
public service, and fearfully depress the hopes of the 
friends of constitutional freedoir. And it really 
seems to me that it would only be due to that gra- 
cious order of providence, which overrules evil for 
good, if these pernicious effects should, indeed, stop 
here, and not descend to every walk of life and all 
orders of men, spreading abroad the contagion of dis- 
honesty, weakening respect for law, corrupting the 
commerce and debauching the morals of society. In 
\iew, therefore, of all the considerations that bear 
upoD this case, and the responsibilities that grow out 
of it, I am constrained, though with diifidence, to fol- 
low my clear and undoubting convictions, which lead 
me to affirm the decree below. 

The other judges concurred in the opinion of Rives ^ 
J. 

Decree affirmed. 



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316 COURT OF APPEALS OF VIRGINIA. 



_^^^- Anderson v. The Commonwealth. 

January 

Term. 
^**^^] February 20. 

1. The 9. 93 of the act of February 15th, 1866, for the assessment of 

taxes, embraces express companies chartered by the State of 
Virginia ; and the present stockholders are personally liable 
for taxes due to the Commonwealth from the company in- 
curred while they were stockholders. 

2. Though the charter of an express company did not make the 

stockholders personally liable for the debts of the company, 
the said assessment act passed subsequent to the charter, has 
so far modified the charter as to make them personally liable. 

3. The charter reserving to the General Assembly the power to 

modify or repeal the charter, this was effectually done by the 
act for the assessment of taxes ; and it is not in violation of 
i 16, article iv. of the constitution. 

4. Qr.ERE : Whether i 93 of the said assessment act, makes the 

stockholders of an express company liable for taxes due frwn 
the company primarily, or only as guarantors? 

In January, 1867, the Auditor of Public Ac<x)uiits 
gave a notice to Charles \V. Purcell and Joseph R. 
Anderson, that on the 12th of February, 1867, he 
would move the Circuit Court of the city of Richinoml 
for a judgment against them for five hundred and six- 
teen dollars and seventy-two cents; thot being the 
amount of one j)er cent, of the gross receipts of the 
Xational Express and Transportation Company for 
296] doing business in this State, from the 1st of January, 
1S66, to the 1st of September of the same year; and 
the amount due to the Commonwealth from thesaiJ 



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COTJET OF APPEALS OF VIRGINIA. 317 

ccmpany for taxes en their business; and for which 1868. 

they, the said Purcell and Anderson, were peisonally Term? 

liable as stockholders in the company. T"l 

^ " Anderson 

The case came on to be heard on the 29th of No- v. 

The 
vember 1867, when the court rendered a judgment in common- 

favor of Purcell, and against Anderson, for the wealth. 
amount claimed, with interest and costs; and he 
thereupon obtained a writ of error to the judgment 
froin a judge of this court. 

The bill of exceptions taken by Anderson to the 
judgment of this court, stated the facts. The only 
proof that Anderson was a stockholder of the com- 
pany at the time these taxes fell due, was a letter of 
his introduced by the Commonwealth, addressed to 
the Auditor upon receiving the notice, in which he 
says: ''I deny my liability to pay the debts of the 
company. Nor can I see why I, who have paid every 
dollar of the requisitions made upon me, or any other 
one or two stockholders, should be singled out for 
persecution" A question was made in this court 
whether there was proof that the taxes had not been 
paid by the company; but this court was of opinion, 
that this sufficiently appeared from the evidence of 
Poitiaux, who had been the cashier of the company, 
when they should have been paid. 

iV^. Iloward and Macfarland^ for the appellant. 
TJhe Attorney General^ for the Commonwealth. 

JoYi^Es, J. The first ground taken in thje petition 

is that the 93d section of the assessment act of 1866, 

on which this case depends, was not intended by the 

Legislature to apply to express companies incorporated 

by this State. 

I do not think this position can be maintained. The 



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318 COURT OF APPEALS OF VIRGINIA. 

1868. language is general, and without restriction. It pur- 
Term7 P^rts to embrace "every express company." The 

—j 14th section of the act imposing taxes, passed at the 

V. same session, imposes a tax of one per cent, on the 
Common- g^^ss earnings of ''every express company," to be 
oQTi^* ascertained and paid in the mode prescribed by the 
93d section of the assessment act; section 15 impose 
a tax on the dividends of ''savings banks and insur- 
ance companies incorporated by this State;" section 
16 imposes a tax on "foreign insurance companies;'' 
section 17 imposes a tax on banks "incorporated by 
this State." The 93d section oi the assessment act, 
like the 14th section of the act imposing taxes, applies 
to "every express company;" the 94th applies to 
savings banks and insurance companies "incorporated 
by this State;" and the 95th applies to insurance com- 
panies "not incorporated by this State." Thus it 
appears that when a distinction was intended between 
companies incorporated by this State and other com- 
panies of like kind, either in respect to the mode of 
taxation, or in respect to the mode of assessment and 
collection, the distinction was made in express terms. 
The 14th section of the act imposing taxes, and the 
' 93d section of the assessment act, refer to each other, 
and are parts of the same system. Every express 
company is taxed by the former, and every such com- 
pany so taxed is required by the latter to make reports 
to the Auditor of its gross earnings, and to pay the 
tax, at the time and in the mode prescribed. Every 
such company is made liable to a penalty for failure 
to report its earnings and to pay the tax. And the 
stockholders of every such company are made person- 
ally liable for the tax and for the penalty. "We hare 
no more authority for supposing that the Legislature 
intended to exempt any express company from any 



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COURT OF APPEALS OF VIRGINIA. . 319 

one of ttiese provisions, more than from any other one. 1868. 

All were to be taxed, and the taxes of all were to be TemT 

collected in the same way. We cannot interpolate T^ 

*^ ^ Anderson 

exceptions founded on inference and conjecture, where v. 
the intention of the Legislature is expressed in clear Common- 
and unambiguous terms. ^^og'ft 

If the Xational Express Company was not embraced 
by the 93d section of the assessment act, I do not see 
how it could be held to be embraced by the 14th sec- 
tion of the act imposing taxes. If it was not embraced 
by the latter section, then, if taxed at all, it must 
have been taxed od its capital under section 58 of the 
assessment act, as contended in the argument. The 
result of this would be, to subject an infant enterprise, 
established under authority of this State, and doing 
little business, to much more onerous taxation than 
Tas imposed on others which had been long estab- 
Ushed. It would be taxed on its entire capital wher- 
ever employed, while they would be taxed only on 
their earnings from business done in this State. If 
tnis company was embraced by section 14 of the act 
imposing taxes, and was not embraced by section 93 
of the assessment act, then a tax was imposed, and no 
means were provided for ascertaining its amount or 
enforcing its payment. 

It has been strongly urged upon us, that to hold 
that the National Express Company was embraced by 
the 93d section of the assessment act, would impute 
to the Legislature a singular inconstancy of purpose, 
since it had only two months before granted a charter 
to that company, in which no personal liability was 
imposed on the stockholders, amending a former 
charter, by which such a liability was imposed. And 
it was contended that no good reason can be assigned 
why such a discrimination should have been made be- 



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S20 COURT OF APPEALS OF VIRGINIA. 

1868. tween the stockholders of a domestic express compaDT 
Term.' *^^ those of other domestic corporations. 

"~T It is enough to say, in reply to these suggestions, 

V. that such was the pleasure of the Legislature. Stet 

Common- i^^^ '^(^ttone voluntas. At most, these .suggestions 
wealth, could only weigh in turning the scale, if the intention 
was doubtful. 

299] But I do not see the force of either suggestion. 

The act incorporating the National Express CompanT 
was passed on the 12th December, just one week after 
the commencement of the session, and no doubt long 
before the assessment bill had been considered, or 
even prepared. The policy of holding the stock- 
holder's of such companies personally liable for the 
taxes imposed on them had, as we were told in the 
argument, prevailed under an act passed by the Leg- 
islature Avhich sat in Eichmond in 1863, and which 
continued unrepealed to the end of the war; and the 
Legislature reserved the right to alter the charter at 
pleasure. When it came to pass the assessment act, 
it applied to this express company, and to all others, 
the policy that had previously prevailed. There was 
one obvious reason for providing a special security 
for the taxes of such companies. They do their busi- 
ness by means of railroads and steamboats belonging 
to others, having very little visible property of their 
own. The expediency of such a provision seems to 
be illustrated by the present case. 

It was further contended that the imposition of such 
a personal liability on the stockholders, when the 
legal effect of the charter was to exempt them from 
any personal liability for debts of the company, was 
a violation of the contract between the stockholders 
and the State. 

By the last clause of the charter, it was made sub- 



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COURT OF APPEALS OF VIRGINIA. 321 

ject to modification or repeal, at the pleasure of the 1868. 
General Assembly. Sess. Acts 1865-6, p. 381. The ^tI^ 

stockholders, by accepting the charter, assented to T~-z 

that reservation as a constituent part of their contract. v. 
Create Y, BahcocTc^ 23 Pick. K. 334; Durfee v. ^M^Common- 
Colony and Fall River R, R. Co., 5 Allen's E. 230. ^^^^h. 
And it has been expressly held, that the Legislature 
njay, by virtue of such a reservation, provide by a 
subsequent statute, that stockholders shall be person- 
ally Uable for all debts of the corporation incurred [300 
after its passage. Stanley v. Stanley^ 26 Maine E. 
191; Sherman v. Smith, 1 Black's U. S. E. 587. 
Stockholders who become such, or continue to be such, 
after such a liability has been imposed, must be under- 
stood as agreeing to incur it. In this case the act 
imposing the personal liability was passed on the 15th 
day of February, 1866, and the first payment of taxes 
for which the plaintiff in error was held liable, became 
due on the 15th day of March, 1866. In the case in 
26 Maine, the objection was taken, as it was in this 
case, that the reserved power of amendment must be 
exercised by as special act for that purpose, and that 
the liability of the stockholders could not be altered 
by a general law ; but it did not prevail. In the case 
in 1 Black, the personal liability was imposed by the 
constitution ol the State, and by a general law appli- 
cable to all banks. 

I do not think that the provision in question is ob- 
aoxious to the objection, that it virtually amends the 
act incorporating the National Express Company, and 
uolates the provision on the subject of amendments 
contained in section 16, article IV, of the constitu- 
ion. That section is as follows: ''Xo law shall em- 
)race more than one object, which shall be expressed 
D its title; nor shall any law be revived or amended 
Vol. xvin — 41 



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322 COURT OF APPEALS OF VIRGINIA. 

1868. by reference to its title; but the a<3t levived or the 

TemT section amended shall be re-enacted and published at 

T~"T length." In this case, no section or provision of the 

Anderson ° "^ , 

V. act of incorporation was amended. A new provision 
Common- ^^^ made, imposing a liability, as to which that act 
wealth. ^3^ silent. The new provision operated to overrule 
the legal effect of the former law, Dut it changed none 
of its terms; it did not "amend'- it in the sense of 
this provision of the constitution. A subsequent 
statute may be inconsistent with Jpart of a former 
statute, and so operate as a repeal of that part by im- 
plication; or it may not bo wholly inconsistent with 
301] any part of the former law, so as to repeal it, but it 
may operate to modify the construction and effect of 
the former law. In all such cases, the subsequent law 
has the effect of an amendment of the former law, 
but such cases are not affected by this provision of the 
constitution. 

It was contended, that the personal liability at- 
tached to such only as were stockholders at the time 
the liability of the company was incurred and that 
there is no evidence to show that the plaintiff m error 
was a stockholder when the taxes for which he was 
held liable were incurred, or when they became pay- 
able. And it was insisted, that for this defect of 
proof, there should have been a final judgment for the 
defendant, on the authority of Webb v. McXeillj 3 
Munf. 184; Brown v. Ferguson^ 4 Leigh 37; and 
^VaUon V. RoberUon^ lb. 236. 

The niuety- third section does not define what stock- 
holders are to be held liable. On the one hand it 
may be said, that the effect of the law is to treat the 
members of the company, pro hac vice^ as partners, 
so that only those should be held liable who were 
stockholders when the taxes were incurred or became 



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COURT OF APPEALS OF VIRGINIA. 323 

On the other hand, it may be said, that 1868. 
such a ccnstructicn would lead to great inconvenience Term7 
and injustice, by holding a stockholder responsible T~T 
after he has parted with his stock, and consequently v. ^ 
with all power to have the debts paid or to protect Common- 
himself by his influence in the management of the wealth, 
company; that purchasers of stock should be held to 
take it eum onere^ and that the language of the statute 
is satisfied by holding those liable who are stock- 
holders when the proceedings are commenced. Such 
provisions have given rise to much conflict of opinion 
in other States. Angell & Ames on Corp. sec. 616, 
and cases cited. It is not necessary, however, to de- 
cide in this case what particular class of stockholders 
are liable under the act in question. The letter of 
the plaintiff in error admitted that he was a stock- [302 
holder, and alleged that he had paid all the requisi- 
tions that had been made upon him, so that he had 
probably been such for a considerable period. When 
he became a stockholder, and when he ceased to be 
such, were matters which lay peculiarly within his 
on-n knowledge, as to which the means of proof were 
open to him, while they were not equally open to the 
Commc nwealth. If the plaintiff intended to dispute 
his liability for any part of the taxes, on the ground 
that he was not a stockholder at the time they were 
incurred or became payable, he ought to have proved 
that fact. Having failed to do so, we are authorized 
to hold that he was a stockholder throughout the 
whole period for which the taxes were due. 

It was also contended that the proof of the Com- 
monwealth was defective, because it did not show 
that the taxes demanded of the plaintiff in error had 
not been paid by the company. Authorities were 
cited to show, that where a duty is enjoined under a 



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324 COURT OF APPEALS OF VIRGINIA. 

1868. penalty, it will be presumed in the absence of all eri- 

Term7 d^iice, that it has been performed, and that a party 

T~3; who claims a riffht founded upon an omission to per- 

Anderson or r 

V. form such duty, must overcome this legal presumption 

Common- by proving that the duty has not been performed, al- 

wealth. though this involves the proof of a negative. The 

doctrine and authorities on this subject may be fouad 

in 1 Starkie Evid. 588-590, ed. of 1800. 

This objection proceeds upon an assumption that 
the ninety-third section does not make the stock- 
holders liable primarily and equally with the Company 
for the payment of the taxes due from the Company. 
If it does make them so liable, it puts them on the 
footing of debtors, and not of mere guarantors, and 
it was only necessary for the Commonwealth, in this 
proceeding, to prove the amount of tax with which 
the company was chargeable. For that proof, witi- 
out more, established a liability on the plaintiff in 
303] error as a stockholder for the payment of that amount, 
and it was incumbent on him to discharge himself 
from that liability by proof. 1 tttarkie Evid. 589. 

The ninety- third section does not, in terms, declare 
whether the stockholders are to be liable primarily 
and equally with the company, or whether their lia- 
bility is to be merely secondary. I am inclined to 
think that it was the intention, of the Legislature to 
make them liable primarily and equafly with the com- 
pany, and my brethren entertain no doubt upon this' 
point. Ilarger v. McCullough^ 2 Denio R. 119. It; 
is not important, however, to decide this questioiL; 
For we are all of opinion that it may fairly be infermi 
from the evidence of the witness Poitiaux, that th^ 
taxes had not been paid by the Company. Thtr6 
was, therefore, no such defect of proof as the argJi 
ment I have been considering assumes. 



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OOUKT OF APPEALS OF VIRGINIA. 325 

I think that the judgment is right, and ought to be 1868. 
affirmed. '^^^ 



_, , . . 1 . , . n -A-nderson 

The other judges concurred m the opinion of v. 

Joi/Ties, J. Common- 

wealth. 

Judgment affirmed. 



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326 , COURT OF APPEALS OF VIRGINIA. 



Richmond. 

1868. Midlothian Coal Mining Co. v. Finney <& ah. 
January 

Term. 
304] February 24. 

1. By deed of April 1, 1861, A leased certain coal property to B 

until December 31, 1864 ; and by deed oi November 11, 1861, 
endorsed on the first, and declared to be a part of it, he leased 
other adjoining coal property to B for the same time. By am- 
tract of September 4, 1864, A and B agree to renew the lease 
of April 1, 1861, for five years from the 1st of January, 1865. 
A question arising whether the lease of the property men- 
tioned in the deed of November 11, 1861, is renewed as being 
part of the lease of April 1, 1861. Held • This is a latent am- 
biguity, and parol evidence is admissible to prove what was 
the intention of the parties. 

2. The court below having decided the case on the construction of 

the deeds, and there having been little enquiry before the 
commissioner as to the intention of the parties, upon the re- 
versing of the decree, the cause will be referred to a commis- 
sioner, with liberty to both parties to introduce testimony. 

In Ma}^ 1866, a decree was made in three causes 
depending in the Circuit Court of Henrico county, one in 
the name of Finney and others against Heth's adminis- 
trator and others, one in the name of Grwathmey 's execu- 
tor against the same defendants, aud one in the name 
of Barksdale and others agianst the same defendants, 
by which a commissioner of the court was directed lo 
enquire and repoit to the court the amount due in the 
present currency from the Midlothian Coal Mining 
Company and others, under leases by the receivers of 



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COURT OF APPEALS OF VIROINJA. 327 

the court in said causes, to said lessees of the coal land 1868. 
and other property of the Chesterfield Coal and Iron g^IJ^ 
Mining Company embraced in said leases. In pursu- — 

ance of this decree, Commissioner Evans, in October, thian 
1866, made a report, in which he charges the Midlo- Mining 
thian Coal Mining Company, among other items, with Company 
$2,250 of principal and $270 of interest, as rent of Finney 
what is called the Swann pit, from the 20th of Novem- r3Q5 
ber, 1861, to the 20th November, 1866, at $450 per 
anmim. He returr ed with his report the leases under 
which the rents were held by him to be due ; and also 
the deposition of J. L. Morrisett, the receiver who had 
made the leases to the Midlothian Company, under 
which the question in this cause arises. On the 26th 
of October, 1866, the court made a decree confirming 
the report, and directing the Midlothian Coal Mining 
Company to pay into the National Exchange Bank the 
several sums reported to be due from the Company. 

On the 2d of November, 1 866, the Midlothian Coal 
ilimng Company, with the consent of the parties in 
these causes, filed their petitions in the causes, and 
also exceptions to the report of Commissioner Evans. 
The first exception is — Because they are chai'ged with 
rent at the rate of $450 per annum for five years for 
the Swann pit, whereas, as they insisted, the lease of 
that pit was only from the 23th of November, 1861, 
antil the end of the year 1864. 

It appears that, by a deed of leacie bearing date the 
1st day of April, 1861, James Morrissett, as receiver 
of the court, leased to the Midlothian Coal Mining 
Company certain coal lands of the Chesterfield Coal 
and Iron Mining Company, described in the lease; and 
the lease \vas to continue until the 31st of December, 
1864. This lease did not embrace the Swann pit, 
which was the property of the same Company. At 



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A 



328 OOUBT OF APPEALS OF VIRGINIA. 



1868. this time the Midlothian Company held other parts of 
Termf ^^ lands under a previous lease executed by Farrar, 
~T^'7^ * previous receiver in these causes, which would ter- 
thian minate at the same time. On the 20th of November, 
Mining 1861, Morrisett ncade another lease to the Midlothian 
Company Company, which was endorsed on or added to that of 
Finney the 1st of April, in which it is said that, in addition 
306] to the privileges granted to the said lessees by the 
foregoing lease bearing date the 1st of April, A. D. 
1861, the said lessees shall have the like privileges of 
working the pit known as Swann's pit, and of raising 
coal from the same, subject to the same conditions and 
restrictions as are presciibed in the foregoing lease in 
respect of ihe workings therein contemplated, and 
subject also to these conditions; and then sets out cer- 
tain provisions as to what the Company should not or 
should do ; and containing a covenant by the lessee 
that the annual rent of said Swann's pit shall not be 
less than four hundred and fifty dollars. The last 
provision in this deed is : 3. This agreement being in 
addition and supplement to the foregoing lease, shall 
be taken and considered as a part thereof; and it shall 
be in the power of the said receiver, or of his successor 
in office, to terminate the foregoing lease, and also 
this agreement as a part thereof, upon giving three 
months notice to the said lessees. 

By anothei deed bearing date the 1st of September, 
1864, Morrisett and the Midlothian Company agree 
to renew and extend the lease granted by Farrar, and 
also the lease of Morrisett of the 1st of April, 1861, 
for five years from the 31st of December, 1864. Thi 
deed commences by reciting the existence of the lease 
by Farrar by its date, and the one from Morrisett as 
dated the 1st of April, 1861, and then says, that the 
said parties, Morrisett and the Company, have agreed 



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COURT OF APPEALS OF VIRGINIA. 329 

and do agree to renew and continue the said leases for 1868. 
the term of &\e years from the said 31st of December, TermT 
1864, to the 31st of December, 1869, upon the same ^^.^j _ 
terms and conditions as are set forth in the two exist- thian 
ing leases, in all respects, except so far as the sane are Mining 
varied by what follows in this deed. The deed then Com^pany 
proceeds to provide what rent shall "be paid per bushel Finney 
upon the coal raised. r3Q7 

Morrisett, in his deposition, which was taken by 
the commissioner and returned with his report, says : 
That the Midlothian Coal Mining Company had paid 
DO rent for the Swann pit under the lease of April 1st, 
1861. They expended something considerable in clean- 
ing out and drifting the pit, though they raised no coal 
from it. As he understood the purpose of the Midlo- 
thian Company, it TV as to keep other persons from 
lentiDg and working the Swann pit. It is just and 
fair, however, to say, that the Midlothian Company 
tried their best to raise coal from the Swann pit, and 
failed, because the coal was not there to raise. 

The petitioB of the Midlotliian Coal Mining Com- 
pany, after referring to the Commissioner's report and 
the leases hereinbefore mentioned, says that the report 
shows that there was no evidence whatever before the 
Commissioner of any holding over of the Swann pit 
by the Midlothian Company, after the 31st of Decem- 
ber, when the lease of the property expired by its 
terms; and they aver and are prepared to prove, that 
no such evidence was in fact before him, and that none 
such could have been before him, because none such 
existed. They insist that the lease of April 1st and 
November 20th, 1861, were distinct leases, and the 
renewal of the first did not renew the last. That if 
the terms of the lease are ambiguous, so as to admit 
parol evidence to show what was the intention of the 
Vol. XVIII — 42 



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830 COURT OF APPEALS OF VIRGINIA. 

1868 parties in taking the renewed lease of the Ist of Sep- 
Te^^ tember, 1864, the evidence of Morrisett should have 
— led the commissioner to a inference opposite to that 
thian he has drawn. And they aver that they never in- 
Mining tended to renew the lease of the Swann pit, and never 
Company imagined they had done so. That in fact, long before 
Finney the first lease had expired, they withdrew their ma- 
308^ ^ chinery, abandoned the possession of the pit, and never 
afterwards interfered with it in any manner whatever ; 
and though they remained lessees until the first lease 
expired, and liable, as such, for the rent, yet after the 
expiration of that lease, they never asserted or claimed 
any title or interest whatever in the Swann pit, never 
exercised any control over it, or had any sort of posses- 
sion of it; nor were they aware, until Commissioner 
Evans' leport was made, that any peison regarded 
them as tenants of that pit, or responsible for rent in 
any way or to any extent. And all these allegations 
they are prepared to establish by proofs, if an oppor- 
tunity is afforded them to do so. This petition was 
sworn to by the President of the Company. 

On the 6th of November, 1866, the court, by con- 
sent of the parties, made a decree, that the operation 
of the decree confirming the report of Comissioner 
Evans, be suspended so far as it relates to the sum of 
$2,250, principal money, and $270 interest, reported 
as the rent due from the Midlothian Company for the 
Swann pit; but the cause coming on again to be heard 
on the 30th of April, 1867, the court was of opinion 
that, according to the true intent of the contracting 
parties, the lease of the Swann pit was incorporated 
with and made part of the original lease of the 1st of 
April, 1861; and that the whole lease was renewed, 
including the Swann pit as a part of the demised 
premises, by the lease of the 1st of September, 1864. 



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COURT OF APPEALS OF VIRGINIA. 331 

The decree of the 6th of November, 1866, was there- 1868. 

fore set aside, and the Commissioner's report was Term/ 

again confiiraed. And the Midlothian Coal Alining ly^.^j^ 

Company obtained an appeal to this court. thian 

Coal 
Mining 
X. p. Howard, for the appellants. Company 

A. Johnston^ for the appellees. Finney 

<& als. 

JgYNKs, J. Upon the face of the contract of Sep- [309 
tember 1, 1864, there is no ambiguity. It recites that 
theie are in existence two leases, which will expire on 
the 31st day of December, 1864 — one dated Novem- 
ber 11, 1854, the other dated April 1, 1861 — and pro- 
vides for a renewal of these leases for a term of five 
years, upon certain specified terms. But when we 
come to apply this contract to the subject matter, it 
appears that on the 20th November, 1861, a paper 
was executed containing a lease of the Swann pit until 
the 31st day of December, 1864, which paper refers 
to the lease of April 1, 1861, and describes itself as 
'*an addition and supplement" to the sale of April 1, 
1861; and declares that it * 'shall be taken and con- 
sidered as a part thereof." A question then arises, 
whether the parties intended, by the contract of Sep- 
tember 1, 1864, to renew the lease of April 1, 1861, 
as it originally stood, so as to exclude the Swann pit, 
or to renew that lease along with the ''addition and 
supplement" of November 20, 1861, "as a part 
thereof," so as to embrace the Swann pit. This pre- 
sented a case of latent ambiguity, for the removal of 
which it was competent to show by parol evidence, 
what was the actual intention of the parties. The 
lease of November 20, 1861, was called part of that 
of April, 1861, so as to bubject it, without the necessity 
of repetition, to the same conditions; but it was still 



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332 COURT OF APPEALS OF VIRGINIA. 

1868. actually distinct from it, inasmuch as it related to 
Term7 different property, was made at a different time, re- 
^j.,. served a distinct rent, and was, in some respects, sub- 
thian ject to different conditions. 

Mining The only parol evidence in this case was the depo- 
Coinpany gitjon of Morrisett, the lessor. He testified that the 

V. ' 

Finney appellants expended a considerable sum in cleaning 
out and drifting the Swann pit, though they raised no 
coal from il ; that they tried their best to raise poal 
from that pit, but failed, '^because the coal was not 
310] there to raise." He further said that he understood 
that the purpose of the appellants was to keep other 
persons from renting and working the Swann pit. 

Though not so stated in terms, this witness seems 
to have had reference to what was done by the appel- 
lants during the original term, and to the motives 
which induced them to obtain the original leaSe of the 
Swann pit. It cannot be supposed that they would 
allow the whole term of the original lease to expire 
without ascertaining whether or not coal could be 
found in that pit; and after ascertaining that no coal 
was there, they would have had no motive to keep 
other persons from renting and working it. 

This evidence, given by the lessor himself, affords 
strong ground to believe that the parties did not intend 
to embrace the Swann pit in the contract of September 
1, 1804. The appellants had no motive to renew the 
lease of that pit; the former lease had been a dead loss 
to them of the rent and of the money expendecl in 
cleaning out and drifting the pit. A renewal of the 
lease must have entailed a like loss; and these facts 
were well known to the lessor. 

The appellants excepted to the report of the Com- 
missioner charging them with rent of the Swann pit 
under the contract of renewal, and suppcrted the ex- 



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OOUBT OF APPEALS OF VIRGINIA. 333 

ception by an affidavit. This affidavit stated, among 1868. 
other things set forth by the appellants in a petition, TermJ 
that the appellants ''never intended to renew the lease l^-T^ — 
of that pit, and never imagined that they had done thian 
so; that in fact, long before the first lease expired. Mining 
they withdrew their machinery, abandoned the posses- ^^"^pany 
sion of the pit, and never afterwards interfered vvith it Finney 
in any manner whatever; an though they remained 
lessees until the first lease expired, and liable, as such, 
for the rent, yet after the expiration of that lease, 
they never asserted or claimed any title or interest in 
the Swann pit; never exercised any control over it, or 
had any sort of possession of it; neither were they [311 
aware, until the report of Commissioner Evans was 
made, that any person regarded them as tenants of 
the Swann pit, or responsible for rent in any way or 
to any extent. And all these allegations they are 
prepared to sustain by proofs, if the opportunity be 
afforded them to do so." The appellants, in their 
petition, asked that the report of the Commissioner 
might be corrected by excluding the rent charged for 
the Swann pit, and that, if necessary, the report might 
be recommitted for that purpose, with leave to the 
petitioners to adduce proof of the allegations made in 
their petition. 

The Circuit overruled the exception and confirmed 
the report, being '*of opinion that, according to the 
true intent of the contracting parties, the lease of the 
Swann pit was incorporated with and made a part of 
the original lease of April 1, 1861, and that the whole 
lease was renewed, including the Swann pit, as part 
of the demised premises, by the lease ot September 1, 
1864." It would seem from this, that the court de- 
cided the case upon the construction of the several 
leases, and without reference to the parol evidence. 



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334 COURT OF APPEALS OF VIRGINIA. 

1868. For the reasons already given, I think the case must 

TermT ^^ decided upon the parol evidence, and that it is at 

—^7:7; — leabt doubtful, from the evidence in the record, 

thian whether the parties did intend to embrace the Swann 

Mining P^^ ^^ ^^^ contract of renewal. 

Company g^t it is evident that the parties did not go fully 
Finney into the parol evidence beaiing on this question. It 
is alleged by the appellants, in their petition, that they 
did not do so themselves, and they cannot complain If 
an opportunity is given to the other parties to adduce 
further evidence. 

I am, therefore, of opinion that the Circuit Court, 
instead of overruling the exception of the appellants, 
should have recommitted the report, with instructions 
to the Commissioner to enquire whether it was the 
actual intention of the parties to embrace or to exclude 
312] the Swann pit in the renewed lease, and with leave to 
all parties to take further evidence on that subject. 
I think the decree should be reversed. 

The other judges concurred in the opinion of Joyne^^ 
J. 

Decree reversed. 



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COURT OF APPEALS OF VIRGINIA. 335 



Utterbach tfc als. v. Kixey. 1868. 

January 
Term. 
February 24. [313 

1. When a creditor gives up a substantial part of a debt, due before 
the 2d of April, 1865, or the liability of a person bound to 
him for its payment, in consideration of a new security for 
the payment of the debt, or any part of it, such new security 
comes within the saving of the second section of the act to 
stay the collection of debts for a limited period, passed March 
2, 1806, Sess. Acts 1865-66, p. 180 ; and may be enforced ac- 
cording to its terms ; such a case not being embraced in the 
third section of that act. 

This was a motion in the Circuit Court of Fauquier 
county, by B. F. Kixey against Charles H. Utterbach 
and two others, for execution upon a forthcoming 
bond; and a cross motion by Utterbach against Ilixey 
to quash the forthcoming bond. The only ground of 
the last motion was that the execution under which 
it had been taken was sued out in violation of the 
statute, called the stay law. 

The Circuit Court quashed the forthcoming bond, 
and the execution under which it was issued, with 
costs; and Rixey excepted. The facts are fully stated 
in the opinion of this court, delivered by Judge Mon- 
ccKE. Upon a writ of error to the District Court of 
Appeals at Fredericksburg, the judgment of the Cir- 
cuit Court was reversed. And thereupon Utterbach 



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336 COURT OF APPEALS OF VIRGINIA. 

1868. and the other defendants obtained a writ of error to 

January , , . , 

Term. ^"^^ COUrt. 



Utter- 
bach Tucker^ for the appellants. 

V. ' Green ^ for the appellees. 
Rixey. 

314 1 MoNcuRE, P., delivered the opinion of the couit : 

This is a supersedeas to a judgment of the District 
Court holden at Fredericksburg, reversing a judgment 
of the Circuit Court of Fauquier quashing a forthcom- 
ing bond and the execution under which it was given, 
upon the ground that the execution was issued contrary 
to the first section of the act commonly called the stay 
law, passed March 2, 1S66, entitled '*an act to stay 
the collection of debts for a limited period." Acts 
18G5-G, p. 180. The first section enacts, that no exe- 
cution, (fee, shall be issued, except in the cases there- 
inafter provided for, until the 1st day of January, 
1868. The second section declares, that the foregoing 
section shall not apply to any case in which the debt 
or liability sought to be enforced was contracted or in- 
curred since the 2d day of April, 1865, &c. The third 
section provides, that "no security or undertaking of 
any sort, the consideration of which is a debt con- 
tracted or liability incurred prior to the second day of 
April, 1865, shall, though executed or assumed aft« 
that day, be considered as a debt contracted, or lia- 
bility incurred, after that day, within the meaning of 
this act. And when a part of the consideration of 
any security or uudertakmg of any sort is a debt con- 
tracted, or a liability incurred, prior to the 2d day of 
April, 1865, such security or undertaking, though exe- 
cuted or assumed oq or after that day, shaU, as to so 
much of tne money due thereon, be considered as a 
debt contracted or liability incurred before that day, 



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COURT OF APPEALS OF VIRGINIA. 337 

within the meaning of this act." The only question 1868. 
we are called upon to decide in this case is, whether Term7 

it comes within the true intent and meaning of the"Trj 

said third section ? No question is raised as to tha bach 
constitutionality of the stay law. On the contrary, y 
the defendant in error, by his counsel, requested that I^i^cey. 
no such question should be decided in the case. We 
will, therefore, proceed to consider and dispose of the 
case without reference to that question. 

The facts of the case are set out in a bill of excep- [315 
tions taken by the defendant in error Eixej' to the 
judgment of the Circuit Court quashing the execution 
and forthcoming bond as aforesaid. Those facts are 
sustantially as follows : 

That in the year 1864 an agreement was made be- 
tween the plaintiff in error C. H. Utterbach and one 
Silas H. Turner that the said Turner should purchase 
tobacco, for which said Utterbach was to furnish the 
money, and the profits arising therefrom was to be 
divided between them. Thereafter Turner purchased 
from Kixey, without communicating to him his 
arrangement with Utterbach, a lot of tobacco which 
went into the hands of Utterbach. Turner having 
paid to Kixey ail that was due him on account of said 
tobacco except the sum of $2,700, '* which was pay- 
able in Southern State funds (bankable);" and being 
anxious to pay the same, procured from said Utter- 
bach an order drawn by him in April, 1864, on Dela- 
plane, of Kichmond, payable to Turner, for $2,700 
'*in Southern State funds (bankable);" which order 
he placed in the hands of Ilixey, who was going to 
Richmond, to collect and apply the proceeds, if col- 
lected, to the debt of Turner to Rixey. The order 
was protested by Delaplane; and thereupon Rixey 
offered to re-deliver the same to Turner; but at the 

Vol. XVIII — 43 



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338 COURT OF APPEALS OF VIRGINIA. 

1868. request of Turner, Eixey retained possession of the 
Term7 Order as collateral security for the amount due upon 

""77" the purchase of tobacco. Rixev was not aware of 

Utter- ^ 

bach Utterbach's transactions with Turner, further than 
y^' the information afforded by the order on Delaplane, 
Rixey. ^nd had no communication with Utterbach until about 
the 20th of October, 1805, when he was sought by 
Utterbach, who proposed to settle with him the order 
on Delaplane by paying a smaller sum in United States 
currency. Just before this. Turner had oflfered to 
pay Rixey his said debt in United States currency at 
316] the rate of twenty-two per cent,^ which offer was de- 
clined. Utterbach, in his said interview, oflfered to 
pay him twenty-three per cent, in such currency, which 
was supposed to he less than its market valiie ; which 
oflfer Rixey accepted, in consideration of the pat/tnent 
to be then received j and w^hich was agreed to be taken, 
and was taken, in the form of a note drawn by said 
Utterbach, dated October 20, 1865, for six hundred 
and seventy-six dollars and eighty-nine cents, with 
interest from date, payable sixty days after date to 
said Rixey or order, negotiable and payable at the First 
National Bank at Alexandria, Virginia, and endorsed 
by Charles Bragg and R. E. Utterbach. The drawer of 
said negotiable note, the said C. H. Utterbach, assured 
the said Rixey and Charles Bragg, one of the endor- 
sers, that it would certainly be paid at maturity, and 
the said note would not have been excepted bat for th<U 
assurance. The said Rixey ^ upon the giving of said 
negotiable note^ and in consideration thereof thereupon 
released and discharged the said Turner from all lia- 
bility to him on account of the purchase of said tobacco^ 
and delivered up the order on Delapane to said Utter- 
bach. The said negotiable note was not paid at matu- 
rity, though deposited at the said bank for collection, 



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COURT OF APPEALS OF VIRGINIA. 339 

but was duly protested for uon-payment, and due no- 1868. 
tice of such non-payment and protest was given to the Term7 

drawer and endorsers. After the protest of the note, ~T7~ 

and while it was in the hands of a third party, to bach 
whom RLxey had delivered it, Utterbach the drawer y ^' 
lepeatedly promised in writing to pay it, his last ^^^^Y- 
promise in writing to pay it being on the 4th to pay 
it on the 6th day of August, 18G6. The judgment on 
which the execution was issued, which was quashed 
in this case, was obtained on the said negotiable note 
by Rixey the payee, against Utterbach the drawer 
thereof. 

The first section of the act before referred to, stand- 
ing alone, clearly embraces this case. The second as 
clearly excepts it from the operation of the first; this [317 
being a case in whicii the debt or liability sought to 
be enforced was con ti acted or incurred since the 2d 
day of April, 1865, and the only question is, whether 
the third section takes the case out of the operation of 
the second, and restores it to the operation of the first; 
that is, whether the negotiable note dated October 20, 
1865, on which the judgment was obtained, which 
was the foundation of the ex*»cution and forthcoming 
bond that were quashed, is a security or undertaking, 
the consideration of which was a debt contracted or 
liability incurred prior to the second day of April, 
1865, within the meaning of the said third section ? 

This section is certainly very broad in its terms : 
*'Xo security or undertaking of any sort, the con- 
sideration of which is a debt contracted,'' &c. ; though 
not broader tnan the second section, which declares 
that *'the foregoing section (that is the first) shall not 
apply to any case in which the dett or liability sought 
to be enforced was contracted," &c. But surely it 
was not designed by the Legislature to include in the 



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340 COURT OF APPEALS OF VIRGINIA. 

1868. operation of the third section every security and un- 

Term^ dertaking made since the 2d day of April, 1865, 

"7^7 — founded in any manner or to any extent whatever. 

Utter- ► ^ ' 

bach directly or indirectly, on the consideration arising 

v/' from a debt contracted or a liability incurred prior to 
Rixey. tj^^t day. Surely the Legislature did not intend to 
attach to all debts contracted before that day such an 
indelible stain as that they could not, by any combi- 
nation with other elements, be made a sufficient con- 
sideration for a debt contracted after that day to 
bring it within the operation of the second section of 
the act. Then where is the line to be drawn between 
securities and undertakings executed or assumed after 
the 2d day of April, 1865, in consequence of a debt 
contracted or liability incurred prior to that day, 
which are within the saving of the second section, and 
318] such securities and undertakingg which are not within 
the saving of that section ? 

Without undertaking to draw the precise line so as 
to ascertain what cases lie on one side and what on 
the other side of it, we think we may safely say, that 
wherever the creditor gives up a substantial part of 
the old debt, or the liability of a person bound to him 
for its payment, in consideration of the new security 
for the payment of the debt or any part of it, such 
new security comes within the saving of the second 
section, and may be enforced according to its terms, 
notwithstanding the stay law. In this case, it cannot 
be said that the consideration of the new security is 
the old debt within the meaning of the third section. 
''The consideration," within that meaning, is where 
the old debt forms the whole consideration of the new 
security, and does not embrace a consideration com- 
pouuvicd of the old debt and other elements of value. 
Where the old debt is the sole consideration of the 



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COURT OF APPEALS OF VIRGINIA. 341 

new security, it is regarded by the act as the same 1868. 
debt, although the security is changed; and that, too, xerm!^ 
although the creditor may have been benefited by the ^^^^^ 
change, as where he gets additional security. But bach 
where a substantial part of the debt is given up, or y. 
the liability of some person bound for the old debt is ^^^^y- 
released, in consideration of the new security, there 
has been such a novation of the debt as brings it 
within the saving of the second section. If this were 
not so, the stay law would deprive a debtor of the 
power of making any composition with his creditors 
for his relief from debt, or for the release of any of 
his sureties. A creditor being stayed by the law in 
the enforcem ent of his debt, might be willing to give 
up a part of it, and even give up the liability of a 
surety, provided he could get a new security of the 
debtor for the payment of a certain sura at a certain 
time. If the law denies to the debtor the right to 
give such a security which the creditor may enforce, [319 
does him an injury instead of a benefit. He may 
surely waive a benefit which the law intended to pro- 
vide for him, especially if by so doing he can secure 
what he esteems to be a greater benefit. Whenever 
a creditor gives up a substantial part of the debt, or 
releases a person who may be bound for it, in conside- 
lation of a new security given foi the payment of a 
certain sum at a certain time, it may fairly be inferred 
to be the intention of both parties that payment shall 
be made at that time, notwithstanding the stay law. 
There is nothing in the latter part of the third sec- 
tion which is inconsistent with this view. The mean- 
ing of that provision is, that where a security or 
undertaking is executed or assumed after the 2d day 
of April, 1865, for a sum of money composed, among 
other things, of a debt contracted or Lability incurred 



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342 CX)UKT OF APPEALS OF VIKGINIA. 

1868. prior to that day, such security or undertaking shall, as 
Tenm7 ^ SO much of the money due thereon, be considered as 
^^ ^_ a debt contracted or liability incurred before that day, 
bach within the meaning of the act. The several portions 
V. ' of the sura of money for which the security is exe- 
^^®y- cuted or the undertaking assumed in that case being 
wholly independent of one another, no alteration is 
thereby eflfected in the nature of the former debt 
within the meaning of the act. But this is very differ- 
ent from a case in which a part of the former debt is 
given up or the liability of another person therefor is 
released in consideration of the new security. 

And now let us apply the principle which we have 
laid down to the fji^ts of the case. About the 20th 
of October, 1865, Turner and Utterbach were indebted 
to Kixey in the value of $2,700 in ^'Southern Stales 
funds (bankable)" as of the month of April, 1864, in 
the city of Richmond, that being the amount of the 
order which in the latter month and year was drawn 
by Utterbach on Delaplane in favor of Turner, and by 
320] him passed to Eixey, to be collected and applied to a 
debt of the same amount then due to him by Utter- 
bach and Turner, but which order was protested by 
Delaplane as aforesaid. Being so indebted. Turner 
offered to pay the debt to Eixey in United States cur- 
rency at twenty-two per cent,^ which offer was de- 
clined. The fair inference from this statement is, 
tliat this offer was to make the payment in cash. So 
that Rixey might at that time ha\e received payment 
of the debt of Turner in United States currency, at 
the rate of twenty-two per ceht.^ but declined to do so, 
no doubt because he thought the rate was too low. 
Shortly thereafter. Utterbach sought an interview 
with Rixey, and "offered to pay him twenty-three 
per cent.^ in such currency, which was supposed to be 



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COURT OF APPEAXS OF VIRGINIA. 343 

less than its market value; \ihich ofifer the said Rixey 1868. 
accepted, in consideration of (he payment to be then '^^^ 

received J and which was agreed to be taken, and \vas "zr- 

taken, in the form of the negotiable note aforesaid, bach 
and which said negotiable note the said TTtterach as- y^ 
sured the said Rixey and Charles Bragg, one of the R^^ey. 
endorsers, would be certainly paid at maturity. Said 
note would not have been accepted but for said assu- 
rance. Said Eixey, upon the giving of said negoti- 
able note,' and in consideration thereof, thereupon re- 
leased and discharged the said Turner from all lia- 
bility to him on account of the purchase of said to- 
bacco, and delivered up the said Delaplane's order to 
said Utterbach." Now here it appears that Rixey, on 
or about the 20th of October, 1865, might have re- 
ceived in cash the amount of his debt in United States 
currency at twenty-two per cent.^ but declined doing 
so; and at or about the same time, accepted an oiler 
of twenty-three per cent, in such currency, which was 
supposed less than its market oalue. Supposed by 
whom? The fair inference is, by both parties, or 
generally. There is nothing in the record to show 
what was the value of *' Southern State funds (banka- [321 
ble)" in April, 1864, or even what was the precise 
nature of the funds referred to, though the presump- 
tion is they were Southern bank notes, receivable at 
bank in payments or on deposit. Nor can the court 
judicially know what was the value of such funds. 
I.,ess than the amount of the debt may have been 
oflfered and accepted in satisfaction thereof, in con- 
sideration of its immediate payment, notwithstanding 
the stay law enacted by the T^egislature at Alexandria 
on the* 23d of January, 1865— Acts of Assembly, p. 
7, ch. 7 — which was then in force; ** which offer the 
said Rixey accepted," as the bill of exception states, 



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34r4 COUKT OF APPEALS OF VIRGINIA, 

1868. *'in consideration of the payment to be then received,'' 
T^wJ S^ ^^^^ ^1^® payment was considered in effect as a cash 

~:^~ — payment. **And which," as the bill of exceptions 
bach proceeds to state, * -was agreed to be taken (and was 
V. ' taken) in the form of the negotiable note aforesaid, 
Rixey. ^j^^ which said negotiable note the said Utterbach as- 
sured the said Rixey and Charles Bragg, one of the 
endorsers, would be certainly paid at maturity." 
The transaction, then, was the same in effect as if the 
money had been actually paid to Eixey, and by him 
in mediately loaned to Utteibach upon his negotiable 
* note at sixty days, endorsed by Bragg, which Utter- 

bach assured Eixey and Bragg would certainly be paid 
at maturity. It is fair to presume from the evidence, 
that Rixey did not get a cent more by taking the note 
than he would have accepted in cash. The note was, 
in effect, a new transaction and a new debt, though 
created in consequence of the old one. But some- 
thing of still more importance yet remains to be stated 
to give this character to the note. Not only is it 
stated in the bill of exceptions that the '*note would 
not have been accepted but for said assurance,' but 
it is further stated, ^^that saia Rixey, upon the giving 
of said negotiable note, and in coruideration thereof^ 
thereupon released and discharged the said Tumtr 

322] froK all liability to him on acceunt of the purchase of 
said tobacco, and delivered ujp the said Delaplane order 
to said Utterbach." In other words, Rixey, in con- 
sideration of the negotiable note, and the assurance 
which was given of its certain payment at maturity, 
released and discharged his original debtor, who had 
just before offered to pay him in cash only one per 
cent, less of the original debt than the amount of the 
said note, and delivered up the order which he had 
been holding as collateral security, and which operate 



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COURT OF APPEALS OF VIRGINIA. 345. 

as an equitable assignment of so much of what might 1868. 

have been due, if anything, by Delaplane to Utter- xem^ 

bach. Upon the principle before laid down, the case ^ — 

clearly comes within the operation of the second and bach 

not of the third section of the act of March 2, 1866, *^v*^^* 

aforesaid. Rixey. 

We are, theiefore, of opinion to affiirm the judg- 
ment of the District Court. 

jujdgment of the district court of appeals 
Affirmed. 



Vol. XVIII — 44 



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346 COURT OF APPEALS OF VIRGINIA. 



18^- Ragland & Co. V. Butler. 

January 

Term. 
323] February 26. 

1. B con tracts to sell the merchantable pine timber on certain land, 

and saw it into lumber; pile the said lumber openly with 
sticks, and deliver it in Richmond. One count saya the lum- 
ber was piled openly with sticks ; another count says the lum- 
ber delivered was sawed from merchantable pine timber, and 
does not say the lumber was merchantable. Held : The con- 
tract meant the lumber should be piled, and therefore the first 
count was good ; and that the merchantable timber meant 
merchantable lumber, and therefore the second count was 
good. 

2. In this case the contract was to pay on delivery by a note at 

sixty days. The count avers the refusal to give the note, and 
the refusal to pay the money after the sixty days. Held : If 
the non-delivery of the note was the sole gravamen of the ac- 
tion, the averment of non-payment of the money was sur- 
plusage, and did not vitiate the count. But held further : That 
the agreement to give the note to pay at a specified time was, 
in legal intendment, an obligation to pay at that time if there 
was a failure to give the note. 

3. By the contract, R was to advance the freight, which was to be 

deducted when the note was given. It was not necessary to 
aver the payment of the freight by B. 

4. One count avers the refusal of R to receive the lumber. The ob- 

ligation to deliver implies the correlative obligation to receive ; 
• and the refusal to receive is therefore a breach of the contract 

5. The demand of the note is averred to have been made on the 

day of the delivery, or the offer to deliver the lumber. It is 
a case of mutual promises, and B was entitled to demand the 
note when he delivered or ofl'ercd to deliver the lumber ; and 
the demand was not made too soon. 



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[324 



COURT OF APPEALS OF VIRGINIA. 347 

6. A contract to sell the merchantable pine timber upon a certain 1868. 

tract of land, to be sawed into lumber by the vendor accord- January 
ing to the directions of the purchaser, and to be delivered at '^^^ 

Richmond, is a contract that the lumber shall be merchant- Ragland 
able ; and the usage at Richmond as to what constitutes a & Co. 

compliance with the directions of the purchaser, is to be the j. 7^ 
rule in determining that question. 

7. The court having refused to give an instruction to the jury 

asked for by the defendant, that the plaintiff must prove the 
delivery or the offer to deliver of merchantable lumber cut 
from the merchantable timber upon the land, <fec., and after- 
wards having instructed the jury that if they believed that 
the plaintiff cut from the land, &c., merchantable pine 
timber, and sawed it into lumber, without saying that the 
lumber must be merchantable, this instruction, after the 
refusal of the first was calculated to mislead the jury ; and 
the judgment will be reversed. 

This was an action of covenant in the Circuit Court 
of the city of Eichmond, brought by James T. Butler 
against E. F. Ragland and N. H. Ragland, partners 
under the name and style of Ragland & Co., to re- 
cover the value of a quantity of lumber contracted to 
be sold by Butler to Ragland -fe Co. ; and which they 
refused to receive, on the ground, as they alleged, 
that it was not such as the contract provided for. 
Butler was a citizen of the county of Caroline, and 
Ragland & Bro. were lumber dealers in the city of 
Richmond. 

The contract, which bore date the 25th of August, 
1865, provided that Butler sola to Ragland & Co. all 
the merchantable pine timber on a certian tract of 
land in Caroline county, Ya., purchased ly said But- 
ler of Bendalls, Peatross and Coleman, to be sawed 
into lumber of such lengths widths, and thicknesses, 
as may be required in writing by the said Ragland & 
Co., from time to time, as they may want it; pro- 
vided that they keep an order on hand, so that the 
mill may be kept constantly running without loss of 



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348 COURT OF APPEALS OF VIRGINIA. 

1868. time; and that the lengths of such tirciber are not to 
Term.' exceed thirty-six feet, and the width not to exceed 
"l~"j T the largest sized timber on said land ; also, that all of 
ik Co. said timber shall be piled openly with sticks for at 
Butler, l^ast thirty days befcre being shipped. And Ragland 
3'25] & Co. agreed to pa^ to Butler $22.50 per thousand 
feet, for the said lumber delivered in the city of Kich- 
raond, at the depot of the Richmond, Fredericksburg 
and Potomac Railroad Company; said payment to be 
made by negotiable notes payable at sixty days 
from the time of completion of delivery of each one 
hundred thousand feet of lumber at said depot in 
Richmond. Freight to be advanced as the lumber 
was received by the said Ragland & Co., and de- 
ducted at each settlement. 

The declaration contained five counts, in each of 
which the contract was set out. A demurrer to the 
first count was sustained; audit need not therefore 
be noticed further. The second count averred, that 
the plaintiff did, on divers days between the 25th of 
August in the year 1865 and the 26th of July, 1866, 
deliver to the defendants in the city of Richmond, at 
the depot of the Richmond, &c.. Railroad Company, 
merchantable pine lumber, sawed of the lengths, 
w^idths and thicknesses required by the orders in writ- 
ing of the defenlants; which lumber amounted to 
more than one hundred thousand feet, viz., on, ifcc, 
stating the different days when the lumber was de- 
livered, extending from April 25th to July 23d, 1866, 
and the quantity delivered on each da}'. The count 
then goes on to aver a compliance by the plaintiff with 
each provision of the contract on his part, notice of 
the delivery of each parcel of lumber to the defen- 
dants on the day of delivery ; and the demand af t>er 
the whole hundred thousand feet of lumber had been 



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CX)URT OF APPEALS OF VIRGINIA. 341> 

delivered, to wit, on the 23d of July, 1^66, upoD the isas. 

defendants for their negotiaUe note, payable at sixty xerm.^ 

days, for the price of one hundred thousand feet of Tr"T — T 
^ Hagland 

lumber at $22.50 per thousand feet. And the defen- & Co. 

dants had then and there refused to make their said Butler. 

negotiable note payable at sixty days from the said [326 

23d of July, 1866, &c. 

The third count sets out the orders of the defendants 
for the lumber, and the delivery in p'jrsuance of said 
orders, the last being on the 23d of July, 1866, at the 
railroad depot, of lumber sawed from the merchant- 
able pine timber on the tract of land referred to in the 
contract, and pait of the merchantable pine timber 
sold to the defendants; which said lumber, before being 
shipped to Bichmond, had been piled openly with 
sticks for thirty days, and amounted to more than 
one hundred thoiffeand feet. There was then an aver- 
ment of the demand, to wit, on the 23d of July, 1866, 
of the negotiable note, and the refusal to give it; and 
that, although sixty days had elapsed since the com- 
pletion of the delivery of the lumber, and the pr ice 
thereof, amounting to $2,250 is due and payable, the 
defendants, ifec, had not paid, &c. 

The fourth (jount diflferB from the third onJy in 
averring that, on the 23d of July, 1866, in the city of 
Richmond, he demanded of the defendants the price 
of said lumber at the rate of $22.50 per thousand feet, 
viz., $2,250, and required that the said price should 
be paid by a negotiable note, payable at sixty days as 
aforesaid. But that the defendants had refused to 
make such note; and that though the price of the said 
cne hundred thousand feet of luncber so delivered had 
long since become due and payable, the defendants, 
though often requested, had refused to pay the same. 

The fifth count sets out the orders of the defendants 



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350 COURT OF APPEALS OF VIKGINIA. 

1868. for lumber as of the dates of the 26th of August, 
^Tem^^ 1865, the 15 of February and th» 16th of April, 1866, 
':z~^ — T stating the different kinds and quantities of each, and 
& Co. then averred, that the plaintiflF was reauy in fulfiU- 
Butler. M^ent of his part of said article of agreement to deUvei 
327] to the defendants lumber of the lengths, width aad 
thicknesses mentioned in said orders of the defendants, 
and that he had ready for delivery in the city of 
Kiohmond, at the depot of the Eichmond, Fredericks- 
burg and Potomac Railroad Company, lumber of the 
lengths, &c., required by the said orders in writing 
of the defendants, amounting to a large number of 
feet, to wit, to one hundred and seven thousand one 
hundred and fifty-six feet, stating the times from the 
25th day of April to the 23d of July, 1866, and the 
kinds and quantity of each at each date. That the 
lumber was sawed from the merchantable pine timber 
on the tract of land in Caroline county; that it had 
been piled before shipment for thirty days openly 
with sticks; that the defendants had notice on the 
several days the lumber was at the depot in Richmond 
that it was ready for delivery; but that they had re- 
fused to receive the said several lots of lumber. 

At the November term, 1866, of the court, the 
record says, ^'the defendants demurred generally to 
the plaintiff's declaration, and the plaintiff joined in 
the demurrers." The cause was continued until the 
May term, 1867, when it was heard upon the demur- 
rer, and the entry is: "The defendants' demurrer tc 
the plaintiff's declaration being argued, it seemed to 
the court that the second, third, fourth and fifth 
counts of the said, declaration were sufficient in law 
for the plaintiff to have and maintain his action 
against the defendants; whereupon the court over- 
ruled ttie said demurrer lo the said counts; and that 



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COURT OF APPEALS OF VIRGINIA. 351 

the first count of said declaration, and the matters 1868. 

therein contained, were insufficient in law for the Term7 

plaintiff to have and maintain his action on that "t— — 7 
* Ragland 

count. It was therefore considered by the court that & Co. 

the demurrer to the first count was sustained; and no Butler. 

ground being assigned for the general demurrer to 

the declaration, the court overruled said demurrer." 

Issues were then made up on the pleas of ''covenants [328 

performed" and "covenants not broken." 

On the trial, the plaintiff introduced in evidence 
the contract declared upon, the orders of the defen- 
dants for the lumber, the certificates of the measurer 
and inspector of lumber for the city of Eichmond that 
he had passed the different parcels of lumber, specify- 
ing the kind and quantity, as good merchantable lum- 
ber, and also written notices to the defendants that it 
was at the depot, and calling upon them to take pos- 
session of it; and he introduced evidence to prove the 
delivery of these notices, and also that the lumber had 
been piled as required by the contract, and was mer- 
chantable. The defendants introduced a number of 
witnesses, the most of whom were builders in the city 
of Richmond, and had examined the lumber at the 
request of the defendants, to prove that it was not 
merchantable. It appeared that, after the refusal of 
the defendants to receive the lumber, it had been sold 
at auction by the plaintiff, after notice of sale to the 
defendants. 

After the evidence had been introduced, the defen- 
dants moved the court for an instruction embracing 
the first three propositions asked for in the second in- 
struction; and that upon the plaintiff's failure to 
prove any one of said propositions he could not re- 
cover in this action. 

This instruction the court refused to give; and 



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352 COURT OF APPEALS OF VIRGINIA. 

1868. thereupon the defendants asked the court to instruct 

Tem7 ^^^ P^y ^ follows: 

2d. The court instructs the jury that, to recovei in 

& Co. this action, the plaintiff must prove that he delivered 

Butler. ^^ tendered between the 25th of April, 1866, and the 

23d of July, 1866, at the depot of the Richmond, 

Fiedericksburg and Potomac Railorad Company, one 

hundred thousand feet of merchantable lumber, cut 

from the merchantable timber upon a tract of land 

329 1 bought by him from Bendalls, Peatross and Coleman, 

in the county of Caroline; and upon a failure to pro^e 

which he cannot recover in this action. 

3d. Tha court instructs the jury that, to recover in 
this action, the plaintiff must prove that said lumber 
was sawed in such lengths, widths and thicknesses as 
was required by the defendants by orders dated 
August 26th, 1865, February 15th, 1866, and April 
16th, 1866, provided that said orders did not require 
lengths exceeding thirty-six feet, and widths not ex- 
ceeding the^largest size timber on said land; and upon 
a failure to prove which he cannot recover in tins ac- 
tion. 

4th. The* court instructs the jury that, to reooTcr 
in this action, the plaintiff must prcve that the said 
lumber, before it was shipped from Caroline, hiidbeen 
piled openly with sticks for a.t least thirty days; and 
upon failure to prove which he cannot recover in this 
action. 

5th. For the plaintiff to recover in this action, the 
jury must be satisfied from the evidence that one hun- 
dred thousand feet of lumber was delivered or tendered 
by the plaintiff bet^^een the 25th day of April, 1866, 
and the 23d day of July, 1866, at the depot of the 
Kichmond, Fredericksbuig and Potomac Railroad 
Company, in the city of Richmond, of the kind called 



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CX:)UKT OF APPEALS OF VIRGINIA. 353 

foi in the contract sued on, of the sizes specified in 1868. 
the orders of the 26th of August, 1865, 15th of Feb- ^tI^ 
ruaiy, 1866, and the 16th of April, 1866; and if they ^ ^^^ 
shall not be satisfied from the evidence that one hun- & Co. 
dred thousand feet of such lumber was so delivered Butler. 
or tendered, they must find for the defendants. 

The court refused to give these instructions. The 
plaintiff then applied for an instruction, which the 
court refused to give, and gave the following: 

If the jury shall believe from the evidence, that, on 
or before the 23d day of July, 1866, the plaintiff cut 
from the land mentioned in the contract between him- [330 
self and the defendants given in evidence in this cause, 
merchantable pine timber, and sawed it into lumber 
of the lengths, widths and thicknesses required in the 
written orders of the defendants, from time to time, 
and piled the said lumber openly with sticks at least 
thirty days before being shipped, unless shipped 
sooner by order of the defendants, and within a rea- 
sonable time after said orders were received; and on 
or before the 23d day of July, 1866, the said plaintiff 
delivered one hundred thousand feet of said lumber at 
the dopot of the Richmond, Fredericksburg and Po- 
tomac Railroad Company, in this city, of which de- 
livery the defendants had due notice, then the plain- 
tiff is entitled to recover the value of the one hundred 
thousand feet of lumber so delivered, estimated at the 
late of $22. oO for each one thousand feet; unless the 
jury shall further believe that the defendants made 
payment therefor by negotiable Qote at sixty days 
from the time of completion of the delivery of the 
lumber as aforesaid. But if the jury shall believe 
that the defendants refused to receive the lumber de- 
livered as aforesaid, and that the plaintiff sold the 
same after having duly notified the defendants of such 
Vol. XVIII — 45 



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354 COUKT OF APPEALS OF VIKOINIA. 

1868. • sale, then the amount so ascertained is to be credited 
TermT ^7 ^^^ ^^^ proceeds of such sale and the freiglit ad- 

"T— ; — 7 vanced by said defendants, if any. In ascertaining 

Ragland '^ ' j o 

& Co. whether said lumber was sawed as directed by said 

Butler, order, the juiy may consider what is a compliance 
with such orders according to the custom of the trade 
in lumber in this city. 

To the opinion of the court refusing to give the in- 
structions asked for by the defendants, and giving the 
foregoing instructioQ, the defendants excepted. There 
was a verdict and judgment for the plaintiff for 
$1,162.04 with interest from the 23d of September, 
1866, till paid. And the defendants thereupon ap- 
plied to this court for a writ of error, which was al- 
lowed. 

331] Williams and Crump^ for the appellants. 

Sieger & Sands and Lyons^ for the appellee. 

Rives, J. There seems to be some uncertainty and 
imperfection in the record as to the state of pleadings 
in this case. The first entry of 21st November, 1866, 
is, *'that the defendants demurred generally to the 
plaintifl's declaration; and the plaintiff joined in said 
demurrers." If this stood alone, there would appear 
to have been only a general demurrer to the whcdft 
declaration; and that the plural ^' demurrers^ ^ was sued 
by mistake for the singular. But when we look far- 
ther into the proceedings, we find that there has beea 
some omission or inaccuracy which devolves upon w 
the duty of giving a consistent interpretation to the 
whole. I think the materials for doing so will bo 
found in the entry of May 15th, 1867, by which bfat 
pleadings weref ttdjusted by the court. The statement 
is, ^'that the defendants' demurrer to the plaintifTa 



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COURT OF APPEALS OF VIRGINIA. 355 

declaration being argued, it seemed to the court that 1868. 
the second, third, fourth and fifth counts of the said xermT 
declaration were sufficient in law for the plaintiBf to ^7"T"~T 
have and maintain his action against the defendants; & Co. 
whereupon the court overruled the said demuner as Butier. 
to said counts; and that the first count of said declar- 
ation and the matters therein contained were insufficient 
ia law for the plaintiff to have and maintain his action 
on that count. It was therefore considered by the 
court that the demurrer to said first count be sustained ; 
and no ground being assigned for the general demurrer 
to the declaration, the court overruled said demurrer." 
This action of the court can only consist with the hy- 
pothesis of a demurrer to the whole declaration, and 
demurrers to the several counts thereof. The uncer- 
tainty, therefore, of the first entry is corrected by this 
latter one; and when both are taken and construed 
together, we are warianted in viewing the case as if 
iQ addition to the demurrer to the whole declaration, [332 
the counts were severally demurred to, so as to give 
effect and meaning to the plural designation employed 
in said first entry, which would have been inapplicable 
if there had been a demurrer to the whole declaration 
alone. Hence, I infer from the whole record that the 
appellants are entitled to the benefit, if any, of their 
several objections to the counts of the declaration, as 
if the record had shown demurrers to them in terms. 
The first two grounds of demurrer may be considered 
together — the first alleging that the performance 
shonld have. been alleged in the terms of the contract 
as set forth, namely, that the timber and nob lumber 
was piled openly with sticks, &c. ; and^ the second, 
that in the third, fourth and fifth counts the delivery 
was averred in the language of the contract as of 
^'lumber sawed from merchantable pine timber ^^'^ with- 



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356 COURT OF APPEALS OF VIRGINIA. 

1868. out the epithet used in the second count of ^"-mer^hauU 
TemJ ohU-'*^ It is obvious that these exceptions militate 
. , against each other. While the first complains of any 
& Co. averment save in the literal terms of the contract, the 
Butler, second requires a departure from the words, and a cou- 
struction of the contract in the meaning and interest of 
the defendants. This seems to me to involve a total mis- 
conception of the objects of pleading and the duty of 
the pleader. In the averment of performance or breach 
the plainti flf has a right to conform to the legal eflFect and 
substance of the instrument he declares upon ; and neces- 
sarily takes the hazard of any departure therefrom. 
The demurrer raises the question and devolves upon the 
court the construction of the instrument of which pro* 
fert is made. There can, of course, be no error in 
counting on the delivery of the lumber in the language 
of the contract ; can there be any in substituting '*/i/m* 
J^r" for ^Himber*^ in reference to the obligation to pile f 
If the latter term is assumed to mean the unsaid ed Icyi 
333] or beam, it would stultify the parties to the contrao^i 
as there is neither sense nor object in ^7m^ such; as! 
the first rule of legal construction is reasonaU^n^^j 
but if the context plainly demonstrate the terms 
be interchangeable in that application, there is still ki^ 
semblance of propriety in the objection. These mm{ 
technicalities, therefore, were properly overruled. 
A third ground of demurrer is, that the b: 
should have been confined to the non -delivery of 
note, and should not have erpbraced along with 
the noD -payment of the money, for which the 
should have been given. The whole force of this 
jection is avoided by two considerations : First — Ui 
the hypothesis of the defendants, that the non-deli 
of the note was the sole gravmnen of the action, 
averment of non-payment was surplusage; 



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COURT OF APPEALS OF VIRGINIA. 357 

secondly^ that an agreement to give a note to pay at 1868. 
a stipulated time created, by force of a necessary legal Term7 
intendment, an obligation to pay at that time, if there "T"- — r 
were a failure to give the note. I do not, therefore, & Co. 
discern any defects in the counts in this particular. Butler. 

The fourth objection rests on the pretension, that 
the deduction of costs of transportation was a condi- 
tion precedent to the action; but this is not so; it is 
a matter of plea or defence, cr abatement of the plain- 
tiff's demand. The right of action was complete on 
delivery; and it was not incumbent on him to aver a 
set-off, to which the defendants in a certain event 
might be entitled; nor in this case could the payment 
of freight have been alleged, because the refusal to 
receive carried with it a denial of the freight. 

Fifthly, it is claimed that the fifth count is faulty, 
in averring a refusal to receive as a breach of this con- 
tract. An obligation to deliver, implies the correla- 
tive duty to receive; and the pleader was well justified 
to vary his allegations according to legal intendments, [334 
and to rely on this version of the contract. 

The sixth and last objection to the declaration is, 
that the demand of the negotiable note is laid on the 
same day that the delivery was averred, namely, on 
the 23d July; whereas it is contended that the defen- 
dants had the whole of that day for the making of 
their note. The doctrine, thus invoked, does not ap- 
ply to this case. It is one of mutual contracts, con- 
temporaneous in performance, and falling under the 
fifth rule laid down by Mr. Sergeant Williams, in his 
note tc Pordage v. Cole^ 1 AVms. Saund. K. 310. 
Such is the case of all sales. Delivery is predicated 
of payment; and payment, of delivery, leaving it un- 
certain which party is to do the first act. Here, upon 
the delivery or oflTer to deliver, the plaintifl^ was en- 



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358 OOUKT OF APPEALS OF VIBGINIA. 

1868. titled at the same moment to the note of the defen- 

"^TeraiT dants. It is not, therefore, a question at all analog- 

-r~; — 7 ous to the one made at the bar, whether, in the com- 
Bagland 
& Co. putation of time, a day was to be reckoned tndu^rely 

Butler. ^ exclusively ; the making of the note was contem- 
poraneous in the understanding of the parties with 
the act of delivery; and both were properly laid en 
the same day. The delivery might have been refcsed 
without the note ; as well as the note refused without 
the delivery. 

I have thus reviewed all the grounds of demurrer 
and given my reasons for approving the action of the 
court below in overruling them. This brings us to the 
substance and merits of this controversy. Tne ques- 
tions arise upon the instructions refused, and the in- 
struction given by the court. A comparison of tl^ 
former with the latter, shows that there are but two 
enquiries submitted to us : ^rst^ as to the interpreta- 
tion of the contract respecting the lumbei to be de- 
livered; and secondly, as to the proof of usage, or its 
admissibility in governing its fulfilment. 

I. In order to arrive at a just and reasonable inter- 

335] pretation of this contract, we must look at the sitoa- 
tion and conduct of the parties, and the subject-matwr 
of their contract. The plaintilBf was the owner of cer- 
tain lands, and proposed to sell all of tAc merchauiaiU 
pine timber upon them ; the defendants were lumb«- 
dealers in the city of Ilichraond, and agreed to bay 
this timber, to be sawed into lumber of dimensions to 
be ordered, under certain restrictions as to length and 
width, and as to time and mode of seasoning. Tbert 
seems to have been no preliminary survey to inspeel, 
and ascertain the character of the growing timber, 
would have been proper and necessary, if it had beet, 
the subject of the sale. But such was not the bargain^ 



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COURT OF APPEALS OF VIRGINIA. 359 

lumber was the object of the defendants, and the sub- 1868. 
ject-matter of the contract. With the sale of the tim- |^m?^ 
ber, the plaintiff coupled the further undertaking to ^^. 
have it sawed according to orders; and when dried in & Co. 
a particular mode, to deliver in the city of Richmond. Butler. 
What was the design of stipulating that the timber 
should be merchantable^ if the same quality was not 
to attach to the lumber into which it was to be con- 
verted ? What is the meaning of merchantable tim- 
ber, if it be not timber that will make merchantable 
lumber ? The application of this epithet to the tim- 
ber, doubtless superseded with the contracting parties 
the propriety of its repetition in regard to the lumber, 
because it is not reasonable to suppose that the parties 
could have contemplated anything but merchantable 
lumber as the product of merchantable timber; or 
could have imagined any other test of merchantable 
timber except its capacity to make merchantable lum- 
ber. 

The ambiguity of this contract in this particular, is 
also removed by the dealings of the parties under it. 
The plaintiff caused the lumber, as delivered, to be 
measured, and certified by the measurer as merchant- 
able. These certificates of measurement and quality 
were transmitted by the plaintiff, and recognized by 
him as due to the defendants. They may, therefore, [836 
be considered as his practical interpretation of his ob- 
ligation for the lumber; and authoritatively explain 
whatever of ambiguity confuses the terms of the bar- 
gain. 

It might seem that the language of the court's in- 
struction should not have misled the jury. They 
would have been well warranted in construing the in- 
struction as requiring the lumber to be merchantable, 
inasmuch as it was required to be sawed from mer- 



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360 COUKT OF APPEALS OF VIBGINIA. 

1868. chan table timber; but inasmuch as the court had re- 
Term7 f^sed the defendants' instruction on this particular 
"^^^^j T point, there was ground of misconception, and ihe 
& Co. language of the instruction was not precise and defi- 
Butier. ^i^® enough. I think, therefore, this instruction was, 
under the circumstances, too restricted, and should in 
terms have required the lumber to be also merchant- 
able. 

II. In regard to the scjcond point of our enquiry — 
the control of usage over this contract — it is not cleai 
what foundation was laid for the introduction of such 
proof, or to what precise matter it was addressed. 

The term '*me»*chantable" is not one that the law 
can define; and the sense in which it was used must 
be left to the determination of the jury. For that 
purpose, they are to consider the circumstances under 
which the contract was entered into, the situations 
and business of the parties, and the usage of the lum- 
ber trade, that prevailed in the city of Richmond at 
the date of the con ti act, as the means of ascertaining 
the intentions of the parties. 

In the fulfillment of orders like those contemplated 
by the parties in this case, it must often happen that 
th'^ dimensions of the lumber furnished, in length, 
width and thickness, do not precisely correspond with 
those specified in the orders. 

As a general principle, usage cannot be allowed to 
control the execution of the orders, or justify a de- 
337] parture from them; but an exception may arise upoa 
proofs — namely, if it should appear that there was an 
established usage, showing what should be deemed a 
substantial and suflBcient compliance with such orden, 
it might be proved to ascertain the sense in which the 
orders were understood by the parties — whether they 
were to be presumed as contracting in reference » 



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COURT OF APPEALS OF VIRGINIA. 3t)l 

sQch usage, and whether ao exact, mathematical com- 1868. 
pliance was intended ; or if not, what approximation xer^^ 
to it would satisfy the contiact. For this purpose, "^"T'T 
too, the usage to be referred to, is that which pre- & Co. 
vailed in Kichraond at the date of the contracts, for Butler. 
that alone musi be supposed to have been in the con- 
templation of the parties. 

I am, therefore, of opinion, the judgment of the 
court below should be reversed, and the case sent back 
for another trial, in conformity with the principles in- 
dicated. 

The other judges concurred in the opinion of Rives^ 
J. 

JUDOMENT REVERSED. 



Vol. xviii — 46 



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362 COURT OF APPEALS OF VIRGINIA. 



1868. DeVoss (& als. V. City of Richmond. 

April 
Term. 
338] April 15. 

1. In exercising the power to borrow money, a municipal corpora- 

tion is not exercising sovereign powers, but is responsible for 
the acts of its agents as a private corporation. 

2. An individual purchasing the bonds of a municipal corporation, 

and having no actual notice of any special directions given to 
the officers of the company in relation to the particular 
bonds purchased, will only be bound by such directions if he 
has been wilfully ignorant of them ; and not merely where 
there has been a want of caution. 

3. The District Court of the Confederate States confiscated certain 

bonds of the City of Richmond, and by its decree directed 
the City Council to issue bonds in lieu of those so confiscated 
to its receiver. The Council, by resolution, directed its offi- 
cers to issue the bonds as directed by the decree ; but to in- 
sert on the face of the bonds so issued, and on the books of 
the .office, that it was so issued in lieu of a confiscated bond ; 
and to do this upon every re-issue of the bond. The officer 
obeyed the directions on the first issue of the bond, but 
failed to do it upon the re-issue of the bond ; and it was pur- 
chased by a party having no knowledge that it was such a 
bond. The City is bound to pay the bond. 

In December, 18G6, the City of Richmond filed a 
bill against E. W. DeVoss, R. H. Maury & Co. and 
Asa Otis, in which it was stated that there were then 
outstanding two bonds of the city, each for the same 
sum of twenty-three hundred dollars, of the funded 
debt of the city, one of which was held by Otis and 
339] the other by DeYoss. The plaintiff was advised that 



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COURT OF APPEALS OF VIBGINIA. 363 

the bond held by Otis was valid, and that the bond 1868. 
held by DeVoss was not a valid claim agairst the city. xerm. 
That Otis, who was a citizen of Massachusetts prior to "^^ 
the late war, held the bond of the city No. 7, for the & als. 
sum of twenty- three hundred dollars, on which he had q-Jj of 
received interest up to July 1st, 1861. That from ^^^" 
July 1st, 18 61, to some time in the year 1865, the 
government of the Confederate States exercised over 
the greater portion of the State of Virginia, and cer- 
tainly over the city of Kichnc ond and its inhabitants, 
all the powers and functions of a legitimate sovereignty 
exacting obedience to its laws and measures from all 
persons, municipal bodies and bodies corporate; and 
among these were certain laws sequestrating and con- 
fiscating to the use of the Confederate States all 
property, rights and credits within its limits which 
belonged to the citizens of the United States, as the 
estate of alien enemies; and the courts of the Confed- 
erate States were charged with the execution of these 
laws. That in a suit in the District Court of said Con- 
federate States for the Eastern District of Virginia, 
between the Confederate States and the City of Rich- 
mond, the court by its decree confiscated the debt due 
upon the bond of Otis, along with many others alike 
situated, to the use of the Confederate States, as the 
property of an alien enemy, and commanded the said 
city by its decree to issue to Henry L. Brooke, as re- 
ceiver of the said court, a new bond for the said debt 
of twenty-three hundred dollars, aid directed the said 
Brooke, when the said bond should be received by him, 
to sell the same for the use of the Confederate States. 
That the Council of the City adopted a resolution : 
*'That in obedience to a decree of the District Court 
of the Confederate States of America for the Eastern 
District of Virginia, made April 3d, 1862, in a suit 



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364 COURT OF APPEALS OF TIRGINIA. 

1868. between the Confederate States of America and the 
Tera. C^^y ^^ Richmond, bonds of the city of Richmond be 

"TTt: issued to Henry L. Brooke, receiver of said court, as 

De\ OSS '^ ' ' 

& als. directed by said decree, and that upon the books of 
City of ^^^ auditor, and also upon the face of the bonds, it 

Rich- gjia^ii be stated on account of what bonds said new 
mond. 
340] bonds are issued. And whenever said bonds are 

transferred, thev shall show that the bonds issued are 
on aocount of bonds mentioned in said decree. And 
the auditor is hereby directed to pay to the said H. L 
Brooke, leceiver as aforesaid, the interest now due 
upon the aforesaid bonds as directed in said decree.'* 
That in pursuance of said decree and resolution, the 
interest was paid to Brooke, and a bond No. 40, was 
issued to him by the auditor in place of the bond of 
Otis, on the face of which it was stated : *'Be it 
known, that the City of Richmond is indebted to H. 
L. Brooke, receiver of the District Couit of the Con- 
fedeiate States of America for the Eastern District of 
Virginia, in lieu of bond No. 7, standing in the name 
of Asa Otis, and sequestrated by the decree of said 
court on the 3d of April, 1862, in the case of TAc 
Confederate States v. The City of Richmond^ and his 
assigns, in the sum of $2,300 redeemable 1st of July, 
1891, and bearing interest at the rate of ^xnper cent, 
per aiuium from the 1st of January, 1862, payable 
semi-annually 1st of January and 1st of July;" which 
bond was dated 15th of April, 1862. 

The bill further stated that Brooke passed the bond 
to R. II. Maury & Co., who, being the holders there- 
of, applied to the auditor for a new bond; and they 
having surrendered the bond, the auditor issued to 
them a new bond, in which they were the obligees, 
but omitted tc make the said new bond sho\v on its 
face that it was on account of a bond mentioned in 



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COURT OF APPEALS OF VIRGINIA. 365 

said decree. That this omission was without the 1868. 
authority or sanction of the City, by its Council or xera. 
otherwise ; the aforesaid resolution beinff at that time, "r~" — 
and ever since its adoption, in full force. The bill Aals. 
charges that Maury & Co. took the bond with notice city of 
that it was given in lieu of the bond of Otis ; and that ^^^^' 
afterwards they passed it cff to DeVoss, whc in like [341 
rcanner obtained a new bond, payable to himself, in 
the place of the one he surrendered. 

The prayer of the bill was for a surrender of the 
bond held by DeVoss, and for general relief. 

The r3solution of the Council is pioperly stated in 
the bill; but there is no copy of the bond issued to 
Brooke in the record, though the bill makes it an ex- 
hibit. This bond \^as, on the 29th of October, 1862, 
assigned by the attorney of Brooke to R. H. Maury 
& Co., and the bond issued to them, and that after- 
wards issued to DeVoss, is in the usual form of bonds 
issued by the City of Richmond; and is executed in 
the mode prescribed by the ordinance of the city. 

DeVoss, in his answer, denied all knowledge of the 
ccnfiscation of the bond of Otis, all knowledge of the 
resolution of the Council, or that the bond he held was 
issued on account of Otis' bond. And he said that it 
had been his purpose not to purchase confiscated 
property, and he invariably asked if the stock he pro- 
posed to buy was free from the taint of confiscation; 
and it was only upon such assurance that he w^ould 
buy. He says that the bond issued to R. II. Maury 
4& Co. was not delivered to him; but that Maury & 
Co. delivered to him the bond he holds payable to 
himself. 

R. H. Maury & Co., by their answer, denied all 
notice that the bond they received was issued in place 
of the bond issued to Brooke. They say, that a sus- 



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366 COURT OF APPEAL8 OF VIRGINIA. 

1868. picion that such was the fact would have prevented 

Term, their purchase of it, it being their settled practice not 

~TrTr — to buy stocks or other securities, the title to which 

& als. was derived through proceedings of sequestration in 

Q\iy Qf the Confederate courts. That they bought the bond 

^^^^^" of Lancaster & Co., brokers, who did not inform them 

342] of the name of the holder of the bond or exhibit it to 

them; and that upon their agreeing to buy, Lancaster 

& Co. piocured a bond to be issued to the respondents, 

which was in the usual form. 

The charter of the city gives authority to borrow 
money without any restrictions as to the amount, and 
the ordinance of the city, which is substantially taken 
from the Act of Assembly, prescribes the mode in 
which bonds or certiflcates of debt of the city shall be 
issued and executed. The practice in the transfer of 
bonds is generally for the owner to give a power of 
attorney to his agent who sells, to transfer the bond 
on the books of the auditor ; and when a sale is made, 
this agent has the transfer made and the new bond 
issued payable to the purchaser, which the agent de- 
livers to the purchaser. 

DeVoss having been in Europe during the period of 
these transactions, his agent, who made the purchase 
for him, fully sustains his answer as to notice and his 
refusing to deal in securities derived under the seques- 
tration acts. 

The cause came on to be heard on the 19th of De- 
cember, 18CG, and it was agreed that the court might 
refer to the charter of the city, as well as it ordinances 
and entries upon the books of the auditor of the city. 
And thereupon the court held, that the bond held by 
DeVoss constituted no binding and valid obligation 
upon the City of Richmond; and that the complainant 
be fore\er quieted and acquitted from all claims or 



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COURT OF APPEALS OF VIRGINIA. * 367 

demands by reasoD of the same. From this decree, 1868. 

DeVoss applied w this court for an appeal, which was Term, 
allowed. 



DeVoss 
&als. 



Page <b Maury and «/. Alfred Jones^ for the appel- Q\^y of 

its. 

Daniel^ for the appellee. 



lants. ^i'c^, 

mond 



JoYNEs, J. The only point decided by the Circuit 
Court was, that the bond held by DeVoss imposed no 
valid obligation on the city, and the propriety of that [343 
decision is the only question upon which our decision 
has been invoked. 

The bill proceeds upon the assumption that the de- 
cree of the court of the Confederate States, by which 
the bond held by Otis is alleged to have been seques- 
tered and confiscated, and in pursuance of which ii 
was sold, did not protect the city against his claim, 
after the suppression of the Confederate Government. 
This assumption is controverted by the answer of De- 
Voss, which denies that rights growing up under the 
laws of that government and the decrees of its courts, 
while it was de facto the government, expired with 
it on its overthrow. This question, however, was not 
discussed in the argument in this court. The proceed- 
ings and decree of the Confederate court aie not ex- 
hibited, nor their existence even admitted by the 
pleadings; and though the existence, of a law for the 
confiscation of the property of alien enemies is ad- 
mitted, the special terms of the law do not appear. 
There are not suflicient materials in the record, there- 
fore, to enable the court to consider and decide upo n 
the legal effect of the decree of confiscation, if we 
were aske«l to do so. And accordingly, we have not 
considered that question. I shall assume, for the pur- 



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368 CX)UBT OF APPEALS OF VIBGINIA. 

1868. poses of the case, as was assumed in the argument, 
Term. ^^^^ ^^® decree of confiscation and the proceedings 

-r-r;^ under it did not afifect the title of Otis to claim pav- 

&al8. ment of the bond held by him, or, of themselves, give 
City of validity to the bond held by DeYoss. And besides, 
Rj^hr it would not be competent to consider the effect of 

mond. ^ 

that decree as between the City and Otis, because no 
such question has been raised in the pleadings. 
Whatever may be the rights of DeVoss, the City is 
not at liberty, on the present pleadings, to controvert 
the title of Otis. 

It is conceded that the bond held by DeYoss was 
executed and issued to him by the officers of the city 
to whom was entrusted, by its laws, the general duty 
344] of executing and issuing bonds. In the argument for 
the appellants, these officers were treated as the agents 
of the City, and the general principles of the law of 
agency were regarded as applying to the city in re- 
spect to the acts and functions of such officers, in like 
manner as to other corporations and their officers and 
servants. 

For the appellee, it vvas contended that the func- 
tions of these officers in reference to the execution, 
transfer, and renewal of bonds of the city, pertain to 
the execution by the City of the powers and duties 
devolved upon it in the character of a local govern- 
ment, and thai the City cannot be held liable for their 
misfeasance or negligence in the discharge of those 
functions, according to the principles on which this 
court proceeded in Citj/ of Bichmond v. Long^s 
adm'r, lY Gratt. 375. 

]^ut that principle has no application to this case. 
The power which was in question in the case referred 
to, was one of those conferred upon the city foi public 
purposes only, and pertained to its character as a 



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COURT OF APPEALS OF VIRGINIA. 369 

local government. It was not conferred with any 1868. 
view to the private advantage or emolument of the xenn. 

city. But the power to borrow money is bestowed 'TT^ 

primarily for the advantage and benefit of the City. Aals. 
It has no direct relation to the powers and duties of q^^' ^f 
the City as a local government. It may be exercised ^^^h- 
in a particular case with a view to the better execu- 
tion of those powers and duties, but it is not essential 
to their execution. It involves no exercise of sover- 
eign power over the persons or i roperty of the citi- 
zens, but is such a power as may be exercised by a 
private individual, or by an ordinary trading or com- 
mercial corporation. Such a power is entirely dis- 
tinct, in contemplation of law, from those which are 
bestowed upon the city for public purposes only, and 
pertain to its functions as a local government, exercis- 
ing, for that purpose, a portion of the sovereign 
power of the State. The city, quoad hoc, is a private [345 
corporation. This distinction is taken by Sir Lloyd 
Kenyon, Master of the EoUs, in Moodaly v. Emt 
India Company, 1 Brown C. C. 469. The plaintiff 
had taken a lease from the Company granting him 
permission to supply the inhabitants of Madras with 
tobacco for ten years. Before the term was out, the 
Company dispossessed the plaintiff, and granted the 
privilege to another. The plaintilBf filed a bill of dis- 
covery, with a view to bringing an action against the 
Company. It was objected on behalf of the defen- 
dants, that the act complained of was incident to their 
character as a sovereign power, and could not be 
made the subject of a suit. His Honor admitted that 
no suit would lie against a sovereign power for any 
thing done in that capacity; but he held that the de- 
fendants, in that case, did not come within the rule. 
He said: *'They have rights as a sovereign power; 
Vol. xviii — 47 



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370 COUKT OF APPEALS OF VIRGINIA. 

1868. they have also duties as individuals; if they enter into 
Term, bonds in India, the sums secured may be recovered 

"j~r; here. So in this ease, as a private company, they 

&a\8. have entered into a private contract, to which they 
City of ^^st be liable. ' ' 

Rich- T]j^3 power to borrow money is, of course, a discre- 
tionary power, to be executed or not, at the pleasure 
of the citj, and in such manner as it may see tit. 
But when the City, through its proper authoriti^, 
has determined to exercise this power, and has pre- 
scribed how the bonds shall be executed, how they 
shall be transferred, and how new bonds shall be 
issued to the assignees, duties devolve upon the City 
which are absolute and purely ministerial. The holder 
of a bond has a right to transfer it. The City is 
bound to allow the transfer; to make the proper 
registry; and to issue a new bond to the assignee. 
For a refusal to perform these duties, an action will 
lie against the City, though perhaps the performance 
of them cannot be enforced by mandamus, Angell 
& Ames on Corp. § 381, § 710. The City may, and, 

346] indeed, must, from the necessity of the case, confide 
the performance of these duties to officers and agents; 
but they perform them in the place and stead of the 
city ; their acts, in the execution of these duties, are 
the acts of the City. They are the mere agents and 
servants of the City, and in such a case the maxim 
respondeat superior applies. Sawyer v. Corse^ 17 
Gratt. 230. See Bailey v. Mayor ckc. of New York^ 
3 Hill R. 531 ; City of Dayton v. Plase, 4 Ohio N. 
S. E. 80; Clark v. Mayor &c, of WashinyUm^ 12 
AVheat. R. 40; Thayer v. BosUm, 19 Pick. R. 511; 
Welghtman v. Corporation of Washlnyton^ 1 Black. 
U. S. R. 39; Conrad v. Ithaca, 16 N. Y. R. 158, and 
cases cited. 



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COCRT OF APPEALS OF VIRGINIA. 371 

It was contended for the appellee that DeVoss 1868. 

must be taken to have had notice of the character and Xem. 

history of the bond issued to him. It is not pre- ~7r~y 

tended that he had actual notice, and it is very clear & als. 

that he did not have such notice. But he purchased city of 

the bond from R. H. Maurv & Cc, by whom it was ^^^^" 

* *^ mond. 

transferred to him in February, 1863; and it was 
transferred to them in October, 1862, by H. L. 
Brooke, receiver, under the decree ot confiscation. 
From this, it is argued, DeVoss must be charged with 
constructive notice of the character of the bond, 
which he might have ascertained if he had traced it 
back through the books of the Auditor. But I do 
not think so. The bond delivered to DeVoss by 
Manry & Co. was perfectly regular on its face. De- 
Voss had no reason to suspect that it was a bond 
issued in lieu of one that had been confiscated, but 
he had the best reason to believe the contrary. For 
1. The bond did not contain the statement which such 
bonds were required to contain by the resolution of 
the Council. And 2. Maury & Co. knew that De- 
Voss would not purchase such bonds, and their de- 
Uvery of this bond to him was an assurance that it 
did not belong to that class. It does not appear that 
he ever saw the bond which Maury & Co. held; bui; 
if he had seen it, that, too, was regular on its face. [347 
There was nothing, therefore, to excite his suspicion, 
or to put him on enquiry. All that can be said is, 
that he might have ascertained the facts if he had 
gone to the Auditor's office and traced the bond back 
to its source. But that is not enough to charge him 
with constructive notice of what he might there have 
ascertained, in the absence of anything to put hin: on 
enquiry. 2 Rob. Pr. 29; Opinion of Cabell, J., in 
French v. Loyal Company^ 5 Leigh 627. And ac- 



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372 COURT OF APPEALS OF VIRGINIA. 

1868. cording to the lecent cases in England, a party will 

Term. ^^^ ^e charged with constructive notice, unless the 

'z—, circumstances are such that the court can sav that it 
DeVoss 

&al8. was his duty to acquiie the knowledge in question, 
Qity of ^^^ ^^^^ i^^s failure to obtain it was the result of cul- 
^^^^' pable negligence. It is not enough that he shodd, 
from a want of prudent caution, have neglected to 
make enquiries; but he must have designedly ab- 
stained from such enquiries, for the purpose of avoid- 
ing ki^owledge; there must be a willful blindn^s, and 
not mere want of caution. Jones v. Smithy 1 Haie 
H. 55; S. C. on appeal, 1 Phillips R. 244; Wares. 
Lord Egtnont^ 31 Eng. L. and Eq. E. 89. It was 
argued that DeVoss claims under assignment from 
Maury, and that it was his duty to look to Maury's 
title, by tracing the bond back through the previous 
tranfers. This, however, is not the title which De- 
Voss holds. He holds a new bond given directly to 
himself. The nature of this title will be more full? 
considered hereafter. 

The validity of the bond held by DeVoss is con^o- 
verted on the ground that the officers of tht' City by 
whom it was issued exceeded their authority in ddng 
so. This objection is founded on the resolutiot of 
the Council passed April 14, 1862. This resolution 
directed, 1. That bonds of the city should be issued 
to H. L. Brooke, receiver, in obedience to the decree 
of confiscation ; and 2, in substance, that it should be 
348] stated on the face of such bonds, and also on the face 
of all others that might be given in place of them, in 
case of transfer, that they were issued in place of 
bonds which had been confiscated. The object of thk 
last provision was to gi\e notice to purchasers of thii 
class of bonds, so that they should cease to be bind- 



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OOUKT OF APPEALS OF VIKGINIA. 373 

ins: on the citv in case the decree of confiscatiou 1868. 

* Anril 

should be oveithrown by the event of the war. Term. 

It is undoubtedly true that it was the intention of "r~^ 
the Council, that no bond in lieu of a conficated bond Aals. 
should be issued in any case without the special state- city of 
raent on its face required by the resolution. The ^^^" 
prohibition is as plain as if the language of the reso- 
lution had been in the form of express prohibition. 
As between the City and the officers, therefore, it 
limited, in respect to this class of bonds, the authority 
of the officers. 

But the authority of these officers to transfer bonds 
and to issue new ones was not derived from this reso- 
lution. They had a general authority for these pur- 
poses conferred by the ordinance. They had long 
been in the habit also of making such transfers and 
renewals, from which the public might have inferred 
a general authority to do so. This resolution, with 
a view to the protection of the City, directed the offi- 
cers not to exercise their authority in respect to this 
particular class of bonds except in a particular way. 
The officers were relied upon to observe this direc- 
tion, and it does not appear in the record that the 
resolution was ever communicated to the public. 
There appears to be strong ground, therefore, to 
say, as was contended by the counsel for the appel- 
lants, that in respect to the public, this resolution did 
not operate as a limitation of the apparent power of 
the officers, which remained the same as before, 
but was only in the nature of private instructions 
as to the manner in which they should execute 
their authority in particular cases. If so, it is clear 
that the act of the officers in issuing the bond to De- 
Vcss, in conformity with their apparent authority, [349 



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374 OOUBT OF APPEALS OF VIRGINIA. 

1868. was not vitated by their omission to observe the di- 

T^. Taction contained in the resoultion. 

"r~r: But under the ordinance the officers had no au- 

DeVoss 

& als. thority to issue a new bond without the surrender of the 

Citv of ^Jd ^^^^ except in the case of a lost bond. The power 

^*^^' to make the first issue of bonds in place of those which 
mond. '^ 

had been confiscated was derived, therefore, from this 
resolution alone. It was conferred on special terms 
in this, that the bonds were to be in a particular form, 
v^hich was prescribed for an important purpose. 
Every bond that might be issued in place of these was 
also to have the same form. In thig view, it may be 
contended, that this resolution had the effect, in re- 
spect to this class of bonds, of taking away Irom the 
officers the general power which they before had, and 
of substituting for it a new and limits authority, of 
which the public must take notice. I do not think it 
worth while to discuss this question, and will assume, 
for the purposes of the argument, that the view just 
stated is a sound one. 

Assuming that the officers had then only a limited 
authority, of the extent of which the public were 
bound to take notice, in respect to the renewal of this 
class of bonds, the counsel for the appellee contended, 
that the bond held by DeVoss, which was not issued 
in conformity with this authority, cannot be held 
binding on the city. The counsel for the appellants 
contended, on the other hand, that the City cannot 
be allowed to avail itself of this defence against De- 
Voss, who took the bond issued to him without a 
knowledge of the fact that the officers exceeded their 
authority in issuing it. And I think this position 
may be maintained on principle and authority. 

The City of liichmond is authorized by its charter 
to contract loans, without limit as to amount, and to 



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COUET OF APPEALS OF VIRGINIA. 376 

issue bonds or certificates of debt for the money 1868. 
borrowed. It provided by an ordinance, which is a Term. 

traDscript of a law of the State, (Code of 1860, p. "^rz 

264,) for the execution, transfer and renewal of these & als. 
bonds or certificates. They are to be under seal, to city of 
be registered in the office of the auditor, and to be ^^^^" 
subscribed by the president of the council and the [350 
chamberlain. Upon the surrender of a certificate at 
the office in which it is registered, a transfer may be 
made of the whole amount, or any part thereof, by the 
person appearing on the b<joks to be the owner, or by 
another bearing a power of attorney from him to make 
the transfer. When a transfer is made, the old certifi- 
cate is to be cancelled and filed in the office of the 
chamberlain, and one or more new certificates issued. 
New certificates may be obtained by a holder, on appli- 
cation, in place of an old one, \^ here there has been no 
transfer. Every new certificate is to be registered, 
signed and counter signed like the former one. When 
a certificate has been lost, the holder may obtain a 
new one on affidavit and three months' advertisement 
of the loss, and upon giving bond and security to in- 
demnify aU persons against any loss by reason of issu- 
ing the new certificate. 

The same ordinance also provides that the person 
appearing on the books of the office in which any cer- 
tificate is registered, as the owner thereof, shall be 
deemed the owner as regards the City, so as to make 
vaUd all payments tc him on account thereof by the 
City, made before a transfer of the certificate on the 
books of the officer. But if the person so appearing 
on the books as owner shall bona Jide^ and for valu- 
able consideration, sell, pledge, or otherwise dispose 
of a certificate to another, and deliver to him the cer- 
tificate, with a power of attorney authorizing the 



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376 COURT OF APPEALS OF VIKGINIA. 

1868. transfer thereof on the books of the proper office, the 
Tern, ^itl^ ^* ^^^ former to said certificate (both at law and 

-7-7: in equity) shall vest in the latter for the whole amount 

De\ 088 ^ " ^ 

& ala. of the certificate, or so much thereof as may be neces- 

City of ^^y ^ effect the purpose of the sale, pledge, or other 
^^^^' disposition, and it shall so vest, not only as between 
351] the parties themselves, but also as against the credi- 
tors of, and subsequent purchasers from, the former, 
subject to the last preceding provision in respect to 
payments by the City. 

Under these arrangements, the bonds of the City 
were put upon the market. It is manifest that a lead- 
ing object contemplated by these arrangements was 
to give security to the title of holders of the bonds, 
and thus to promote their credit. If the bonds had 
been made so as to pass by assignment merely, each 
successive assignee would have taken only an equitable 
title, and the bonds in his hands would have been sub- 
ject to the same defences to which they would have 
been subject in the hands of any prior holder. It is 
provided, however, that upon each successive trans- 
fer, a new bond shall be issued in the name of the 
transferee, which will give him a legal title to demand 
payment of the money. See Union Bcmk v. Laird^ 
2 Wheat. R. 390; Black & aL v. Zacharie tfc Co. 3 
How. U. S. R. 483; Fisher cfe al. v. B<8€x Bank, 5 
Gray's R. 373. So an assignee for value, who re- 
ceives a bond from the holder with a power of attor- 
ney to transfer it, acquires, under the ordinance, the 
legal title of the holder before a transfer on the books, 
subject only to the right of the city to make payment 
to the registered owner. The new certificate, or the 
delivery of an old certificate with a power of attorney 
to transfer it, will cut off all defences which the City 
might have against any prior holder. For the ques- 



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COURT OF APPEALS OF VIRGINIA. 377 

tion, whether the holder of an obligation for th*^ pay- 1868 
men t of money is subject to the defences of the debtor Term, 
against a prior holder, depends, in the absence of "z~r; 

UG \ OSS 

notice of fraud, upon the character of his title, as Aala. 
legal or equitable. If it is an ordinal y chose in city of 
action, and therefore only assignable in equity, it is ^^^^" 
subject to all the rights, legal and equitable, which 
the debtor had against a former holder. For, while [352 
a court of equity will sustain the rights of the assig- 
nee, it will also sustain the rights of a debtor existing 
beforo notice of the assignment, and these being prior 
in time of those of the assignee, prevail over them. 
But where the assignee takes the legal title without 
fraud or notice, this principle does not apply; the 
title of the holder is absolute; and all defences of the 
debtor against prior holders aie cut off. 

The honafide holder of a bond issued to him stands, 
therefore, in this respect, in the position of the holder 
of a bill of exchange or negotiable note. This is con- 
clusive to show that he is not bound to look behind 
the bond. The City cannot deny the title of the reg- 
istered owner, who still holds his bond. Any other 
principle would lead to embarrassment and incon- 
venience, and greatly impair the credit of the bond. 
To require a holder to investigate the previous history 
of his bond, he must examine the books in the audi- 
tor's office and the files in the chamberlain's office, 
which are not open to public inspection. It would 
often be impossible for him to trace the history of his 
bond, from the union, under one name, of a number 
of bonds bought from different persons. On the 
other band, it is the duty of .the officers of the City 
to make every necessary investigation, at each succes- 
sive transfer, and they have all the means of doing so. 

It is of the very nature of such a bond, and the 
Vol. xvni — 48 



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378 COURT OF APPEALS OF VIRGINIA. 

1868. very object for which it is issued, that it shall fumisli 

Term, authentic and conclusive evidence of the holder's title 

"r~~ — to demand the money it calls for. Such is the gene- 

UG V OSS 

& als. ral understanding upon which such bonds and stocks 

City of ^re bought and sold in the market ; and any oth» 

Rich- principle would be fatal to the credit of such securi- 
mond. ^ ^ 

ties. In Davis v. Bank of Engla/ad^ 2 Bing. R. 393 

(9 Eng. C. L. R. 444), when the Bank had permitted 

certain stock in the public funds standing on the 

books of the Bank to be transferred under a forged 

353] power of attorney, the Court of Common Pleas said: 

''We are not called on to decide whether those who 

purchase the stock transferred to them under the 

forged power might require the Bank to confirm that 

purchase to them and to pay them the dividends on 

such stocks, or whether their neglect to enquire into 

the authenticity of the power of attorney might not 

throw the loss on them that has been occasioned by 

the forgeries; but to prevent, as far as we can, the 

alarm which an argument urged on behalf of the Bank 

is likely to excite, we will say that the Bank cannofe 

refuse to pay the dividends to subsequent purchases 

of their stocks. If the Bank should say to such sab* 

sequent purchasers, the persons of whom you bou^ 

were not legally possessed of the stock they sold yoa, 

the answer would be, the bank, in the bocks whick 

the law requires them to keep, and for keeping whidi 

they receive a remuneration from the public, have 

registered these presons as the owners of these stockii 

and the Bank cannot be permitted to say that such; 

persons were not the owners. If this be not the law, 

who will purchase stock, or who can be certain ti^< 

the stock w hich he holds belongs to him ? It 

ever been an object of the Legislature to give facility! 

to the transfer of shares in the public funds. Thk 



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COUBT OF APPEALS OF VIRGINIA. 379 

facility of transfer is one of the advantages belonging 1868. 
to this species of property, and this advantage would xera. 

be entirely destroyed if a purchaser should be re- "J^Tt 

quired to look to the regularity of the transfer to all & als. 
the various persons through whom such stock had cityof 
passed. Indeed, from the manner in which stock ^^^^: 
passes from man to man, from the union of stock 
bought of different persons under the same name, and 
the impossibility of distinguishing what was regularly 
transferred from what was not, it is impossible to 
trace the title of stock as you can that of an estate. 
You cannot look further, nor is it the practice ever to 
attempt to look further than the bank books for the [354 
title of the person who proposes to transfer to you." 

In conformity with these views, it was held in Bank 
of Kentucky v. Schuylkill Bank^ 1 Parsons Sel. Ca. 
180, in reference to spurious stock fraudulently issued 
by an agent of the bank, and transferred from time 
to time to innocent purchasers, that against bona 
fide holders of such stock the bank ''would be estop- 
ped from going beyond its last certificate in any ques- 
tion between the bank and such holder, touching the 
obligatory force of such certificate on the corporation. " 
p. 250. To the same effect is the opinion of Red- 
field, J., in Sabin v. Bank of Woodstock^ 21 Verm. 
E. 353, cited with approbation in Fisher v. Essex 
Bank, 5 Gray R. 373. 

The common course of business in the sale and pur- 
chase of such bonds show that such is the general un- 
derstanding as to the character and effect of the bond. 
A party having a bond to sell delivers it to a broker, 
with a power of attorney authorizing an attorney to 

transfer it to , the name of the transfer- 

ree being left blank. When a purchaser is found, the 
blank is filled with the nance, the transfer is made on 



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380 COURT OF APPEALS OF VIRGINIA. 

1868. the books, and a ne\^ bond issues to the purchaser. 
Term. The purchaser takes the bond, but he seldom knows, 

"DeVo^ and never cares, who held the previous bond. 
& als. There is nothing unreasonable or harsh in holding 
City of the City to be estopped from disputing the title of 
mond ^®^^S8. On the contrary, it is highly just and rea- 
sonable. The Ci*^y appointed officers to issue its 
bonds, in whom it confided. It knew that its bonds 
were the subject of daily traffic, in and out of Kich- 
mond. From the nature of the business, it must have 
expected and intended the public to confide in these 
officers. There were two classes of bonds to be 
issued, and the class to ^hich each bond belonged 
was to be indicated by its form. The officers were 
specially entrusted by the city with that duty; they 

355] had the means of knowing the fact in every case, and 
could not make a mistake without gross negligence. 
These means were not equally open to the public. 

Under these circumstances, it was natural that pur- 
chasers should presume that the officers did their duty. 
They had a right to rely on such a presumption in 
their dealings. Indeed, it was necessary for them to 
do so; and it would be unjust to allow the City to say 
to them, whea they dealt in good faith, that they 
ought not to have relied on it. 

The case of T/ie Royal British Bank v. TurquamU 
5 El. & Bl. R. 248 (S.5 E. C. L. E.), was an action 
against the official manager of a railway company 
(that being the mode of suing the company), upon a 
bond for £2,000, payable to the plaintiff, and signed 
by two directors, under the seal of the company. 
There was a plea setting out a clause in the deed of 
settlement of the company, which provided that the 
company might borrow, on bond, such sums as should, 
from time to time, by a general resolution of the com- 



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COUKT OF APPEALS OF VIKGINIA. 381 

pany, be allowed to be borrowed and averring that 1868. 
there was no such resolution authorizing the making xirm. 
of this bond. The Court of Q. B. held the plea to be "7""" — 
bad. The judgment was aflSimed in the Exchequer &ah. 
Chamber. 6 El. & LI. R. 327 (88 Eng. C. L. R.) city of 
Jervis, C. J., delivering the opinion of the whole ^^^'^^" 
court, said: ^*We may now take for granted that the 
dealings with these companies are not like dealing 
with other partnerships, and that the parties dealing 
with them are bound to read the statute and the deed 
of settlement. But they are not bound to do more. 
And the party here, on reading the deed of settle- 
ment, would find, not a prohibition from borrowing, 
but a j>ermission to do so on c«rtain conJilions. 
Finding that the authority might be made complete, 
by a resolution, he would have a right to infer the 
fact of a resolution authorizmg that which, on the face 
of the documents, appeared to be legitimately done. [356 

In the case of The PHnce of Wales Co, v. Hard- 
ing, El. Bl. & El. 183 (96 Eng. C. L. R.), which was 
an action against the official managei of the Athen- 
aeum Assurance Company upon a policy, the deed of 
settlement provided (sect. 20,) that the common seal 
should not be affixed to any policy, except by the 
order of three directors, signed by them, and counter- 
signed by the manager; and that (sect. 28), every 
policy should be given under the hands of not less 
than three directors, and sealed with the common seal. 
The policy in question was sealed with the common 
seal and signed by three directors, one of whom was 
manager; but there was no previous order made, as 
required by the 20th section. The case was elabo- 
rately argued by the most eminent counsel. It was ' 
contended for the defendant, that the previous order 
required by the 20th section was a condition prece- 



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382 COURT OF APPEALS OF VIRGINIA. 

1868. dent to the power of the directors to affix the seal Ui 

Tem. ^^^ policy; that the directors were agents, with 

-— limited authority; that those who contracted with 

DeVoss 
&al8. them had notice of the limits, because the statute conn 

City of f<^rred the authority subject to the provisions of th< 

Rich- act and of the deed of settlement, which was Teois^ 
mond. ' ^ 

tered for public inspection ; and that the shareholders. 

as the principals, had a right to repudiate every pohcj 

not executed in pursuance of the authority given t<j 

the directors. The Court of Q. B., in an elaborate 

judgment, overruled this argument, and held that thi 

policy was binding on the company. It was hel( 

that a person receiving a policy in good faith, had i 

right to presume that the directors who signed it ha< 

done their duty, and that they had the preliminar; 

order for executing It. 

The case of The Royal Bank v. Tnrqnand ^\ 

cited with approval by the Supreme Court in Corti 

missionera of Knox county v. Asptnwall, 21 How. U 

S. K. 539. The Board of Commissioners of a countj 

357] were authorized by statute to subscribe for railrow 

stock, and to issue bonds of the county therefor, ii 

case a majority of the voters of the county should « 

determine, after a certain notice should be given a 

the time and place of election. The Board subscribe* 

for the stock and issued the bonds, purporting to ac 

in compliance with the statute. The required notio 

was not given, and it was contended that consequently 

the power to issue the bonds was never vested in th' 

Board. It was conceded by the court that every per 

son dealing in the bonds were chargeable with a knowl 

edge of the statute under which they were issued, an* 

' that as the Board was acting under del^atei 

authority, he must show that the authority was prop 

erly conferred. But it was held, 1. That as the bcmd 



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COURT OF APPEALS OF VIRGINIA. 383 

imported on their face a compliance with the law 1868. 
under which they were issued, the purchaser was not Term, 
bound to look further for evidence of a compliance "r~" 

^ Dev 088 

with the conditions to the grant of the power. ''The Aals. 
purchaser of the bonds had a right to assume that the city of 
vote of the county, which was made a conditicir of ^^^*V 
the grant of the power, had been obtained, from the 
fact of the subscription by the Board to the stock of 
the Railroad company and the issuing of the bonds." 
2. That upon the true construction of the statute, the 
Board weie the proper judges whether a majority of 
the votes in the county had been cast in favor of the 
subscription. The court said: ''The right of the 
Board to act in an execution of the authority is placed 
upon the fact that a majority of the votes had been 
cast in favor of the subscription, and to have acted 
without ascertaining it, would have been a clear viola- 
tion of duty, and the ascertainment of the fact was 
necessarily left to the enquiry and judgment of the 
Board itself, as no other tribunal was provided for the 
purpose. The Board was one, from its organization 
and general duties, fit and competent to be the depo- 
sitary of the trust thus confided to it." * '*We do 
not say that the decision of the Board would be con- [358 
elusive in a direct proceeding to enquire into the facts 
previously to the execution of the power, and before 
the rights and interests of third parties had attached ; 
but after the authority had been executed, the stock 
subscribed, and the bonds issued, and in the hands of 
innocent holders, it would be too late, even in a direct 
proceeding, to call it in question." 

This case has been followed in several subsequent 
cases in the same court, the latest of which is Super- 
visors V. Schenck^ 5 Wall. U. S. R. 772, decided in 
1867. In all these cases, the bonds in question were 



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384 COURT OF APPEALS OF VIRGINIA. 

1868. payable to bearer, and passed by delivery. That cir- 
Term. cmnstance was not expressly made a ground of deci- 

"^^ sion in the case of The Commissioners of Knox county 
&al8. V. Aspinwall^ which proceeded on the principle of the 
Qity of case of Royal Bank v. Turquand,^ where the instru- 
^^^^" ment was a common bond, payable to the plaintiff. 
In the case in 5th Wallace, the opinion, referring to 
the previous cases, says: "Where a corporation has 
power, under any circumstances, to issue negotiable 
securities, the decision of this court is, that the bona 
fide holder has a right to presume they were issued 
under the circumstances which give the requisite 
authority, and they are no more liable to be im- 
peached in the hands of such a holder than any other 
commercial paper." This ground of decision is equ- 
ally applicable to the present case. For , as we have 
already seen, the person to whom a bond of the City 
of Richmond is issued, and who takes it in good faith, 
takes a legal title, and is no more subject to defences 
which might be made against a former holder than he 
would be if he was the holder of negotiable paper. 

It was part of the duty of the officers interested 
with the transfer and renewal of bonds to ascertain, 
in every instance after April 14, 1862, whether the 
bond transferred represented a confiscated bond, and 
to certify whether it did or did not in the form of the 

359] renewed bond. When, therefore, these officers failed 
in any case, through negligence, to certify on the face 
of a bond issued by them that it repiesented a confis- 
cated bond, when such v\as the fact, it was the com- 
mon case of an agent acting negligently in the regular 
course of his employment. The law is well settled 
and familiar that, in such cases, the principal must 
bear the consequences of his agent's negligence, as 
between himself and an innocent third person, even 



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COURT OF APPEALS OF VIRGINIA. 385 

though the act or emission of the agent, which con- 1868. 
stitutes the negligence, was wholly unauthorized by Term, 
the principal, or even positively forbidden by him. 1 "177; 

^_ X-'© V OSS 

Parsons Sel. Ca. 180; 14 How. U. S. E. 486. Upon Aals. 
this principle, a bank is held to suffer for the negli- cjty of 
gence of its officer, who received from an innocent ^^^' 
person payment of a debt in forged notes, which pur- 
port to be the issue of the bank. Z7. S. Bank v. 
Bank of Georgia^ 10 Wheat. R. 333. So where an 
officer of a bank, through negligence, pays to an in- 
nocent holder a forged check, which purports to be 
drawn upon the bank by one of its customers. Levy 
V. Bank fJ. S,, 1 Binn. R. 27. And so the bank 
must bear the loss where its officer permits a transfer 
of stoct under a forged power of attorney, or is 
otherwise guilty of negligence or of fraud in the issue 
or transfer of stock. Davis v. Bank of England^ uhi 
supra ; Pollock v. National Bank^ 3 Selden R. 274; 
Bank of Kentucky v. Schuylkill Bank^ 1 Parsons Sel. 
Ca. 180; Bridgpori Bank v. N. Y. cfe N. IL R, R. 
Co., 30 Conn. R. 231; N. T. cfe N. H. R. R, Co. 
V. SchuyUr <& als.^ 34 K Y. R. 30; Sewall v. Boston 
Water Power Co. 4 Allen R. 277. 

The city bonds, as I have said, were put upon the 
market by the City, and were the subject of daily 
traffic. The public were invited to deal in them, and 
it was important to the credit of the City that they 
should do so with confidence and safet)\ To insure 
its own safety, and at the same time the safety of 
purchasers, the City undertook to mark the class of [360 
confiscated bonds. Upon principles of good faith and 
fair dealing, we must consider that the intention was, 
not only to admonish purchasers as to what bonds 
they could not buy without risk, but also to inform 
them as to what bonds they might buy with safety. 
Vol. xviir — 49 



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386 COURT OF APPEALS OF VIKGINIA. 

1868. The absence of a statement in a bond, that it repre- 

Te^m. sen ted a confiscated bond, was equivalent to arepre- 

~r~ — sentation to the person to whom it was issued, and to 
De V OSS ^ 

& als. all others who might tiade for it, that it did not rep- 
City of resent such a bond. It was, in law, the repiesenta- 
^^^^' tion of the City, because made in its behalf by oificers 
charged by it with the duty of issuing all bonds, and 
of representing on the face of each w hether it did not 
belong to the class of confiscated bonds. 

From the nature of the business, the City knew 
that this representation, conveyed bv the form of 
the bond, would be relied on, and must have intended 
that it should be. When a party has relied upon it, 
and in good faith paid his money on the faith of it, it 
would be the height of injustice to allow the City to 
say to him that it is not true, and that it was his folly 
to believe it. 

This case, therefore, falls within the principle of 
estoppel in pais^ and the city must be held liable to 
DeVoss to the same extent as if the representation, 
conveyed by the form of the bond, was in fact true. 
It is not necessary, in order to bring a case within 
this principle of estoppel, that the represontation 
should be made fraudulently, or with a positive 
intention to deceive; nor, on the other hand, is it 
enough that it has been relied on, in point of fact, 
w^hen there was no intention that it should be, or 
reasonable expectation, from the course of business 
or otherwise, that it would be. The principle ai 
stated by Lord Den man in Pickard v. Sears ^ 6 Ad. 
& El.E. 469, (33 Eng. C. L. R. 115,) is, that ''whert 
one, by his acts or conduct, wilfully causes anothar 
to believe the existence of a certain state of things, 
361] and induces him to act on that belief, so as to alttfi 
his own previous position, the former is concluded 



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COURT OF APPEALS OF VIRGINIA. 387 

from averring against the latter a different state of 1868. 
thino^ existing at the same time." In Freeman ^. Term. 
Cooke^ 2 Exch. K. (H>3, Baron Parke, deliverine: the "T7~7. 
judgraeDt of the court, said, that by the term *'\vil- &al8. 
fully," as here used by Lord Deoman, *'we must un- Q\x,y of 
derstand, if not that the party represents that to be ^*^K" 
true which he knows to be untrue, at least that he 
means his representation to be acted upon, and that 
it is acted upon accordingly; and if, whatever a man's 
real intejition may be, he so conducts himself that 
a reasonable man would take the representation to 
be true, acd believe that it was meant that he should 
act upon it, and did act upon it, as true, the party 
making the representation would be equally precluded 
from contesting its truth; and conduct by negligence 
or omission, w^here there is a duty cast upon a person, 
by usage of trade or otherwise, to disclose the truth, 
may often have the same effect.'' Here the duty of 
making known the truth as to the character of every 
bond issued after April 14, 1862, was cast upon the 
City by itseown undertaking. 

In a case in which a corporation put its bonds upon 
the market, under certain implied representations in- 
viting public confidence in their validity and value, but 
where no direct and express representation had been 
made to the particular purchaser, the Supreme Court 
said: '*A corporation, quite as much as an individual, 
is held to a careful adherence to truth in their dealings 
with mankind, and cannot, by their representations or 
silence, involve others in onerous engagements, and 
then defeat the calculations and claims their own con- 
duct has superinduced." Zahrinku- v. C, C, ck C. li. 
R Co.^ 23 liow. U. S. II. 381. The same language 
was repeated, subsequently, in the case of a municipal 
corporation. Bissell v. City of Jefermnmlle^ 24 
How. U. S, R. 287. 



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388 COURT OF APPEALS OF VIRGINIA. 

1868. It was said in the argument by the counsel for the 
Tem. appellee, that the City itself had no authority under 

"t-t; the charter to execute the bond to DeVoss, because it 
& als. was not given for money lent to the city, or for anv 
City of other suflScient consideration. But the City had 
l^^ch- authority to execute bonds, in proper cases, without 

362] limit as to number or amount, and for reasons alr^dy 
mentioned, it cannot allege against DeVoss that this 
particular bond was not executed in a proper ca^. 
And it is at least doubtful, upon the authorities, 
whether a corporation can, in any case, allege against 
a third person, who has contracted with it, that its 
contractive as void because ultra vires ^ where the other 
party had no knowledge of the facts which made it so. 
Eastern Counties li. Co, v. Hawkes^ 35 Eng. L. & Eq. 
R. 8; Bateman v. Mayor ^ &c.^ 3 H. & ]Sor. 323; 
Bissell V, Mich. E, & N. Ind. R. B. Co., 22 X. Y. 
E. 258. If this had been the case of shares of stock 
issued in excess of the number limited by the charter, 
the case would have been different ; for, in such a case, 
as was said in the case of JV, T. dt 3^. //. 7?. B. Co. 
V. Schuyler i& al.^ 34: N. Y. R. 30, the validity of such 
shares is a legal impossibility. 

There is a class of cases in New Y^rk, relied on for 
the appellants, in which it has been settled, as the law 
of that State, applicable to all cases of agency, that 
where, upon comparing the act of the agent with the 
power given to him, it appears to be such an acta* 
the agent may lawfully do under the power, and the 
question whether it was in fact done in conformity 
with the power, or was an abuse of it, depends upoa 
the state of extrinsic facts within the knovN ledge of 
the agent, and not known to the other party, such 
other party has a right to presume that the state (A 
extrinsic facts is such as to authorize the act, and the 
principal will be bound. The doing by the agent of 



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COURT OF APPEALS OF VIRGINIA. 389 

an act of scch a kind, that it may be within the power, 1868. 
is regarded as a representation by him that, in point Term, 
cf fact, it is within it — a representation which, it is "T"";^ 
held, he has authority from the principal to make, re- Aals. 
sultinf; by implication from his employment, and all city of 
petsons dealing in good faith are held entitled to lely ^^^^ 
on the truth of this representation. North River [363 
Bank v. Aymar, 3 Hill R. 262; F, cfe M. Bank v. 
B, ikD, Bank, 16 K Y. R. 125; ExcJi. Bank\. 
Manieath^ 26 N. Y. E. 505; Gri8wold\. Haven^ 25 
X. Y. R. 596; X. Y, cfe N. H. R. R. Co. v. Schuy- 
ler <& aL, 34 N. Y. R. 30. This doctrine was not 
established without strong opposition, and was ob- 
je<;ted to as unsound in piinciple, and in conflict with 
authority. Mech. Bank v. .V. Y. db JST. 11. R. R. 
Co., 3 Kernan R. 599; Opinion of Comstock, J. 16 
X. Y. R. 125, and cases cited. See also Staff ff v. 
FUwtty 12 C. B. R. N. S. 373 (104 Eng. C. L, R.); 
Mmscf/ V. Beecher, 3 Cush. R. 511; Sears v. Win- 
gate, 3 Allen R. 103; Mann v. King, 6 Munf. R. 428; 
Stainhack v. Read d; Co., 11 Gratt. R. 281; Same v. 
Bank of Va., Ibid. 260. 

If this doctrine is sound, it has a conclusive applica- 
tion to the presemt case. But I have not found it 
necessary to invoke so broad a principle, and as there 
seems to be difficulty in reconciling the authorities, I 
have thought it best to decide this case upon its own 
special circumstances, and to leave the general ques- 
tion open until a case shall arise which renders its de- 
cision necessary. 

I am of opinion that the decree should be reversed 
and the bill dismissed. 

The other judges concurred in the opinion of Joyne8,3. 

Decree reversed. 



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390 COURT OF APPEALS OF VIRGINIA. 



1868. Hill c6 ah. v, Bowyee cfe ah. 

April 
Term. 
364] (Absent, Rives, J.*) 

April 21. 

1. A party aj»ain8t whom a decree has been rendered, without his 

appearance, may apply to the court to have the decree 
opened either by petition or by original bill. In either form 
it is an original proceeding, and may be commenced without 
previous leave of the court. 

2. If application is made to the court for leave to file a petition to 

open a decree, and the application is rejected, this is not a 
legal adjudication upon the case presented in the petition, as 
it would be in the case of the refusal to allow a bill of review 
to be filed, in which case the leave is necessary to entitle the 
plaintifi" to file it ; and the party may therefore file his 
original bill to have the decree opened. 

3. An original bill which seeks to correct errors in a decree by 

default apparent on its face, and also set it aside on the 
ground of mistake and surprise, having been filed without 
leave, cannot be treated as a bill of review. But a copy of 
the original record being filed with the bill, the court may 
consider and correct any errors apparent on the face of the 
decree, which may be corrected by the court, under the Code, 
ch. 181, 'i 5. 

4. Decrees by default in favor of husbands and wives give interest 

upon intere^Jt ; but the (X)uns(»l of the iwirties direc*t the clerk 
to correct tlie error by endorsement on any executions that 
might be issued upon them ; which is done. The counsel 
3g5"| had full authority to direct the correction, and to bind the 

wives as well as their husbands ; and thus to corret^t the 
error. 



•^He had been counsel in the original cause. 



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COURT OF APPEALS OF VIKGINIA. 391 

5. In the absence of objection in the court below, an appellate 1868. 

court would presume that notices to take the depositions were April 

duly given, the contrary not appearing ; and an objection to -^^"^^ 

depositions on this ground, where the decree was by default, Hill 

would not be available on a proceeding under ? 5, ch. 181 of & als. 

the Code. ^ v. 

Bowver 

6. The statute, Code, ch. 175, § 4, does not limit the class of cases ^ ^|g 

in which the court may direct that notice may be given by 
publication ; and it is no valid objection by a party upon 
whom process in the suit has been served, that he did not 
see or hear of the notice by publication of the taking an 
account by a commissioner, under the order of the court. 

7. In the absence of objection in the court below, that the Com- 

missioner had not regularly adjourned from time to time the 
taking the accounts, an appellate court would presume tha^ 
they were regular ; and the objection is not therefore available 
under ^ 5, ch. 181 of the Code. 

8. A decree by default is made against a guardian and his sureties ; 

and the process had not been served on one of the sureties. 
Upon a bill by the guardian and the other sureties, to open 
the decree, no objection to the decree on this ground can be 
raised by them. Nor will the objection of multifariousness 
alone be ground for reversing the decree. 

9. A defendant upon whom process has been served, who wholly 

neglects his defence, or contents himself with merely writing 
to a lawyer who practices in the court to defend him, without 
giving him any information about his defence, or enquiring 
whether he is attending to the case, is not entitled to relief 
against a decree by defeult, on the ground of surprise, how- 
ever grossly unjust the decree may be. 

In January, 1851, James M. Bowyer and Kuth J., 
his wife filed their bill in the Circuit Couit of Albe- 
marle county, in which they set out, that Achilles 
"Wood, the father of the female plaintiff, departed 
this life about the year 1833, having made a will, 
which was duly admitted to probate in the county 
court of Albemarle. That he left a widow and two 
infant daughters; the female plaintiff and Rhoda, who 
married George Hill. That he provided that the es- 
tate might be kept together, unless the widow married 
again; but in that event, or whenever the executor 



[366 



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392 COURT OF APPEALS OF VIRGINIA. 

1868. thought best, it was. to be divided, one-third to the 

Tera. widow for life, and th^ residue in equal proportions to 

T^r. his two children. 
Hill 

<feal8. That the executor declined to qualify, and Eyland 

Bowyer Rhodes qualified as administrator with the will an- 

^ ^^' nexed. That in 1834 he was removed, and the estate 

was committed for administration to Bazallet Brown. 

That in February, 1833, on motion of Rhodes, the 
administrator, an order was made appointing Com- 
missioners to divide the estate; and a division was 
made. That there was a tra*;t of land of six hundred 
and seventy-one acres, of which one hundred and 
eighty -five acres, including the dwelling house, were 
allotted to the wido\\, and one slave; the remainder 
of the land, with four slaves, was allotted to the two 
daughters. 

That about the year 1835 or 36, the widow removed 
to the count}'' of Greenbrier with her children, and 
about the same time married John Cooper. In 1839, 
William Carey was appoint»3d guardian of the children. 
The only estate coming to his hands as guardian being 
the land and slaves. In June, 18i0, Carey was re- 
moved from the guardianship, and Samuel S. Smith 
was at the same time appointed guardian in his stead, 
with Shannon Butt and Edwin R. Fanshaw as his se- 
curities. 

That at the January term, 1845, of Fayette county 
court, an order was made to the effect that Ruth Jane 
Wood and Rhoda B. Wood, with the approbation of 
the court, made choice of Hiram Hill as their guar- 
dian, svho together with Robert McCutchen, John 
Rhodes, Charles Bibb and James Y. Waite, his sure- 
367] ties, entered into a bond in the penalty of $4,000, 
conditioned according to law. That at the April term, 
1845, of the county court of Fayette, another entry 



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COURT OF APPEALS OF VIRGINIA. 393 

is made, to the effect that H. Hill presented in court, 1868. 
under oath, an account of the property and effects be- Term. 
longing to his said wards, which had come to his hands; :^~ 
bat though the office of the Fayette County court has Aals. 
been searched, yet no trace of such paper can be found, BowVer 
though at the time the said Hill was clerk of the court. ^ ^*^- 
That at the June term, 1850, of the court, upon the 
appUcation of his sureties, he was removed, as appeared 
by a copy of the order filed with the bill. 

That John Cooper dying, his wife, some years after- 
wards, married William Tracey, and they lived in the 
county of Fayette. 

The bill states, that all the slaves have disappeared ; 
that it is said Smith sold one of them ; that Tracey 
sold one or more of them; and that George Hill, after 
his marriage with Khoda B., gof into his possession 
one of the said slaves, and sold him. 

George Hill and Rhoda B, his wife, the two admin- 
istrators Rhodes and Brown, Smith and his sureties, 
Hiram Hill and his sureties, and Tracey and wife, 
were made defendants to the bill; and accounts were 
asked against the administrators and guardians. 

Process was served upon all the parties, except 
Waite, one of the sureties of Hiram Hill, and the sure- 
ties of Smith, and Tracey and wife. The case was, 
however, compromised between Smith and his wards; 
and there was an order of publication against Tracey 
and wife as absent defendants; but the record states 
that there was no evidence of the execution of this 
order. 

By an order made in vacation, on the 11th of Feb- 
ruary, 1853, which was modified by an order made in 
term in May, 1853, a commissioner was directed to 
take an account — First, of Rhodes' administration on 
the estate of Achilles Wood. Second, of Brown's ad- [368 
Vol. XVIII — 50 



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394 COURT OF APPEALS OF VIRGINIA. 

1868. ministration on same estate. Third, Smith's guardian- 
Term, s^ip account. Fourth, Hiram Hill's guardianship ac- 
„.., count; and, fifth, an account between Rhodes and 
& als. Brown and the children cf Wood, And the commis- 
Bowyer sioner was directed, instead of serving personal notice 
^ **s- on the parties of the time and place of executing the 
order, to have such notice published once a week for 
four successive weeks in some newspaper in the town 
of Charlottesville; and also to serve a notice on the 
counsel respectively engaged in the suit, of the time 
and place of taking said accounts, four weeks previous 
to the time cf commencing the same. 

The commissioner returned his report on the 14th 
of April, 1 854 ; but the only account which it is neces- 
sary to notice is that of Hiram Hill as guardian of the 
two children of Achilles Wood. 

The commissioner, in his report, states '*that he 
fixed on Wednesday, Ihe 10th of August, 1853, as the 
time for executing" the order, and notified the parties 
by publication for four wrecks successively in the Vir- 
ginia Advocate^ and by giving personal notice to all 
the counsel engaged in the cause who were known to 
be so engaged. That at the time appointed, some of 
the parties attended in person and by counsel, and the 
cause was taken up. It was then left open for the 
introduction of further testimony on both sides, and 
from time to time the depositions of various persons 
were taken, a number of these before the commis- 
sioner, and others in different parts of the State. 
Finally, the commissioner fixed upon the 10th of the 
then month March, 1854, as the time at which, if the 
parties were through with their testimony, h<^ would 
take up and complete his statements, and re[X)rt in 
the case. Of this the parties had informal notice 
through counsel several months beforehand." 



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COURT OF APPEALS OF VIRGINIA. 395 

In making out the account of Hiram Hill as guar- 1868. 

dian of his wards, it is commenced from the time Term, 

of his appointment in January, 1845, and is carried ~, 

on to June, 1850 — the time when it was stated in the & als. 

bill the guardianship terminated; which statement was Bowyer 

founded on an office copy of the order by which he was ^ fl?: 



removed, and which purported to be made at the June 
term, 1850. 

The commissioner stating in his report that Hill had 
never attended before him, had fled no answer, and 
had paid no attention to the case, charged him not 
only with the rent of the land and the hire of the 
slaves until they were disposed of, from 1845 to 1850, 
but also charged him with the price or value of the 
four slaves. Of these the commissioner reports, that 
the guardian permitted Tracey to sell one in 1846; 
thai/ George Hill, who married Rhoda Wood, sold 
another for $487.50; that another was sold in 1849 by 
Ruth, the wife of the plaintiff, who was said then to 
be a minor, and that Tracey got the money; and as 
the commissioner could hear nothing of the fourth, he 
charged Hill with her estimated cash value on the 1st 
of January, 1851, at $50u. Xo credits for disburse- 
ments of any kind were allowed; but George Hill and 
wife were charged with the price of the negro he sold, 
and the hire of him for the year 1847. The account 
thus made out made Hiram Hill debtor to the female 
plaintiff on the 1st of January, 1S51, $1,257.57; and 
on this sum the commissioner calculated interest up to 
the 22d of May, 1804, §255.70; making principal and 
interest, 81,513.27 ; and he was made debtor to George 
Hill and wife at the same date in §724. 92, upon which 
interest was also calculated to May 22, 1S54, §147.40, 
making principal and interest 8''^T2.8i). But if Bow- 
yer and wife should get from George Hill the sum of 



[369 



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390 COURT OF APPEALS OF VIRGINIA. 

18(58. $337.30, being one-half principal and interest to May, 

Term, l^^i, of the price of the slave sold by George Hill, 

^T^j then Iliram Ilill would be indebted to George Hill and 

& als. wife $1,209.65; and to Bowyer and wife but $1,175.97. 

Bowyer George Hill excepted to the commissioner's report 

4^ ^^«- in relation to the charge against him for half the 

price of the slave he sold. 

The cause came on to be heard on the 26th of May, 
18()4, when the court overruled the exceptions of 
George Hill to the commissioner's report, and con- 
firmed the same in all respects, except as to the trans- 
actions of Ryland Rhodes; and after decreeing as to 
other parties, decreed that the defendants Hiram Hill, 
and his sureties Robert McCutchen, John Rodes, 
Charles Bibb and James Y. Waite, should pav to the 
plaintiffs the sum of $1,513.27, with interest on 
$1,257.57, a part thereof, from the 1st day of Jaru- 
ary, 1851, till paid; subject to certain credits as of the 
22d May, 1S54, for one moiety of a sum de<;reed 
against Brown, and for a sum decreed against Sand- 
ridge. And the court decreed against the same parties 
in favor of George Hill and wife for the sum of 
$1,209.62, with interest on $968.67, a part thereof, 
from the 1st day of January, 1851, till paid; with an 
ulterior provision which it is not necessary to state. 

Executions having been issued upon these decrees 
against Iliram Hill and his sureties, he presented a 
petition to the judge, in which he complains of great 
injustice being done him by the decree. He says that 
he had been guardian of these parties for a short time, 
and no profits had ever come into his hands; and he 
exhibited copies from the records of the County Court 
of Fayette, showing that he had been removed from 
his guardianship in June, 1845, instead of 1850, as 
stated in the bill, and in the copy filed with it. He 



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OOUKT OF APPEALS OF VIRGINIA. 397 

said that he had employed counsel practicing in the isas. 

court to defend the suit, and knowing that nothing xerai. 

was due, he had given himself no uneasiness about the tzt: 

matter. That the counsel he had written to mistook & als. 

the party for whom he had been retained, and had sowyer 

prosecuted the claim for George Hill, and thus the pe- *^ f}?. 



titioner had been left wholly undefended. And he 
prayed that the case might be re-opened, and that he 
might have relief. 

There is no notice of any action of the court on this 
petition; though it seems that the motion to file it 
was refused. 

In April, 1855, Hiram Hill and thiee of his sureties 
as guardian, viz. , John Rodes, Charles Bibb and Rob- 
ert McCatchen, filed their bill in the Circuit Court of 
Aloemarle county, against James F. Bcwyer and 
Ruth J. his wife, and George Hill and Rhoda B. his 
wife, asking for an injunction to the decrees which 
had been rendered against Hiram Hill and his sure- 
ties; and that the decrees might be re-opened, recon- 
sidered and reversed; and for general lelief. They 
made the record m that case an exhibit with their 
bill; and set out various irregularities and errors in 
the proceedings and decrees. First — That the first 
subpoena, which issued November 15th, 1850, was 
against George Hill and wife alone; but that others 
were issued in January, 1851, against numerovs other 
defendants, without noticing G. Hill and wife; and 
the bill was filed including Hill and wife, and these 
other defendants. Second — That the bill was multi- 
farious, against different parties, in different charac- 
ters, and for wholly independent transactions. 
T»iird — That tlough an order of publication was made 
against Tracey and wife as absent defendants, there 
was no proof of the fact that they lived out of the 



[371 



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398 OOUKT OF APPEALS OF VIRGINIA. 

1868. iState, and the order vfsis not executed; and no pro- 

A t ril 

Term, ^^'^s had been served on Butt and Farnsworth, the 
^""j sureties of Smith as guardian, or upon Waite, one of 

&als. the sureties of Hiram Hill; and yet that decrees had 

Bowyer ^^^^ rendered against Waite to a large amount. 

& ais. Fourth^ — That notice by publication of the taking the 
accounts by the commissioner was improper in the 
case; and that the commissioner had not adjourned 
372] his proceedings in taking the accounts regularly. 
Fifth — That depositions had been taken both before 
the commissioner and in the country without noti<^e 
to Iliram Hill or any of his sureties. Sixth — That 
the decrees are for interest on the principal sums from 
the 1st of January, 1851, whilst the commissioner 
had calculated the interest down to May, 22d, 1854, 
and the decree included this interest with the princi- 
pal suras, and was for the whole amount; thus giving 
interest for this period twice. 

The bill further alleged, that Hiram Hill had been 
removed from his guardianship in June, 1845; and 
that having been guardian but a few months, and the 
slaves having been hired out for the year, nothing had 
been received by him. That when the suupoenas were 
served upon Hiiam Hill and his sureties, they know- 
ing nothing of the grounds of his defence, committed 
it to him; that he employed able and experienced 
counsel to defend his interest, Mr. E. R. Watson, who 
practiced in the court; that he felt satisfied he 
would be fully defended; and knowing himself not to 
be justly liable for any amount, gave himself no un- 
easiness about the matter. That when the executions 
came out and were placed in the hands of the sheriff 
of Fayette county, he immediately wrote to Mr. Wat- 
son, his counsel in the ciise, inquiring into the matter, 
and received a letter from him informing him that, by 



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COURT OF APPEALS OF VIRGINIA. 399 

mistake, he had prosecuted the claim of one of the de- 1868. 
fendants in the suit of the same name, instead of de- Term, 
fending Iliram Hill; so that the latter was wholly — "^ — 
undefended in the suit. The injunction was a.warded ; & als. 
but was never perfected by executing the injunction Bowyer 
bond with security. ^ ^*^- 

The defendants, George Hill and Ehoda his wife, 
were proceeded against as absent defendants. Bow- 
yer and wife demurred to the bill, and also answered. 
They insisted, that there was no error of law or fact 
apparent upon the record which could entitle the [373 
plaintiffs to review the decree. And they insisted, 
that the excuse given for not attending to the defence 
of the case by Iliram Hill and his sureties was not 
suflBcient to entitle them to relief on the ground of 
surprise; on the contrary, it evinced the grossest neg- 
ligence on the part of these parties. And they in- 
sisted, that if there had been any error, it was not 
occasicned by any act of theirs; they having filed 
with their bill the copies from the clerk's office of 
Fayette County Court as they received them, without 
any knowledge of a mistake in the dates. 

It was proved by the clerk of the county court of 
Fayette, and copies of the orders of the court, that 
Iliram Hill was in January, 1845, chosen by Rhoda 
and Ruth Woods, with the approbation of the court, 
as their guardian, and gave bond, with the sureties 
before namea. as guardian; and at the June term of 
the court for the same year he was removed. Of the 
five slaves belonging to the infants, which went into 
the hands of Smith, the previous guardian, one was 
sold by the order of the county court of Greenbrier, 
where Smith was appointed, for the payment of debts 
of the wards. Of the remainder, one seems to have 
been sold by Tracey in 1846; one was sold by George 



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400 COURT OF APPEALS OF VIRGINIA. 

1868. Hill in 1848; one was sold by Ruth Wood whilst, it 
Term. ^^ s^^^? ^he was an infant, in November, 1849, 

— ~ — whilst she was living with Tracey and her mother, at 
<fcal8. Point Pleasant, in Virginia; the other woman died, 

Bowyer ^^^ ^^^ child, of about a year old, was sold in August, 
&ais. 1845, to Joshua Mooney. The bill of sale is signed 
by Rhoda and Ruth Woods, but they were then 
minors, living with Tracey and wife. I" August, 
1845, Tracey, acting as agent for the children of 
Achilles Wood, rented their land to James R. Wat- 
son, for three years, commencing on the 1st of 
January, 1846, for one hundred and ten dollars, of 
which ten dollars were to be discharged by putting up 

374] rails on the place. Tracey assigned this bond to G. 
T. Antrim ; and Watson enjoined the payment of the 
money on the ground that it was the property of 
Achilles Wood's children. This cause was pending in 
the court when the case of Bowyer and \\ife against 
Hill and other was decided; and the commissioner 
suggested they should be heard together ; which, how- 
ever, was not done. 

It was, therefore, abundantly evident that the Com- 
missioner's report and the decrees based upon it, did 
great injustice to Hiram Hill and his sureties, and 
subjected them for a large amount, for which they 
could . not have been liable if the case had been 
properly defended. And the question, therefore, 
was, whether the excuse for not attending to the case 
was sufficient. The only proof that Hiram Hill em- 
ployed counsel tu defend him, or that he ever gave 
any attention to the case himself, is a letter of E. R. 
Watscn, Esq., dated Charlottesville, September 0th, 
1854, filed by Hill. In it Mr. Watson says: ^*I have 
a letter from you dated June 20th, 1854, in which 
you say that you had previously written to me to 



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COURT OF APPEALS OF VIRGINIA. 401 

attend to your interests in the chancery suit brought 1868. 
by Bowyer and wife, and that I replied I would do Te?m. 
so. In the progress of the case, which was frequently — — — 
referred to between Mr. Kives and myself, he took & als. 
charge of its management, and I did not attend to it Bowyer 
at all; but devoted myself to other cases, to which he * ^^' 
paid no attention — I being perfectly satisfied that he 
was representing the Mr. Hill who had written to 
me. It turns out that Mr, George Hill had retained 
us in the case, in my absence, or by letter which I 
never saw, and Mr. Rives was really representing him, 
whose interests in the case were, I believe, adverse to 
youps. We could not, in fact, have acted as your 
counsel; but my misapprehension doubtless prevented 
roe from informing you of our position, and thereby 
giving you an opportunity to employ other counsel." 

The cause came on to be heard in May, 1859, when [375 
the court dissolved the injunction and dismissed the 
bill, with costs; and thereupon the plaintiffs applied 
to this court for an appeal, which was allowed. 

There is a certificate of the clerk of the Circuit 
Court appended to the record, that the counsel of 
Bowyer and wife and G. Hill and wife had directed 
hun, as clerk, to endorse; and, under such instruc- 
tions, he had endorsed on the execution book of bis 
ofiSce; and that he had also been directed, as clerk, 
to endorse on any execution issued on the decree of 
May 22, 1854, in favor of Bowyer and wife and Hill 
and wife, against Hiram Hill and others, the follow- 
ing corrections of errors in said decree: so much of 
said decree as gives interest upon interest from 
January 1st, 1851, to May 22d, 1854. 

The cause was argued in writing in the Circuit 
Court by John Thompson, Jr., for the plaintiffs, and 
V. W. Southall for the defendants; and these notes 

Vol. XVIII — 51 



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I 

I 402 COURT OF APPEALS OF VIRGINIA. 

I 1S68. were printed with the record, and were before the 

Term. J^^g^S of this court. 



"Hill 

& als. JoYNEs, J. The petition presented by Hiram Hill 
Bowyer ^^ ^^® ^^'^ term, 1854, is spoken of in the bill in this 
&ala. case, and in the printed arguments, as a bill of re- 
view. But it was not a bill of review, eitheV in form 
or in substance. It did not allege either error of law 
apparent on the record, or newly discovered evidence, 
which are alone the proper grounds of a bill of re- 
view. It was a petition to open the original decree, 
which had been rendered without an appearance by 
the petitioner, and alleged accident and surprise as 
the grounds of it. Such a proceeding may be either 
by petition, as in Kemp v. Squire^ 1 Ves. Sr. K. 205, 
and Cunyngham v. Cunyngham^ Ambler E. 89; 
which seems to be the usual and proper practice ia 
England (2 Daniel Ch. Pr. 684-5, and cases cited), or 
by original bill, as in Erwin v. Vint^ 6 Munf. 267, 
376] and Callaway v. Alexander ^ 8 Leigh 114. In either 
form it is an original proceeding, and may be com- 
menced without previous leave of the coort. Itii 
alleged in the bill that this petition w^as presented Ui 
the court, and that the court overruled the application 
for leave to file it, though the order of the court ii 
not in the record. The refusal of the court to allow 
this petition to be filed was not a legal adjudicatia 
upon the case presented by it, as in the case of refosd. 
to allow a bill of review to be filed. In the case of ti 
bill of review, the leave of the court is necessary ttt 
entitle the plaintiff to file it, so that the refusal l» 
give the leave is an adjudication of a question prop^^ 
before the court for its dtcision. But in this ca% 
the court, in refusing the leave, did not decide a que* 
tion properly before it, and its decision was, theref(»i 



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COURT OF APPEALS OF VIRGINIA. 403 

simply nugatory. 11 ill might have filed his bill, in 1868. 
the usual way, notwithstanding that refusal. The Term, 
rejection of that petition, therefore, was no bar to TTjj 
the present bill, which seeks relief, in part, on the &al8. 
same grounds relied on in that petition. Bowver 

The bill in this case is called on its face an original ^ ^*^- 
bill. It alleges, among other things, various objec- 
tions to the decree arising on the face of the proceed- 
ings. It has been contended in argument, that it may 
be treated as a bill of revie\^ , for the purpose of 
enabling the court to pass upon such of its averments 
as contain proper matter for such a bill. I do not 
think we can regard it as a bill of review, in the 
proper sense, because it ivas filed without the previous 
leave of the court, which, according to our practice, 
is necessary in all cases of bills of review. 2 Rod. 
Pr. 418. But this is a matter of no practical import- 
ance. The decree complained of was rendered against 
the appellants upon the bill taken for confessed, and 
without any subsequent appearance by them. And 
the Code, ch. 181, sect. 5, provides that the court in 
which there is a judgment by default, or a decree on 
a bill taken for confessed, or the judge of such court [377 
in vacation, may, on motion, reverse such judgment 
or decree for any error for w hich an appellate court 
might reverse it, but for the next following section, 
and give such judgment or decree as ought to be 
given. The next section provides that no appeal, 
writ cf error, or supersedeas shall be allowed by an 
appellate court or judge for any matter for which a 
judgment or decree may be reversed or amended en 
motion by the court which rendered it cr the judge 
thereof, until such motion is made and overruled, in 
whole or in part. 

It was competent, therefore, for the appellants to 



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404 COURT OF APPEALS OF VIRGINIA. 

1868. submit a motion to the circuit court for a reversal and 
Term. Correction of the decree complained of u pon any ground 

— 1-"^^ — on which it might have been reversed and corrected by 
& als. an appellate court, if the statute had allowed an ap- 
Bowyer P^^ without such previous application to the circuit 
&al8. court. See Dav/^ v, CommoniceaUh^ 10 Gratt. 134. 
This statute, it will be observed, contemplates a 
cheap, convenient and expeditious mode of proceed- 
ing, by motion and without pleadings. It allows 
notice of the motion, which is to be only "reasonable 
notice,'' to be given to the opposite party, or to his 
agent, or attorney, in tact or at law. It does not 
contemplate the more formal, expensive, and dilatory 
proceedings by bill and regular process. And it. con- 
templates, that if the motion is overruled, wholly or 
in part, the appeal shall afterwards be taken from the 
original decree, as it stood originally, if the motion is 
whoUy overruled, or as amended and corrected, if the 
motion is sustained in part. 

The proceedings in the present case, therefore, has 
not been in strict conformity to this statute. The 
proceeding is by bill and not by motion, and the ap- 
peal is from the decree on this bill, and not from tne 
original decree. But as the bill embraced other 
grounds which gave the court jurisdiction, no incon- 

378] venience or additional expense resulted frcm embrac- 
ing in it likewise such allegations of error as might 
have been made the ground of a motion under the 
statute. And as the record in the original case has 
been made a part of the bill in this case, so that all 
the facts are fully before the court, I think we may 
properly review the action of the court upon this ap- 
peal in reference to the alleged errors in the original 
decree, as well as in reference to the other grounds 
upon which the bill seeks relief. If we find such 



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COURT OF APPEALS OF VIRGINIA. 405 

errors in the original decree, a reversal and correction 1868. 

of the decree now appealed from, in those particulars, Term. 

mil have the same effect as a reversal and correction ~~ 

Hill 

of the original deciee. I will proceed, therefore, to Aals. 
consider whether there has been shown to be any Bowyer 
error in the original decree for which the appellants ^ *^* 
would have been entitled to have it reversed or cor- 
rected by an appellate court, if the statute had allowed 
an appeal in the first instance, or if it was now before 
us on a direct appeal from it. The allegations of error 
are not anywhere precisely collated, but I shall notice 
such as seem to be mainly relied upon, as i collect them 
from the bill, the petition of appeal and the arguments 
of counsel. 

1. It is alleged that the original decree is erroneous 
in giving interest to Bowyer and wife on $1,257.37 
from January 1, 1851, instead of from May 22, 1854, 
and in giving interest to Hill and wife on $^^8.67 
from January 1, 1851, to May 22, 1854, the commis- 
sioner in his report having already allowed interest to 
the latter date on both these sums. 

These are palpable errors. It appears by a paper 
which has been annexed to the record by the clerk, 
and is stated by him to have been so annexed by con- " 
sent of counsel, that subsequently to the date of the 
decree now appealed from, the counsel for Bowyer 
and wife and the counsel for Hill and wife directed 
the clerk to correct these errors by endorsement on 
any executions that might be issued on -the original [379 
decree. The petition of appeal admits that these cor- 
rections have been thus made by the counsel, but it is 
suggested that they are not sufficient in law to bar 
ihe/emesj in case they should survive their husbands 
and become thereby entitled to demand the money 
decreed. This objection cannot be sustained. The 



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406 COUKT OF APPEALS OF VIRGINIA. 

1868. mistakes were obvious, and their correction was a 
Totii. niatter of course. The counsel for the parties in whose 
~, favor the decree was made had full authority to bind 
&al8. their clients by making the corrections. The fejn^s 
Bowyer ^^ bound by this act of the counsel as well as their 
&ai8. husbands. It being thus apparent to us, by the ad- 
mission of counsel, that ihese errors have been 
properly corrected, we would not give costs tc the 
appellants if we were to correct them by an amend- 
ment of the decree on the ground that the correction 
of them by the counsel is not technically before us. 
This matter may, therefore, be left to stand as it is. 
2. It is alleged as eiror that, while the appellant 
Ilill is charged with the rents for 1846, 1847, and 
1848, he is not credited for the money collected by 
Bowyer and George P. Ilill from Watson, who occu- 
pied the land during those years under a contract with 
Tracey, as shown by the record of the case of Wat^fn 
V. Tracey. 

The commissioner in his report, suggested that the 
case of Waimn v. Trarey should \>e heard along with 
Bowyer c6 mlfe v. TliU it als,^ and that whatever 
sum might be realized in WaUon v. Tracey for these 
rents should be a credit to Hill on the balances due by 
him as guardian. But the cases were not heard to- 
gether. The money collected from AVatson in IT a/j*on 
V. Trarey was not received until after the decree in 
Bowyer tfc wife v. Hill cfe als , and there was nothing 
in the latter -case to show what was likely to be real- 
ized in the former. The court was not bound, in 
consequence of the sugestion of the commissioner, to 
380] postpone the decree in Bowyer & vx v. HUl t{- ah, 
until this could be ascertained, or to make provision 
in the decree for a credit that was wholly contingent. 
The appellants are entitled to a credit on the decree 



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OOUKT OF APPEALS OF VrRGINIA. 407 

in favor of Bowyer and wife for the sum of ?51.96, 1868. 

as of Jane 3, 1854, and to a credit on the decree in Term. 

favor of Hill and wife of $68.05, as of the same date. — zrz — 

' Hill 

But the Circuit Court can give them the benefit of & als. 
these credits by directing them to be endorsed on the Bowyer 
executions, on a motion for that purpose. ^ *'^ 

3. [t is alleged as error that the case of Bower dk 
ux. V. Hill c& als. wag heard upon depositions, of the 
taking of which the appellants had no notice. This 
objection could not be. taken, for the first time, in the 
appellate court. Dickenson v. Davis db al.^ 2 Leigh 
401; Code, ch. 182, sect. 6. In the absence of ob- 
jection in the court below, an appellate court would 
presume that notices to take the depositions were duly 
given, the contrary not appearing. This objection is, 
therefore, not avoidable on a proceeding under sect. 
5, ch. 181. 

4. It is alleged as error that the appellants had no 
notice of the taking of the accounts by the Commis- 
sioner, and that the Commissioner did not make regu- 
lar adjournment of his proceedings, in conformity 
with sect. 7, ch. 175 of the Code. 

The court directed the Commissioner to give notice 
of the time and place of taking the accounts by pub- 
hcation in a newspaper, as authorized by sect. 5, ch. 
175, of the Code. Such publication, the statute de- 
clares, *^ shall be equivalent to personal service of such 
notice on the parties." The statute does not limit 
the class of cases in which the court may direct notice 
to be given by publication, and we would virtually 
repeal the statute if we should allow a party to whom 
notice had been duly given by such publication, to 
say that he did not see it, or hear of it, and so did 
not have notice in point of fact. The party being [381 
duly served with process, and thus appiised of the in- 



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408 COURT OF APPEALS OF VIBGINIA. 

1868. stitution of the suit, I apprehend there can te no 
Term, doubt of the right of the legislature to provide, that 
jTT^j notice of subsequent proceedings in it may, if so di- 
& als. rected by the court, be given by publication. 
Bowyer As to the adjournments, it does not appear aflSnna- 
& als. tively that they were not regular. In the absence of 
objection on that ground in the court below, an appel- 
late court would presume that they were regular. 
This objection is, therefore, not available, in a pro- 
ceeding under sect. 5, ch. 181. . 

5. It is alleged as error that Waite, one of Hill's 
securities as guardian, was not served with process. 

The decree was rendered against Waite, and its va- 
lidity cannot be questioned in this collateral proceed- 
ing by other parties. 

6. It is further alleged as error that the bill was 
multifarious, because it united in one suit parties and 
subjects which had no necessary or proper connection 
with each other. 

If this objection had been raised in the case while 
it was in the Circuit Court, it must have been sus- 
tained. But not having been raised there, an appel- 
late court would not reverse the decree on that ground 
alone. 

The bill further claims that the decree in the case 
of Bowyer cfe wife v. JTUl & als, should be opened, 
and the appellants let in to make their defence, on 
the ground that they were prevented from doing so 
by accident and surprise. These grounds, if sustained, 
are suflBcient to entitle the appellants to relief, unless 
they are precluded by laches, according to the aeci- 
sions of this court in Erwin v. Vint and Callaway v. 
Alexander^ before cited. Two facts are alleged to 
sustain the averment of accident and surprise : 

1. The appellant, Hiram Hill, for whom the other 



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COURT OF APPEALS OF VIRGINIA. 409 

V 

appellants are sureties in his bond as guardian, quali- 1868. 
fied as guardian at January term, 1845, of the county xeim. 
court of Fayette, and was removed from the guardi- — ~ — 
anship, on the motion of his sureties, at June term of & als. 
the same year. In the copy of the order of removal Bowyer 
furnished by the clerk of Fayette to the counsel for ^ ^}^- 
the plaintiffs in Bowyer u& ux. v. Hill cfc aU.^ and 
which was filed as an exhibit in that case, a mistake 
was made in the year, 1850 being put in the place of 
1845, so that Hill was thus made to appear to have 
been guardian for five years and five months, when, 
in point of fact, he was guardian for only five months. 
The Commissioner accordingly made up an account 
against him for five years after he had ceased to be 
guardian, charging him with rents and hires which he 
never received, and with the proceeds of the sale of 
slaves which he never sold. 

2. It is alleged that the appellant. Hill, who, as 
\^ ell as the other appellants, resided in Fayette 
county, wrote, soon after the Institution of the suit, 
to Mr. Watson (now Judge Watson), of Albemarle 
county, where the suit was, to engage his services as 
counsel in the case; that the other appellants relied 
on Hill to attend to the defence; that Hill supposed 
that Mr. Watson was giving proper attention tc the 
case in his behalf; and knowing that he had never 
received anything, and could not justly be made lia- 
ble for anything, gave himself no uneasiness about the 
matter. In consequence uf a misapprehension, how- 
ever, Mr. Watson did not attend to the case as coun- 
sel for the appellant Hill, while his partner attended 
to it as counsel for George P. Hill, whose interest 
was adverse to that of the appellants, ana whom 
Mi. Watson supposed to be the same Hill who had 

Vol. XVIII — 52 



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410 COURT OF APPEALS OF VIRGINIA. 

1868. written to him. Ttie consequence was, that the ap- 
T^. pellants were wholly undefended by counsel. 

— ~. — There is no proof of these allegations. The letter 

& ale. to Mr. Watson is not produced. His deposition has 

Bowyer ^^^ been taken. The onlj^ thing relied on to prove 

^5^T ^^^^ ^"^^ ^ letter was written, is a letter from Mr. 
Watson, written after the decree had been rendered 
in Bowyer cfe ux. v. Hill cfe als. But even if we could 
accept that as evidence that such a letter was written 
to Mr. AVatson and received, and that he failed to de- 
fend the appellants in consequence of the misappre- 
hension alleged in the bill, there is no evidence of any 
sort that Hill's letter was replied to, or that he had 
any suiRcient reason to believe that Mr. Watson had 
received it, and would serve him as counsel. 

The whole of the allegations on this head should, 
therefore, be laid out of the case, as being entirely 
unsupported by evidence. But if we take them as all 
true, it would be difficult to imagine a case of grosser 
laches than this. The appellants were all duly served 
with process. Hill contented himself with writing a 
lettei to a lawyer to engage his services, while the 
other appellants did nothing. Hill had no further 
communication with the lawyer. If' he ever heard 
from him ^at all, which he does not allege, he gave 
him no information as to the defence; he paid no fee; 
made no enquiry as to the progress of the case. How 
could he suppose that counsel, if willing to work for 
nothing, could defend him without knowing anything 
of the facts ? When parties are admonished of the 
institution of a suit, by the service of process, it is 
their duty to take care of their interests; if they neg- 
lect this duty, it is at their peril. The allegation 
that Hill gave himelf no uneasiness, because he knew 
that he could not justly be made liable for anything, 



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COURT OF APPEALS OF VIRGINIA. 411 

if proved, would not alter the case. He knew, by 1868. 
the service of the process upon himself and his securi- Term, 
ties, that a claim was made against him; and he must jpjj 
have known that some ground, just or unjust, true or & als. 
false, would be shown to sustain it. IIow was coun- BowVer 
sel or the court to know the facts, so as to protect * ^^• 
him against an unjust claim, if he would furnish no 
evidence and no information ? The truth is, however, [384 
that he was not justified by the facts in feeling the 
indifference he professes to have felt. He qualified 
as guardian at January term, 1845. It does not ap- 
pear who hired out the slaves and rented out the land 
for that year. If the foimei* guardian, he ought to 
have turned over the bonds to Hill, and it must be 
presumed that he did so. What did he do with these 
bonds, when he ceased to be guardian ? What did he 
do with the slaves? Though they were hired out, 
they were legally in his charge and possession. What 
did be do with the property of his wards, of which he 
returned an inventory to the court at April term ? 
It is a remarkable fact in this case, that Hill, who was 
clerk of the court, returned an inventory, as required 
by law, of the property of his wards that had come 
to his hands, which the court directed to be recorded, 
but that it cannot be found either on record or among 
the files of the oflice. 

Hill undoubtedly had a right to suppose that the 
clerk would make true copies from the records, and 
that the papers would, therefore, show that he was 
guardian for only five months. If he had sufleted in- 
jury from this negligence of the clerk in giving a 
wrong date to the order of removal, without being 
guilty cf gross negligence himself, he wc uld have had 
a strong case for relief. But if he had given the least 
attention to his own interests; if he had obtained a 



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412 COURT OF APPEALS OP VIRGINIA. 

1868. copy of the bill, or if he had furnished counsel wiih 

Term. ^^® merest outline of his defence, he would have 
— -zr, — suflfered no injury from this blunder of the clerk. 

& als. The cases in which this court has held parties re- 
Bowyer sponsible for the consequences of laches in makmg 

* *'^- their defence to legal proceedings against them, are 
too numerous and familiar to require citation. They 
are generally cases in which relief has been sought in 
equity against judgments at law. But in Callaway 
V. Alexander^ already cited, the same principle was 
held to be applicable to the case of a bill to open a de- 
385] cree by default on the ground of accident and surprise. 
That case bears a strong resemblance to this in the 
facts, and is a conclusive authority for holding the ap- 
pellants bound by their laches. 

The appellants have certainly been decreed to pay 
more than they were justly liable for. But we can- 
not relieve them on this ground from the consequences 
of their gross and inexcusable laches. To do so. would 
be to hold out a direct encouragement to such conduct. 
Diligence and vigilance would cease to be the rule, 
and we should destroy all certainty in the results of 
judicial proceedings. There have been many cases of 
great hardship in which this court has refused to give 
relief ^n the ground of laches. There was never a 
hardei case, for instance, than Meem v. Rucker^ 10 
Gratt. 506. But as the court said in that case, ^'the 
inevitable answer to the argument [of hardship] is, 
that the hardship complained of is not to be traced to 
the administration of justice, but to the party's own 
folly and gross laches." 

The bill makes no charge of fraud against Bowyer 
and v/ife and Hill and wife, or any of them. It does 
not allege that they knew that the copy of the order 
of removal bore a wrong date, oi that they knew how 



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CX>URT OF APPEALS OF VIRGINIA. 413 

long Hill continued to be guardian ; and there is no 1868. 
evidence that they dia so. Term. 

Hill and wife, who were non-residents, did not an- ~~^ 
swer the bill, but Bowyer and wife say in their an- & ala. 
swer, that they did not know that the order had been Bowyer 
incorrectly copied, and Mrs. Bowyer, answering in ^^^*^' 
her separate behalf, says she does not know when Hill 
ceased to be her guardian. 

It is contended, however, that if the parties were 
not guilty of fraud in obtaining the decree, it was a 
fraud in them to insist upon it after its injustice had 
been established. I do not think that we can reverse 
the decree on this ground. No authority has been 
cited to sustain it. It would have been applicable in 
Memi V. Rucker^ and in every other case of hardship, [386 
in which this court has refused to give relief en the 
ground of laches. 

I am of opinion to aflBrra the decree. 

MoxcuKE, P. concurred in the opinion of Joynes^ J. 
Decree affirmed. 



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414 COURT OF APPEALS OF VIRGINIA. 



Bicfimonft. 

1868. Gordon c& ah, v. Cannon cf* ah. 

April 
Term. 
387] April 23. 

1. A debtor in failing circumstances may convey his whole property 

for payment of his debts, giving preferences among liia 
creditors, and requiring a release from such as accept it. 

2. To render such a deed valid, the whole of the debtor's property 

must be conveyed by it ; but this need not appear on the face 
of the deed. 

3. A partnership in failing circumstances has the same power ; and 

if two of three partners convey all the effects of the firm and 
their individual property, and the third has none, they may 
require a release both of the firm and of all the members, by 
the credidtors who accept the deed. 

4. A deed conveys a stock of goods of the grantors, and refere to a 

schedule of the goods, which when made out is to be consid- 
ered as annexed to the deed, and to be taken as a part of it 
Though the schedule is not annexed before the- recording of 
the dei»d, the deed is valid without it. 

5. A deed of trust for payment of debts authorizes the trustee to 

appoint agents, and provides that he shall only be liable for 
the money that comes into his hands, and shall not be liable 
for the omissions or defaults of the agents. This does not 
discharge the trustee from the obligation to select fit agents, 
and to hold them to a strict and prompt responsibility for 
their acts. And this is the extent of his liability without 
such a provision in the deed. 

6. The fact that in such a deed the trustee is a creditor secured in 

it, dm^s not affect the validity of the deed, but only the 
power of the trustee to act. If the debtor does not object to 
his acting, it is no reason why another creditor should object ; 
if that is the only objection to him. 

7. When the debtor in such a deed requires a release, the deed 
should give to the creditors all the information in the power 
of the debtor, as to the nature and value of the property con- 



388] 



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COURT OF APPEALS OF VIKGINIA. 415 

veyed, and the amount of the debts intended to be provided 1868. 
for, and time to obtain information not given in the deed ; April 
and to determine whether they will accept or reject the offer "^* 

made to them. In this case sixty days were allowed, and Gordon 
held sufficient. & als. 

R A & Co. stopped business, and R & R, two of the members ^ ^* 
of that firm, and P, formed the firm of R R & Co. They ^ j^ig 
failed, and conveyed all the assets of both firms, and the 
individual property of R in trust to pay indiscriminately a 
debt of R and the debts of the two firms ; and they required 
a release. The deed is valid ; but it will be re-formed, so as 
to apply the prop>ei*ty of each to pay first the debts of that 
person or firm from whom or which the property was derived. 



By deed bearing date the 30th of November, 1866, 
William H. Rogers, James E. Riddick and J. Pendle- 
ton Rogers, merchants and partners trading under the 
name and style of Rogers, Riddick & Co., in the city 
cf Richmond, and Mary Jane Rogers, wife of William 
H. Rogers, conveyed to Edward Y. Cannor two tracts 
of land in the State of Texas, containing four thou- 
sand two hundred and fourteen acres, the property of 
William H. Rogers, all their stock of goods, ''an in- 
ventory of which stock will, as soon as practicable, be 
taken and be annexed to this deed as a schedule, to be 
marked schedule A, and which schedule, when so an- 
nexed, is to be treated as a part of this deed; also all 
debts of every description due to the Grm ; also all the 
assets of eveiy kind of the late mercantile firm trading 
in Richmond under the style of Rogers, Adams & Co., 
which firm was composed of the said William H. 
Rogers, Samuel R. Adams and the said James E. Rid- [389 
dick; and all the interest of William II. Rogers in 
said last mentioned firm; and all other assets and 
effects of the firm of Rogers, Riddick & Co., wherever 
they may be. Upon trust forthwith to take posses- 
sion of the said stock of goods, and to sell the same 
either at public or private sale, and upon such terms 



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416 COURT OF APPEALS OF VIRGINIA. 

1868. of cash or credit, and as a whole or in part, as he may 
Term, deem most judicious and best calculated to realize the 

~7r'\ best prices for said goods; and for this purpose the 
<&al8. trustee was authorized to employ such agents, auc- 
Cannon tioneers or salesmen as he might deem necessary, and 
<^^^^- to pay them a reasonable compensation for their ser- 
vices out of the trust fund. That the said trustee 
should proceed, as soon as practicable, to collect all 
debts due Kogers, Kiddick & Co., or which form a 
part of the assets of Rogers, Adams & Co. ; and for 
this purpose to make such compromise adjustment of 
doubtful or disputed debts as might seem judicious 
under the circumstances; and also to sell and convey 
the real estate in Texas, in such parcels and on such 
terms as to cash or credit as might best realize the 
highest price for said real estate. And after paying 
all the expenses of executing the trust, to apply the 
trust fund to pay ir full, if the fund was sufficient, 
and if not, pro raia^ the debts mentioned in schedule 
B, annexed to the deed as preferred debts of the first 
class. Second, if a surplus should remain after pay- 
ing the debts in schedule B, the trustee should dis- 
tribute such surplus, j^r^? rata^ among all of such of the 
creditors of the firm of Rogers, Riddick & Co. and of 
the late firm of Rogers, Adams & Co. embraced and 
enumerated in the schedule marked (J, and annexed 
to the deed, as should within sixty days after the deed 
should be admitted to record in the clerk's office of 
the Hustings Court of Richmond, either in person or 
by some duly authorized agent, sign this deed, and 
thereby accept such ratable dividend in full satisfaction 

390] and discharge of the debt or debts due to the person so 
signing by the said firms of Rogers, Riddick & Co. or 
of Rogers, Adams & Co.; and thereby agree to re- 
lease said several firms and the members thereof from 



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OOTJRT OF APPEALS OF VIRGINIA. 417 

all obligation in law or equity for said debts. And if 1868. 
any of said creditors should fail to sign the deed, and Tera. 
a surplus should remain after satisfying the debts em- — 

braced in schedule B, and such of the creditors in Aals. 
schedule C as should sign the deed, then such surplus Cannon 
was to be distributed, pro rata^ among the creditors ^^^^ 
mentioned in schedule E, annexed to the deed. And 
the deed provided that the trustee should not be liable 
for any moneys other than such as should actually come 
to his hand in the execution of this trust; and that he 
should not be liable for any default or oniission of any 
of the agents whom he might employ to aid him in the 
execution of the trust. 

The schedule B, annexed to the deed, embraced 
debts amounting to a little over six thousand dollars; 
all of which were the debts of Rogers, Riddick & Co., 
except one of $325, which was a debt of William H. 
Eogers for house rent; and there was included in 
these an unascertained amount due to the trustee for 
money paid cut by him for costs and for legal services, 
&c., for Rogers, Adams & Co. and Rogers, Riddick 
& Co. ; the whole amount did not exceed three hun- 
dred doUars, as stated by the trustee in his answer. 
The debts of Rogers, Riddick & Co. embraced in 
schedule C, of which the amounts are given, come to 
about $24,000, but there are a number of creditors 
named whose debts are not specified; the debts of 
Rogers, Adams & Co. amount to about $4,200. 
There is no schedule E annexed to the deed ; but there 
is a schedule D, the debts embraced in which are esti- 
mated at between eight and ten thousand dollars. 

This deed was adoaitted to record in the clerk's 
oflBce of the Hustings Court of the city of Richmond 
on the 30th of November, 1866. 

On the 29th of December, 1866, Gordon, Fellows ^39^ 
Vol. xvirr — 53 



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418 COURT OF APPEALS OF VIBOINIA. 

1868. and McMillan, and a number of others who were 
Term, creditors of Rogers, Riddick & Co., filed their bill 
^ , against Cannon the trustee, Rogers, Riddick A: Co., 
&al8. Rogers, Adams & Co., Mrs. Mary Jane Rogers, and 
Cannon ^^^ creditors secured in schedule B of the deed, in 
&al8. ^vhich they charged that the deed was incomplete, 
fraudulent in law and void, and tended to hinder, de- 
lay and defraud the plaintiffs. That it was incom- 
plete in this, that it refers to and makes schedule A a 
part of the deed without appending it thereto. They 
charged that the deed was fraudulent in law" : First — 
That it requires the creditors in schedule C to release 
and discharge the gr<intors, and also Samuel R. Adams, 
who is charged to be the only solvent member of the 
said firms, not himself being a party to the deed, or 
convoying any property to meet the liabilities of said 
firms; and though the &aid grantors had not conveyed 
in the deed all their social and individual property. 
Second — In undertaking to satisfy the debts of Rogers, 
Adams & Co., which firm the plaintiflF averred were 
solvent and able to pay their debts, out of the assets 
of Rogers, Riddick & Co., believed to be insolvent; 
and at the same time to require a release by the credi- 
tors of the members of both firms. Third — In author- 
izing the trustee to appoint agents, &c., and at the 
same time relieving him from liability for any money 
or other thing received by them. And it was charged 
that the trustee bad employed the grantors, or one of 
them, as his agents to take possesaion of the stock of 
gocds and sell the same and receive the money. 
Fourth — That schedule A not being annexed to the 
deed, the creditors have no means of forming an opin- 
ion as to the propriety of accepting or rejecting said 
deed ; and that the power of appointment vested in the 
trustee gives to the grantors, or one of them, full con- 



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COURT OF APPEALS OF VIRGINIA. 411) 

Uol of the assets of Kogers, Riddick & Co., and takes 1868. 
from the trustee the position he should occupy for the xe^. 
protection uf the interests of debtors and creditors, and — 

defeats the pretended object sought to be secured by & als. 
the execution of the deed. And the bill fuither cannon 
charges, that the trustee Cannon was a beneficiary ^^^l^Ao 
under the deed, and a creditor of the two firms; and "- 
as such, preferred to the plaintiffs. And they insist, 
that the deed thereby becomes a mortgage, with all 
the equities of a mortgage attached to it. And they 
pray, that the trustee, his agents, &c., may be en- 
joined from selling any of the property attempted to 
be conveyed by said deed ; that the sheriff of the city 
of Richmond be appointed a receiver to take possession 
of said property unless the trustee, or some one else, 
should give security to have the property forthcoming 
to abide the decree of the court; that the plaintiff's 
debts might be paid out of the property; and for 
general relief. 

An injunction was awarded to enjoin E. Y. Cannon, 
his agents, and all others from paying or otherwise 
parting with the money derived from sales, or acquired 
in other manner, under the deed of trust mentioned 
in the bill, until the further order of the court. 

Rogers, Riddick & Co. answered the bill on the first 
Monday in January, 1867. They deny all fraud 
charged in the bill. They say, that immediately 
upon the execution of the deed, the doors of their 
warehouse Wore closed, and, under the direction of 
the trustee, a complete inventory of theii stock, at 
cost prices, was at once commenced, and has been 
since completed; a copy of which is exhibited with 
their answer; and they state the nature of their busi- 
ness and the circumstances which rendeied some delay 
in preparing the schedule A unavoidable. That in 



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420 COURT OF APPEALS OF VIRGINIA. 

• 

1868. the deed they endeavored to describe their assets a 
Te^. ^^^y ^ possible; and that a complete schedule cf tl3< 

"~ — \ — assets would have been annexed long since but fcr tin 

Gordon ° 

&als. proceedings instituted by the plaintiff; and that thevi 
Cannon ^^^ made every effort, by letter, verbal communica 
o(f:)i^^* tion and otherwise, to give the fullest information ii 
regard to the assets, to every creditor interested in tha 
deed. They deny that the members of the firm hav< 
kept back any part of their individual pro|>erty; ij 
fact, William H. Rogers is the only one who had anji 
property, and the Texan land mentioned in the deei 
is all that he possessed. They deny that the assets 
had been put into the hands of any one than by th( 
trustee ; all that he did v\ as to employ William H. Rogi 
ers, under his own direction, to superintend the inveD 
tory of the stock, and the other two members of tin 
firm were employed in arranging the goods for sale i 
auction. 

They say further, that Samuel R. Adams, when h< 
withdrew from the firm of Rogers, Adams & Co., tool 
with him but fifty dollars; that he has no property 
and the assets of Rogers, Adams & Co. were all cod 
veyed in the deed. That this firm is indebted to Kog 
ers, Riddick & Co. for advances made to pay thei 
debts; and is not solvent. 

They say that the stock of goods conveyed in tb 
deed, and which was inventoried at cost prices, i 
$12,008.45, has since been sold at auction, and hi 
brought the gross sum of $9,200. 

The trustee, in his answer, says, that as trust e, h 
took immediate possession of the stock of goods, am 
proceeded to sell the same on the best possible terms 
and that he now has the \n hole net proceeds of sal 
under his control as trustee ; that all the bills receivabl 
of said firm were endorsed to him, and have been place 



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COURT OF APPEALS OF VIKGIMA. 421 

in bank for collection. That it is true he did employ 1868. 
William II. Eogers, as stated in the answer of the firm, jerm. 
because it was physically impossible for him to execute , 
the trust without some agent; and that the authority &als. 
given to Rogers has been most faithfull}' executed. Cannon 

The whole property of Rogers, Riddick & Co., and ^^in^ 
Rogers, Adams & Co., appears to have been conveyed 
JQ the deed. The partners, except Wm. II. Rogers, 
seem to have had no property of their own, and Rid- 
dick and Pendleton Rogers put no capital into the con- 
cern. Adams also appears to have had no property. 
As to the relative condition of the two parties, that 
of Rogers, Riddick & Co. seems to have been con- 
siderably the best. 

On the 14th of March, 18(37, the court, on the motion 
of the defendants, dissolved the injunction ; and there- 
upon the plaintiffs applied to a judge of this court for 
an appeal, which was allowed. 

Turner^ Johnscyti <J& Guigon^ for the appellants. 
Sieger cJ& Saiuls^ and Cannon^ for the appellees. 

lfoN( LRE, p. Whatever may be the law and course 
of judicial decision in other States on the subject, 
there can now be nc doubt but that in this State, a 
debtor in failing circumstances may make a valid as- 
signment of his whole estate (subject, however, to ex- 
isting liens thereon), for the benefit of his creditors, 
in such order of priority as he may choose to prescribe 
in the assignment; and though his estate be insuffici- 
ent for the payment of all his debts, he may lawfully 
subject it, in the first place, to the payment in full of • 
such cf his debts as he may choose to prefer, and then 
to the payment pro rata of the claims of such of his 
other creditors as may, in a limited period, (which 



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422 COURT OF APPEALS OF VIRGINIA. 

1868. should be reasonable,) accept the terms of the assign- 
Ter^ ment, and release hira from all further or other lia- 

"T~T — bility on account of said claims. And such an assign- 

Aals. ment may be valid, e\ea though it do not direct any 

Cannon surplus which may remain after satisfying the claims 

& als. qI i\^Q accepting and releasing creditors to be applied 

to the payment of his other debts, or any of them; or 

395] even though it direct any such surplus to be paid to 
the debtor himself. 

That such is the settled doctrine in this State, is 
abundantly shown by the cases of Skipicith^s ex* or v. 
Cunningham^ dcc.j 8 Leigh 271; Kevan <j& aU, v. 
Branchy 1 Gratt. 274; and Phippen v. Durham (& 
ah.y 8 Id. 457. Whether the doctrine be sound in its 
origin or not, it ought to govern our courts until other- 
wise provided by the legislature. As was said by 
Allen^ P., in an opinion concurred in by all the other 
judges, in Dance cfe als. v. Seaman i& als., 11 Gratt. 
780 : **It would disturb many titles if the principles 
heretofore established and sanctioned by the practice 
of the country were now to be questioned. If incon- 
venience results from the construction heretofore given 
to the statute against fraudulent conveyances, the 
remedy should b«3 administered by the law-making 
power. An act of the legislature would operate pro- 
spectively, and men could regulate their transactions 
so as to conform to its provisions. But a decision of 
the court giving a new and diflferent rule of construc- 
tion, would have a retroactive, and, therefore, an un- 
just operation." 

Of course, if there be any intention on the part of 
the debtor, in executing the assignment, to delay, 
hinder or defraud creditors, &c., it is void as to such 
creditors, by the express declaration of the statute; 
saving only the title of a purchaser for valuable con- 



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COURT OF APPEALS OF VIRGINIA. 423 

sideration, and without notice of the fraud. No ap- 1868. 
pearance of fairness on the face of the assignment can Tenn. 
give effect to it in such a case. Fraud may be proved ^^^^^ 
by the deed itself, or by evidence aliunde. When & als. 
proved by the deed itself, it is called constructive, or Cannon 
legal fraud, and cannot be disproved by evidence *^^^^' 
aliunde. Mere badges of fraud, which sometimes ap- 
pear on the face of the deed, and sometimes from evi- 
dence aliunde^ unlike constructive or legal fraud, may 
always be repelled by other evidence. 

In this case it certainly does not appear that there [396 
was any actual intention to delay, hinder or defraud 
creditors. If actual fraud be charged in the bill, it is 
positively denied in the answer, and there is no evi- 
dence in the record tending to prove it, but the con- 
trary. Indeed, the bill seems to state a case only of 
constructive or legal fraud. 

Then the question we have to consider is. Whether 
the deed of trust in this case is void according to the 
doctrine settled by our decisions before referred to ? 

In order to maintain the validity of such a deed, or, 
at least, that part of it which provides for the pay- 
ment of debts on the terms of the execution of a re- 
lease by the creditors, it is necessary that all, or sub- 
stantially all, the debtor's estate should be conveyed 
by the deed. Shipwith^s ex^or v. Cunninyham^ i&c; 
Phippen v. Durham <& ah.; iihi supra. The debtor 
is permitted by such arrangement to protect his future 
earnings from the pursuit of such of his creditors as 
may enter into it, but not a portion of his present 
property. *'He may protect his person, indeed, by a 
fair composition, and a surrender of all his property, 
bui he cannot protect a part of that property by giv- 
ing up another part. Such an attempt is fraudulent 
and void.'' 8 Leigh 292; Quarles cfe aU. v. Kerr <& 



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424 COURT OF APPEALS OF VIRGINIA. 

1868. als.^ 14 Gratt. 48. But it is not necessaiy for the 

Term, deed to show on its face that all the estate of the deb- 

"GordoiT ^^^ ^^ conveyed. That fact may be proved by evidence 

&al8. aliunde. In neither of the case of Kevan ik als. v. 

V. 

Cannon Branch cfe als.^ and PMppen v. Durham t6 aU^^ did 
^^^' it appear on the face of the deed that all of the 
property of the debtor was conveyed. In PMppen v. 
Durham cfe aU, all of the debtor's property was not 
in fact conveyed, yet so nearly all as to bring the case 
within the operation of the rule. The amount omitted 
w^as too small to show that it was omitted for the pur- 
pose of securing any benefit to the debtor. The 
397] omission must have been from inadvertence. What in- 
validates a deed in such cases is, an intention to delay, 
hinder or defraud creditors, &c. ; and unless there be 
such an omission of property in the deed as shows such 
an intention, it is not material. Any omission of 
property foi the purpose of securing a substantial 
benefit to the debtor (except such property as may be 
exempt by law from distress or levy), conclusively 
shows such an intention. In the case we have in 
hand, it plainly appears on the face of the deed that 
all of the partnership property of the grantors was 
conveyed, but not that all of their individual property 
was conveyed. In order to bring the case within the 
operation of the rule before referred to, it was neces- 
sary for the deed to convey all of the individual 
property of the grantors, as well as all of their social 
property. For though the debts provided for were 
only partnership debts, yet they bound the partners 
personally, and the release stipulated for by the terras 
of the deed was a release not only of the firm of Rog- 
ers, Riddick & Co., and Rogers, Adams & Co., but 
of the members thereof individually. It sufficiently 
appears on the face of the deed, that the two tracts 



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COURT OF APPEALS OF VIKGINIA. 425 

of land in Texas thereby conveyed, were the individual 1868. 
property of W. II. Rogers; but it does not appear on Term, 
the face of the deed that he had no other property, ~ 
nor that his companions had no individual property. tScals. 
The evidence in the record shows that W. H. Rogers cannon 
had no other individual property than the land in '^^^^• 
Texas, and that his co-partners in the said firms had 
no individual property at all of any value. The deed, 
therefore, strictly complies with the rule which re- 
quires that all the property of the grantors should be 
conveyed in such a case. 

But it is objected, that the deed not only requires 
that the grantors should be released, but also that 
Samuel R. Adams, who is not a grantor, stiould be 
released. If the property of the firm of Rogers, 
Adams & Co. was properly conveyed for the purposes [398 
of the deed — a question which will be hereafter con- 
sidered — it seems to follow that he ought to be re- 
leased from the debt? of that firm, as well as the other 
partners. 

Again it is objected, that the deed is incomplete in 
this, that it refers to and makes schedule A a part 
thereof, whereas it was not attached or appended there- 
to before the execution of the deed. There was no 
necessity for such a schedule to give effect to the deed — 
the property thereby conveyed being sufficiently 
described therein for that purpose. Skij}with''s ex^'or 
V. Cunningham, (be; Kenan <£ ah, v. branch: 
Phippen v. Durham cfc ah. supra; Lewh cfe ah, v. 
Caperion's ex" or iS: ah, 8 Gratt. 148; Brashear v. 
F(?«^, 7 Peters R. 608, 614; Burrill on Assignments, 
276-278, and cases cited. The deed does not refer to 
schedule A as being actually annexed thereto, but only 
states that an inventory of the stock will, as soon as 
practicable, be taken and marked schedule A, and 
Vol. xviii — 54 



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426 COURT OF APPEALS OF VIRGINIA. 

1868. annexed to the deed, ** which schedule, when so 
Terai. annexed, is to be taken as a part of this deed." It 
was inconvenient to make out the schedule in time to 



Gordon 
& als. be annexed to the deed before its execution, but it 

Cannon ^^^ made out immediately thereafter, and filed \Cith 

<^alfi. the answer of Rogers, Riddick & Co. in this case 

within about a month after the execution of the deed, 

and nearly a month before the expiration of the period 

of sixty days named in the deed. 

Again, it is objected to the deed, that it ''under- 
takes to release the trustee from all liability except 
for money actually received by him; thus releasing 
him from all resix)n8ibility in the selection of his 
ageuts, or for the supervision of their actions; enabl- 
ing him to be guilty of gross and wilful negligence, 
to appoint incompetent and corrupt assistants without 
any responsibility; and attempting to compel the 
399] creditors to sanction this unlimited grant of power 
over the effects, under penalty of being excluded from 
any enjoyment of the fund." And it is said that, 
under the deed, the trustee has the power to employ, 
"ani actually does employ, one of the grantors to 
manage and control the business, to sell the assets and 
collect the moneys due; his employee admitting him- 
self by the deed to be insolvent and irresponsible. 
These clauses in the deed they claim to be inconsistent 
with, and tending to defeat, the objects of the deed, 
and as such render the deed fraudulent and void." 

The deed does authorize the trustee ''to employ such 
agents, etc., as he may deem necessary, and to pay 
then: a reasonable compensation for their services out 
of the trust fund;'* and does provide, *'that the said 
trustee shall not be liable for any moneys, other than 
such as shall actually come to his hands in the execu- 
tion of the trust; and that said trustee shall not be 



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COURT OF APPEALS OF VIRGINIA. 427 

held responsible for the default or omission of any of 1868 

the agents whom he may employ to aid him in the Term. 

execution of the trust." ~ ^ 

Gordon . 

There is nothing i?ery unusual in these provisions, &al8. 
which are inserted out of abundant caution, at the in- Cannon 
stance and for the protection of the trustee; and they ^ *^^- 
do not very materially, if at all, vary the legal lia- 
bility of the trustee. Burrill on Assignments, 227. 
The employment of agents by a trustee is often neces- 
sary to enable him to execute the tiust, and such ne- 
cessity existed in this case. He is bound to select fit 
agents, and to hold them to a strict and prompt respon- 
sibility for their acts; and having discharged this obli- 
gation, he is not liable for any loss arising from their 
acts or defaults, even though there be no clause of 
exemption from such liability in the deed. Such a 
clause of exemption as is contained in the deed in this 
case does not discharge him from his obligation afore- 
said. While he is not responsible *'for any moneys 
other than such as shall actually come to his hands in 
the execution of his trust," he is responsible for his [400 
negligence in not appointing fit agents, and in not 
holding them to a proper account. 

But, after all, such a clause could only be material 
as a badge of fraud, and as tending to prove that 
there was an understanding between the debtor and 
trustee, that the debtor should continue to use and 
enjoy his property, notwithstanding the deed. If 
such was the fact, the deed would of course be fraudu- 
lent. But if such was not the fact, if the clause was 
only inserted out of abundant caution on account of 
the trustee, it coula have no effect on the validity of 
the deed. If the creditors were not satisfied with it, 
or with such an exemption as it might be supposed to 
afford to the trustee, they might have aaother trustee 



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428 COURT OF APPEALS OF VIRGINIA. 

1868. appointed in his place. In this case it clearly appears 
Term. ^^ ^^^ record that the clause was net inserted in the 
^ , deed for any undue or unlawful purpose, and that no 
* & als. evil whatever has resulted from it. The trustee has 
Cannon ^ right to employ agents when necessary, even with- 
^ ^^^' out an express power in the deed for that purpose, 
and being bound to employ the most suitable persons 
as such, may employ the debtor himself when /ie is 
the most suitable person for the purpose. In Marks 
(& ah, V. Hill i& als.y 15 Giatt. 400, it was expressly 
stipulated in the deed that one of the grantors should 
be the agent of the trustee to make sale of the goods, 
which agency might be terminated at any time by 
either one of the preferred or any three of the deferred 
creditors, and yet the deed was held to be valid. 
See also Bnrrill on Assignments, 185, 472, and cases 
cited in Ihe notes. In this case, the debtors were 
employed as agents by the trustee, and the record 
clearly shows that they were the most suitable persocs 
for the. purpose, and that benelit, and not injury, re- 
sulted to the trust fund from their en ployment. 
Agcin it is objected, that the deed, being made to 
401 1 a creditor in trust to secure his own demands, is a 
mortgage, to which the right of redemption is inci- 
dent, and the creditor trustee cannot sell by the mere 
authority of the deed, and without resorting to a 
court of equity. 

This is an objection which does not strike at the 
validity of the deed, but only at the power of the 
trustee to act as such. The trustee, being the agent 
of both parties, deotor and creditor, ought to be an 
impartial person ; and generally the creditor is sup- 
posed not to be such a person, and will not be per- 
mitted to act as trustee, especially in regard to real 
estate, though the deed provitle for liis doing so. 



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COURT OF APPEALS OF VIRGINIA. 429 

Chowning \, Cox i& ah.^ 1 Rand. 306. It seeirs not 1868. 
to have been yet decided by this court that this prin- xera. 
ciple extends to personal estate. 1 Lomax's Dig. last "7^"^ 
ed. 423. Moore' 8 ex^ov v. Aylett's ex\)r^ i&c.^ 1 Hen. &als. 
& Mun. 29. Though the reasons assigned by the caniion 
court in Chowning v. Cox apply as strongly to per- ^ ^^^• 
sonal as to real estate. 1 Tuck. Com. book 2, p. 
104. But the debtor may sanction and confirm a 
sale, even of real estate, made by his creditor as 
trustee, and will be considered as having done so by 
being present at the sale, and making no objection. 
Tay}<yr'B cuhn^rs^ c&c. v. Chowning^ 3 Leigh 654. 
And it is not perceived why, if the debtor has no ob- 
jection, the co-creditors of the trustee should have 
any. Generally the interest of all the creditors is the 
same, so far as relates to the execution of the trust, 
and would be safe in the hands of any of them as 
trustee. In this case the trustee had a comparatively 
small claim, which was included in th« first or pre- 
ferred class of debts secured by the deed, and there 
seems to I e no good ground of objection to his acting 
as trustee. There can be no doubt about the suffi- 
ciency of the trust fund to pay the preferred debts. 
The sale of the goods has already been made, with 
the sanction and concurrence of the grantors in the 
deed, and the proceeds are more than enough to pay 
the preferred debts; So that whatever just ground [402 
of objection, if any, might once have existed to the 
action of Cannon as trustee, it can now no longer 
exist. 

Again it is objected, that the deed requires the 
creditors to release without information as to the 
assets or liabilities. * 

AVhen creditors are put to their election, whethei 
they will accept the provision made for them by the 



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4r30 COURT OF APPEALS OF VIKGtNIA. 

1868. debtor in an assignment of his property, and give him 
Term. ^ release, or be excluded from the benefit of the as- 
~ j signment, it is leasonable that the deed should give to 
ik als. the creditors all the information in the power of the 
Cannon debtor, as to the nature and value of the property 
& als. conveyed, and the amount of the debts intended to be 
provided for, and a reasoable time. to obtain such in- 
formation as the deed may not afford, and to make 
up their minds deliberately and understandingly 
whether thej^ will accept or reject the offer made to 
them. If this be not, when it can conveniently be, 
done, the omission might at least be a badge of fraud, 
though it might not in itself amount to legal or con- 
structive fraud. In this case, it seems that all the in- 
formation was given by the deed which could, under 
the circumstances, conveniently be given in regard to 
the subject conveyed and debts provided for; and the 
necessary means were immediately taken and dili- 
gently pursued by the trustee and grantors to give the 
speediest and fullest information in their power to the 
creditors, who might easily have obtained, within the 
period limited by the deed, all the information neces- 
sary to enable them to make their election properly. 
The period limited by the deed, sixty days from the 
date of its recordation, seems to have been reasonable 
under the circumstances, and as long as was given in 
some other cases in which the deed has been sustaired. 
In Sk!j)icith^8 e^or v. Cunningham^ <J&c., four 
months after the date of the deed was the period 
403 1 limited. In lie van ck als, v. Branchy three months 
was the period. In Phij)pen v. Durham db als.^ the 
period was but thirty days from the date of the deed. 
In neither of these cases^ was there any schedule an- 
nexed to the deed ; nor, in the first, were the credi- 
tors, except those of the first class, named in the 



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COURT OF APPEALS OF VIRGINIA. 431 

deed. There seems, therefore, to be no good ground 1868. 
of objection to the deed in this case on account of any xera. 
defect of infoimation which it ffives as to the assets or "t; ' 

® Gordon 

liabilities. & als. 

The next and last objection is, **that by the terms cannon 
of the deed the partnership assets of Rogers, Riddick ^ *^^* 
& Co. go pro rata to pay the debts of Rogers, Adams 
& Co., without any estimate of the debts or assets of 
dtbei;" so that the plaintiffs, ** creditors of Rogers, 
Riddick & Co. were, therefore, either compelled, by 
signing the deed, to consent to the misappropriation 
of the social assets of the debtors to the payment of 
the debts of Rogers, Adams & Co., or by refusing to 
sign, to cut themselves off from all benefit of the 
assets of the debtors." 

The counsel for the appellees * 'admit that it was a 
defect in the deed to dispose indiscriminately of the 
assets of these two concerns," but they say that "it 
is a mistake to suppose that such a defect invalidates 
the deed. For precisely this mistake was corrected 
in the case of McCuUough cfe als, v. Sommerville^ 8 
Leigh 41 5 ; and the deed was so reformed as to apply 
properly the several kinds of assets." On the other 
hand, the counsel for the appellants insist, that that 
case differed essentially from this; that "in that case, 
there was no requisition for release; the creditors 
were not required to sign the deed under penalty of 
entire exclusioE from the assets of their debtor. " "The 
debitors of Rogers, Riddick & Co. were cut off, by 
the very terms of the deed, from obtaining such an 
equitable reformation of the deed as obtained in Mc- 
C^dlmigh & als. v. Sommerville. They were required 
to release their debtors, Rogers, Riddick & Co., and [404 
at the same time to consent (by their acceptance of 
the deed) that the assets of Rogers, Riddick & Co. 



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432 COURT OF APPEALS OF VIRGINIA. 

1868. should go, pro rata^ to the payments of the debts of 

Term. Kogei's, Adains & Co., and that, too, without even 
— knowing what the debts of Rogers, Adams & Co. 

&. als. were. ' ' 
Cannon There can be no doubt but that it was competent 

& als. Iqy the grantors in this deed to convey the said eflfects 
of Rogers, Adams & Co., notwithstanding Adains, 
one of the firm, did not join in the deed, in trust to 
secure the payment of the debts of the firm, or any 
of them, either pi^o rata^ or in such order of priority 
as they thought fit to prescribe. McCullongh A ak. 
V. Sommerville^ 8 Leigh 415; Anderson v. Tojnpkinff^ 
1 Brock R. 456; Harrison v. Sterry^ 5 Cranch's E. 
289; Burrill on Assignments, pp. 43-G4, and the cases 
citea. 

Xor can there be any doubt but that it vvas compe- 
tent for the grantors in this deed to convey the serial 
effects of Rogeis, Adams & Co. in trust for the pay- 
ment j9;'6> rata of the debts due by said firm, to such 
of its creditors as should, within the period limited, 
sign the deed, and thereby accept such ratable divi- 
dend in satisfaction of said debts, and agree to release 
the said firm and the members thereof, from aH lia- 
bility on account of the said debts respectively. If 
partneis convey all their social and individual property 
for the payment of their debts, there is the same lea- 
son for authorizing them to prefer such of their credi- 
tors as will give them a release, as theie is for autho- 
rizing an individual, who conveys all his estate for*thc 
payment of his debts, to give such a preference. It 
cannot be necessary to cite authority to sustain so 
plain a proposition. The case of Pearpoint v. Gm 
ham^ 4 Wash. C. C. 232, stated in Burrill on Assdgn- 
ments, p. 47, assumes the proposition without ques- 
tion, and is decided upon such assumption. Thert 



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OOUKT OF APPEALS OF VIRGINIA. 433 

was a question in that case whether the assignment 1868. 
was 'valid, being executed by one only of the part- Term, 
ners; but the learned judge thought it had been rati- "TTL — 
fied by the other partners, and so became the act of & als. 
the firm; and on that ground it was sustained. Cannon 

Nor can there be any doubt but that it was compe- ^ffkf- 
tent for the grantors in this deed to convey by one 
and the same deed, instead of by different deeds, the 
individual estate of W. H. Rogers and the social 
eflfe.5ts of Rogers, Riddick & Co. and of Rogers, 
Adams & Co. , in trust for the payment of a debt of 
W. H. Rogers and debts of the said two firms respec- 
tively. If authority be required for so plain a propo- 
sition, it may be found in the case of MoCvUough d& 
als, V. Sommerville^ 8 Leigh 415; so that if in this 
case the net proceeds of the effects of Rogers, Riddick 
<fe Co. had been devoted in the first place to the pay- 
ment of debts of that firm, and the net proceeds of 
the effects of Rogers, Adams & Co. had been devoted 
in the first place to the payment of debts of that 
finn, the arrangement would have been legal and 
valid, notwithstanding the condition of release on 
which the payments might be directed to be made. 

Nor can there be any doubt but that if there had 
been no release clause in this deed, it would have been 
legal and valid, notwithstanding it directs the pro- 
ceeds of the individual property of W. H. Rogers, 
and the social effects of Rogers, Riddick & Co. and 
Rogers, Adams & Co. to be applied indiscriminately 
to the payment of a debt of W. H. Rogers and debts 
of said firms. McCullowjh cfe als, v. Sommerville^ 8 
Leigh 415, is an express authority for that proposi- 
tion, according to which case, the court of chancery 
in such a case will reform the deed, according to the 
probable intent of the grantors and the justice of the 
Vol. xviii — 55 



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434 COURT OF APPEALS OF VIRGINIA. 

1868. case, and apply the individual fund in the first place 
Terai. ^^^ ^^® payment of the individual debt, and the part- 

•"^~~j nership funds in the first place to the payment of the 

&al8. partnership debts lespectively, observing the order 

Cannon ^i^^ preference established by the deed. The court held 

4.rmf ^ in that case, that though the deed neither m entioned the 
partnership, nor distinguished the social effects and 
social creditors from the individual property and indi- 
vidual creditors of the grantor, but purported on its tace 
to convey his individual property, for the paym^it of 
individual creditors named in the deed, in two classes, 
according to a certain order and preference therm 
established, yet it was not fraudulent, either in fact 
or in law. ''"V^as this deed fraudulent?" enquired 
Judge Carr in that case. '^ There is no evidence in 
the record to establish the fact; nothing to show an 
intention to withdraw the effects of the firm from the 
creditors, or by any covin or collusion to disappcHot 
their claims. On the contrary, the whole property, 
of every kind and description, not only of the firm, 
but of the individual partner McCullough, is conveyed; 
thus stripping himself and the firm (so far as the 
grantor could), of every atom of property, and sub- 
jecting it to the payment of the creditors named. 
And when the bill is filed, to take this fund from tiift 
trustees and put it under the guardianship of tbi 
court, to be administered by the court, he promptif 
answers, assenting to the measure, and praying tM 
the court would forthwith order a sale of the w 
subject; stipulating only that the proceeds shall 
a))plied to the favored creditors. This surely e 
that there w^as no fraud in fact^ either perpei 
or intended. But it is said that there is fraud 
law — fraud in the attempt ' by one partner to com 
all the property of the firm, and to devote this pro] 



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COURT OF APPEALS OF VIBGINIA. 



435 



to the payment of specified creditors, without giving 
his CO- partner any voice in the matter; and moreover, 
in jumbling together the separate and social funds^ ' 
and directing the separate and social creditors to he in- 
discriTninaiely paid according to the list. Let us look 
at these objections in their order. ' ' And after dispos- 
ing of the 1st, he proceeds thus in regard to the 2d : 
*'And though the deed does not devote the social fund 
exclusivi^ly to the social creditois, and the separate 
fund to the separate creditors, does it comport with 
the mild and beneficient spirit of equity, for this cause 
(the result, doubtless,,of ignorance and mistake), to an- 
nul the deed ? Is it not better to reform it, by throw- 
ing each class of creditors upon its own fund, and thvs 
reach the real justice of the case^ and probable inten- 
tion of the grantor? This is a power of frequent ex- 
ercise in equity ; one instance of which is in reforming 
joint bonds and making them operate as joint and 
several; upon the reasonable presumption that either 
through fraud, ignorance or inadvertence, the meaning 
of the parties has not been carried into effect." 

Now the only remaining question — and the question 
on which this cause depends — is, Does the release 
clause, as it is called, make any difference ? There 
was certainly, in this case, no fraud in fact, ''either 
perpetrated or intended." There was certainly none 
in law% in the conveyance being made by two only of 
the three members of the firm of Rogers, Adams & 
Co., nor '*in jumbling together the separate and social 
funds, and directing the separate and social creditors 
to be indiscriminately paid," or, rather, to be paid 
without expressly discriminating between these classes 
of creditors; for the deed does not direct them to be 
paid 'indiscriminately." Is there any in law, in re- 
quiring the defened creditors to give a release, as the 



1868. 
April 
Term. 

Gordon 
<&als. 

V. 

Cannon 
<&al8. 
[407 



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436 COURT OF APPEALS OF VIRGINIA. 

1868. condition on which they are to be allowed to partici- 
Term. P*^^ ^ ^^® benefit of the deed ? Why should there 
"T— j be ? Why may not a court of chancery reform the 
& als. deed in ttiis case as well as in the case of McCvUovgh 
Cannon ^ ^' ^* SommerviUe^ according to the prohahle intent 
& als. ^ fj^ grantors and the justice of the case^ and apply 
the individual fund in the first place to the payment 
408] of the individual debt, and the partnership funds in 
the first place to the payment of the partnership debts 
respectively ? The counsel for the appellants argue 
that that case differs essentially from this, in the fact 
tliat "in that case there was no requisition for a re- 
lease; the creditors were not required to sign the deed 
under penalty of entire exclusion from the assets of 
their debtor." '^The court, in deciding upon the 
deed (in that case), found no difficulty in separating 
the social from the individual assets, and the social 
from the individual debts. But no such question,*' as 
the counsel further argue, '^can arise or be adjudicated 
here." "The creditors of Rogers, Riddick & Co. 
were cut off, by the very terms of the deed, from ob- 
taining such an equitable reformation of the deed as 
obtained in McCullough <& als. v. Sommerville. They 
were required to release their debtors, Rogers, Rid- 
dick & Co., and at the same time to consent (by their 
acceptance of the deed,) that the assets of Rogers, 
Riddick & Co. should go pro rata to the payment of 
the debts of Rogers, Adams & Co., and that, too, with- 
out even knowing what the detts of Rogers, Adams 
& Co. were." Now this is a plausible argument; but 
it is not Si petit lo prificijni f When the grantors made 
the deed in the terms in which it is written, the case 
of McCullough cfe als, v. SommerviUe fixed its con- 
struction, and required it to be read as if it had been 
written so as to apply the individual fund in the first 



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COURT OF APPEALS OF VIRGINIA. 437 

place to the payment of the individual debt, and the 1868. 
partnership funds in the first place to the payment of xem. 
the partnership debts respectively. Suppose it had, ^^^ ^ 
in fact, been so written — can there be a doubt but that & als. 
the deed would have been valid ? But the legal con- cannon 
struction of the deed as actually written is the same. ^ ^• 
Why, then, should there be any more doubt in this 
case than there was in that, but that the deed is valid ? 
TV hat reason can there be for saying that the inten- 
tion of the grantors is different where there is a requi- 
sition for a release, from what it is where no such re- [409 
qaisition exists — that the intention is literal in the one 
case, and not in the other ? The deed in McCuUough 
cfe aU, V. SommerviUe could not legally take effect if 
construed literally, and therefore it was construed ac- 
cording to the probable intent of the grantor and the 
justice of the case. The deed in this case cannot 
legally take effect if construed literally, and for the 
same reason it ought to be construed according to the 
probable intent of the grantors and the justice of the 
case. If it was proper in McCullo%LgK dk ah. v. Som- 
merville to act upon the rule of construction which 
was established in that case, a fortiori^ it is proper 
to follow it in this (jase, after the lapse of more than 
thirty years since that decision was made. It is a fair 
and reasonable, and not a forced or strained rule of 
construction. The deed conveys the assets of two 
firms in trust to secure the payment of the debts of 
both, without expressing any discrimination. Why 
may it not be construed distributive ly — redendo sing- 
ula singulis — so as to require the assets of each firm 
to be applied, in the first place, to the payment of the 
debts of that firm ? Such a construction would seem 
to be consistent with the terms of the deed, and is 
necessary to make it valid and effectual. It ought, 



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438 COURT OF APPEALS OF VIRGINIA. 

1868. therefore, to be adopted — ut res magis vakat jiw//i 

Tem. P^^^^^' In McCidlough c& als. V. Som^inerv^ille \\i^\% 

"T — ', — was no bill filed to have the deed refomied on HH 
Gordon 

Aals. ground of mistake. The deed was treated in \k 
Cannon pl^^ings as devoting the social and indi\ddual effecti 

^ als. indiscriminately^ according to its apparent literal imp 
ports, to the payment of the social and individual debtat 
But to have so construed it would have been to mab 
it void, and therefoie it was construed distributivelyj 
according to the probable intent of the grantor aa 
the justice of the case. To be sure, the court in tb; 
case speak of reforming the deed, but that seems tl 
be an inapt expression, and what was done was ratbi 
410] to construe than reform the deed. The court has i^ 
more right to change the contract of the parties in 
deed which contains no condition of release than i 
one which does, and has no such right in either casa 
But if the court did intend to reform the deeJ in tha 
case, to ^^ reach the real justice of the case and proli 
able intention of the grantor,*' by analogy to the in 
stance referred to by Judge Carr of ^'refoimingjoiii 
bonds, and making them operate as joint and several 
then the same principle applies to this case, notwiti 
standing the condition of release contained in tli 
deed. 

Before I close this opinion, I beg leave to remari 
that I came into this court with strong predilection 
against that course of our own decisions whidihs 
tended to maintain the validity of such a deed as tb 
which is now in question — I mean a deed containii 
what is called ''the release clause," or a condition f 
a personal release cf the debtor upon a conveyance 
his estate for the payment of his debts. I was stroQg 
inclined to concur in the views expressed on this su 
ject by Chancellor Kent and Justice Story, besi^i 



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COURT OF APPEALS OF VIRGINIA. 439 

other distinguished jurists. Peihaps my previous 1868. 
practice had tended to lead me into this Kne of thought xem. 
and preference. In the case of Phippen v. Durham ^^ — 
& als.^ which came up for decision shortly after 1, Aals. 
came into the court, I took occasion to express this canoon 
original inclination of my mind, but 1 felt myself <^»^8- 
bound to bow lo. the authority of the case of Ship- 
withes ex" or v. Cunningham^ <&e,, and I therefore 
concurred in the decision which was made in Phip- 
pen V. Durham cfe aU. The longer I have remained 
in the court, the more convinced I have become of the 
value of the rule of stare decisis. And I regard the 
mle as especially valuable in its application to cases 
arising under the statute of fraudulent conveyances. 
No man can read BurriU on Assignments^ in which 
all or nearly all the cases on this subject are collected, [411 
without being struck, if not confounded, by the great 
conflict among them. Not only does this conflict ex- 
ist between the decisions of one State and those of 
another, but often the decisions of the same State are 
conflicting in themselves. Courts, after going in one 
direction, have veered about and gone in another until 
the Legislature has had to interpose and solve the diffi- 
culty. Now it seems to me to be wise for us to follow 
the course of our previous decisions, and leave it to 
the Legislature, if that course be wrong, to make a 
change. The propriety of doing so is clearly shown 
by the remarks of Judge Allen, in Dance <& als, v. 
Seaman dh als.j 11 Gratt. 780, which I have already 
quoted. 

I will further remark, that I feel in full force the ar- 
gument founded on the supposed hardship of excluding 
the plaintiffs and other non-accepting creditors from 
any participation in the benefits of the deed in this 
case, when there was so much apparent doubt and 



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440 COURT OF APPEALS OF VIRGINIA. 

1868. diflBculty as to the construction and effect of the deed. 

Term. *^^ ^^^ consequence of accepting its terms. But the 
^ , — supposed hardship arises, not from the peculiar terms 

Aals. and effect of the deed in this case, but from the law, 
Cannon ^hich authorizes a debtor in failing circumstances to 

& alfi. gjyg preferences in the distribution of his estate among 
his creditors, and to require a personal release as a 
condition of receiving the benefit of any such prefer- 
ences. Such a debu)r, not having estate enough to 
pay all his debts, may, of his own mere will and cap- 
rice, convey his estate for the payment of a portion of 
them, leaving the rest wholly unprovided for; and the 
creditors thus excluded would have no leffcU right to 
complain. A fortiori^ it would seem, creditors to 
whom an election is given to participate in the bene- 
fits of the deed, but who declines to accept its terms, 
have no such right to complain. No doubt which may 
exist as to the construction of the deed, nor any diji- 
412] cultj/ which may arise in making an election, can aflfect 
the case, if the meaning of the deed can be ascer- 
tained and it was not intended to delay, hinder and de- 
fraud creditors. The circumstances which create the 
doubt or difficulty may tend to prove, and even be 
in themselves, sufficient to prove such an intention, 
and make the deed void; but if no such intention ex- 
isted, the deed is valid. It is not enough, therefore, 
for the appellants to show that it was doubtfol, or at 
least not certain, when the deed in this case was exe- 
cuted, whether the principle decided in McOallough 
dc als. V. SommerviUe would apply to it. Parties are 
presumed to know the law. And though the pre- 
sumption is often not founded in fact, it is yet neces- 
sary, and well established in law. The deed being 
valid, and its construction settled by the decision just 
referred to, the accepting creditors are entitled to tne 



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OOUBT OF APPEALS OF VIRGINIA. 441 

benefit thereof accordingly, to the exclusion of the 1868. 

non-accepting creditors. Tem. 

The foregoing views bring me to the conclusion that ~7r~, — 

there is no error in the order dissolving the injunction & als. 

which was awarded in this case, and that it ought to Cannon 

be affirmed; \vhich is the only question presented for ^**^* 
tne decision of this court on this appeal. 

JoYNEs, J. I concur in the opinion delivered by 
the President, and I do noc propose to add anything 
to his discussion of the case. I wish to say a word, 
however, to explain my views of the case of McCul- 
lotcgh & als. V. Sommerville^ which give rise, on a 
former occasion, to considerable discussion and differ- 
ence of opinion in this court. Morriss^ adm*r Mor- 
riss adm?T^ 4 Gratt. 293. In that case, Judge 
Daniel, with whom Judge Brooke concurred, con- 
sidered the case of McCuUough <& cUs. v. Sommerville 
as decided on the assumption as a general principle 
of equity, that in the case of an insolvent partnership, 
the partnership assets must be applied to the payment 
of the partnership debts, and the separate assets of the [413 
partners to payment of their separate debts, in accord- 
ance with the rule which prevails in bankruptcy. 
Judge Allen, with whom Judge Cabell concurred, 
did not consider the case as proceeding on this prin- 
ciple, and confessed himself unable to understand on 
what ground the court undertook to reform the deed, 
which was admitted to be fair and bona fide, 

T)ie case, as it seems to me, may either have pro- 
ceeded on the ground supposed by Judge Daniel, or 
on the ground that as Gillespie, the partner of McCul- 
loagh, did not execute the deed, the partnership credi- 
tors had an equity through him to charge the partner- 
ship assets with the payment of their debts. Upon 
Vol. XVIII — 56 



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44:2 COURT OF APPEALS OF VIKOINIA. 

1868. either ground, the partnership assets were misapplied 

Tern, ^y ^^^ deed, so far as they were appropriated to the 
— payment of the individual debts of McCnllough 

&als. equally with the debts of the firm. This right 
Cannon ^^ ^^^ partnership creditors was treated as in the 

&al8. nature of an equitable lien, which the separate act of 
one partner could not defeat. It became necessary, 
therefore, to reform the deed, so as to secure the pre- 
ference of the partnership creditors in respect to the 
partnership debts. The arrangement made by the 
deed being thus disturbed in respect to the partnership 
assets, justice to the individual creditors required that 
a corresponding change should be made in respect to 
McCuilough's individual property. This was so, even 
if there was no general rule requiring that the sepa- 
rate property of each partner should be devoted first to 
his separate debts. 

It was said in that case, that this reformation of the 
deed would effect the *' probable intention of the 
grantor." This expression is obscure. J'or there is 
no evidence in the case that McCullough did not really 
intend exactly what he effected by the terms of the 
deed, namely, a blending of both classes of propertr 
414] and of both classes of debts, without discriminatioiL 
But I suppose the meaning of the court to be only thia, 
that McCuUough intended, by means of the twoclasaei 
of property, to provide for the payment of both classei 
of debts, and that he probably considered that the 
substantial effect of the arrangement was, to apply to 
individual property to the payment of his individml 
debts, and the partnership property to the payment rf 
the partnership debts. The intention was not tta 
ground on which the court proceeded in reformiif 
the deed. 

Whatever was the ground on which the court pr> 



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COURT OF APPEALS OF VIKOINIA. 443 

ceeded in reforming the deed in that case, it equally 1868. 
applies in this. If it was the gi^ound supposed by xera. 
Judge Daniel, it of course applies equally in the present , — 
case. If it was the other ground, above suggested Aals. 
by me, it also applies in this case, because Adams did Caniion 
not execute the deed, and the creditors of Rogers, ^ *^^' 
Adams & Co. have, therefore, a right, through him, 
to have the assets of that firm applied first to the pay- 
ment of their debts. I do not think it necessary, 
therefore, to determine on which of these grounds 
McCuUough cfe als. v. SommervilU proceeded. In 
either case, it is a direct authority for the decision 
which we now make, in reference to the construction 
and effect of the deed in the present case. 

But if McCuIlough dk als. v. SommerviUe proceeded 
on the ground that the partnership assets must, by a 
general rule of equity, be applied first to the payment 
of the partnership debts, and that this right could not 
be controlled by the execution of a deed of trust, I do 
not think it can be considered as necessarily holding 
a corresponding aoctrine in reference to the separate 
property and separate debts of the partners. For, as 
I have already said, justice to the individual creditors 
reqaured that the deed should be reformed for their 
benefit, when it was reformed for the benefit of the 
partnership creditors. It would have done violence [415 
to the intention of the grantor, as well as to the claims 
of his separate creditors, to reform the deed in one 
part and let it stand as to the other. Besides, what- 
ever may be the general rule of equity in the applica- 
tion of individual and partnership assets, it is very 
doubtful, to say the least, whether it ought to control 
the power of a partner to appropriate his separate 
property, by deed of trust, to the payment of his 
debts as a partner in preference to his separate debts. 



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444 COURT OF APPEALS OF VIRGINIA. 

1808. They are equally his debts, and equally binding on 

Term. ^^^ ^^ ^^^' ^^^ conscience. In Jackson v. Cornell^ 1 

"T"'^ — Sanf. Ch. K. 348, it was held by Yioe-Chancelior 

Gordon ' "^ 

<&al8. San ford, that a partner cannot wake a valid assign- 
Cannon Kiont of his individual property for the payment of 

^ ^^^' debts, for which he is bound as a partner, in prefer- 
ence to his individual debts. He rested the decision on 
the ground that there is a general rule of equity which 
requires that, in case of insolvency, the separate 
property of a partner shall be applied first to the pay- 
ment of his separate detts, as in bankruptcy, and that 
the partner could not control the operation of this rule 
by an assignment. In the case of Whitely^ McConkey 
dk Co. V. May cfe als. , decided in the Circuit Court of 
Petersburg in 1850 by Judge Scarburgh, and reported 
in 1 Liv. N. S. Law Mag. 442, Ihe cas3 of Jackson v. 
Cornell was expressly overruled, on the ground that 
there is no such rule of equity as supposed by the Viee- 
Chancellor, and it was held, that a deed of trust made 
by an insolvent merchant, by which he conveyed his 
individual property to secure the payment of debts for 
which he *vas bound as a partner, in preference to his 
individual debts, was valid. I applied to this court in 
term for an appeal, citing Jackson v. Cornell and Mc- 
CulUngh (& als. v. Sommei^Ule^ but the application 
was denied. 

With these explanations, I am content to folloTi the 
authority of McCuHoxufh & als, v. SornmervUle in ihis 
416] case. It removes the only difficulty I have felt. The 
hardship complained of by the appellants is chargeable 
to the doctrine long since fully established by the de- 
cisions of this court, that an insolvent debtor may con- 
vey his property in trust for such of his creditors as he 
may choose to prefer, and exact a release as a condition 
of participation in the trust fund. 



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CX>URT OF APPEALS OF VIRGINIA. 445 

Rives, J. There is only one provision of the deed 1868. 
of trust in this case which admits of serious question xeni. 
and debate. It is the second clause, wherebv the — ~", — 
trustee is required to ''distribute ratably any surplus &als. 
remaining after the discharge of the debts in schedule cannon 
B, among such of the creditors of the firm of Rogers, *^ ^^^• 
Riddick & Co. and of the late firm of Rogers, Adams 
& Co. embraced in the schedule marked C as shall, 
within the period named, sign the deed — thereby ac- 
cept such ratable dividend in discharge of the debt due 
them, by the said firms of Rogers, Riddick & Co. and 
of Rogers, Adams & Co. , and thereby agree to release 
said several firms and the members thereof from all 
manner of obligation or liability at law or in equity 
on account of said debts." That it is the right and 
privilege of a debtor, devoting his whole property by 
deed to the payment of his debts, to prefer one credi- 
tor or class of creditors to another; and to exact a re- 
lease of them, is fully established by the decisions of 
ihis court. I, also, fully concur with the President 
in the satisfactory and conclusive replies he has given 
to the other exceptions of the appellants to this deed. 
But after mature reflection, I am unable to give my 
assent to his treatment, of this particular provision of 
the deed, that I have just cited. I cannot, therefore, 
avoid with propriety a concise statement of the grounds 
of my dissent. 

AU of the debts provided for in this deed, with the 
exception, perhaps, of house rent, are partnership 
debts; and the effects, partnership effects, with the [417 
exception of the Texas lands belonging to Wm. H. 
Rogers individually. But the vice of the deed, consists 
in the confusion of the social assets and social debts of 
two separate firms, namely, of Rogers, Riddick & Co. 
and Rogers, Adams & Co. This is more startling upon 



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44:6 COURT OF APPEALS OF VIRGINIA. 

1868. a comparison of the respective condition of these firms; 

Term. ^^^ former, exhibiting a surplus of assets beyond liablli- 

"T""*^ — ties of $25,279. 59 ; and the latter, a similar sui plus of 
Gordon ^ 7 ? 7 r 

&al8. only $4,414.19. The competency of Wa. H. Rogers 
Cannon and James E. Riddick to convey by this deed, the assets 
&als. Qf Rogers, Adams & Co. is not contested; but where 
do the parties tc this deed get ttie right to bring the 
creditors of Rogers, Adams & Co. into a latable par- 
ticipation with the creditors of Rogers, Riddick & Co. 
in the assets of the lattei firm ? It is conceded, no 
such right exists; and that if such is the true legal 
effect of this provision, it is invalid. But it is claimed 
that this court has a right to reform the deed in this 
respect, and require these partnerships to be settled 
separately and apart, by devoting to each its own pai- 
ticular account; of social assei^s and social liabilities. It 
would be too monstrous to suppose that the individual 
members of the firm of Rogers, Riddick & Co. conW 
by any device bring the creditors of another firm into 
the distribution of their social effects. It Avould be a 
voluntary provision, without consideration, and there- 
fore void, to attempt thus tc create a lien in favor cf 
creditors of another concern, to which some of U» 
gr intors in the deed chanced to belong. 

But it is asserted, that while such is the plain and 
unmistakable declaration of the deed, the law ascribes 
to it a different effect, and construes it distrU/uUvdy 
in reference to the tvro partnerships. This pretensioa 
seems to me to proceed from a misconception of the 
case of McCallough <& als, v. Sommerville^ 8 Lei|^ 
415, which is relied upon for this position. The grounds 
418] of discrimination are not obscure. In that case, thi 
confusion was ot private^ with social debts and assets 
On the face of that deed, there was no mention or ap- 
pearance of a part/nership ; the evidence of it wase** 



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COURT OF APPEALS OF VIRGINIA. 447 

trinsic ; and it was due to subsequent revelations that 1868. 

it appeared that the grantor had by his deed jumbled Term, 
his individual with his social funds. But here it is 



Gordon 
not a question of that kind; there is no mingling of &al8. 

individual with partnreship funds in the sense in cannon 
which I am now treating this case; but the attempt is ^*^^- 
made to throw into hotch-potch the respective assets of 
two separate firms, and bind the creditors of each to 
a ratable distribution thereof. In that case, the refor- 
mation of the deed was predicated of the intention of 
the grantor. Judge Carr imputes this commingling 
of private with social funds to ''Hgnorance and mis- 
take ;^^ and the decree of the court conclusively shows 
that t^s distributive construction was resorted to as the 
means of arriving at ^Hhe justice of the case and the 
prdbahle inient of the grantor. ' ' Its language is, ' * that 
as the purpose of the deed was to provide for certain 
bona fde creditors of the firm, as well as for individual 
creditors of said Edward McCullough, although the 
deed does not devote the social fund exclusively to the 
social creditors, and the separate fund to the individual 
ci editors ; yet it will be proper for the court, in the 
exercise of its undoubted powers, to reform the deed 
in this respect, by throwing each class of creditors 
upon its own fund, and thus reach the justice of the 
case and the probable intent of the grantor." No 
wrong or injury could result from this course. It was 
the dedication of the individual property to individual 
debts, and of social assets to social debts; and could 
not be said to contravene the intentions of the grantor, 
if it did not promote them, as was alleged. But no 
such principle exists here; the intention here is clear 
that creditors of two separate firms shall be required 
to assent to the ratable distribution of the respective [419 
assets among them in common, and the acceptance of 



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448 COUKT OF APPEALS OF VIRGINIA. 

1868. such ratable dividends in discharge of their debt 
Term, under the penalty of forfeiting all interest in the tmi 
If, therefore, this clause is to be reformed in the 



Gordon 

& als. at bar, let be done so as to preclude injury to the 
Camion plainants in this suit, by not leaving them exposed 

& als. ^ijjg penalty. The language held out to them is li 
tually this : *' Your objection to the provision entitlii 
the creditors of another fiim to share with you in tl 
assets of Rogers, Riddick & Co. is propei ; this pro^ 
sion is invalid ana inoperative; but yet you must abi( 
the penalty you have incurred by failing to sigD th 
deed in the presciibed time; and while the deed is r 
formed in this respect, you take nothing by it, but t! 
benefit enures to others. ' What is the excuse for 
partial emendation of the deed ? It is that the 1^ 
effect of it should have been known to the compli 
ants, and they should have signed the deed and idi( 
upon obtaining this redress. But in my view, th 
case of McCullough <& als. v. SommerviUe is authoril 
only for this position, namely, that where the effec 
of a firm and its acting partner are promiscuously d 
voted by trust deed to individual and social debts, tl 
court will throw each class on its peculiar fund; ai 
is, by no means, authority for this other position, th: 
the court will proceed a step further, and uphold, 
analogy thereto, the jumbling of two partnership m 
cerns through this ingenious function of constmii 
distiibutively such a different provision for the adJM 
ment of partnerships. Rogers, Riddick & Co. , if tlH 
had made a common provision for social debts and 
debts of the individual members of that firm, 
have been well understood by their creditors, or, 
least, the legal advisers of such creditors, under 
treatment of such a provision in this case of J/f?Ci 
loujjh V. SommerviUe I but when they undertook. 



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COURT OF APPEALS OF VIRGINIA. 449 

by this deed, to bring the creditors of another partner- 1868. 

ship, namely, Rogers, Adams & Co., into the distribn- Term. 

tion of their social assets, namely, the eflfects of Rog- ^ , 

ers, Riddick & Co. and e converao^ what countenance & als. 

is afforded by that case to the wholly different preten- Cannon 

sion here ? It is allowable, under that decision, to * ?i^- ^ 

[420 
confound in a trust, private with social funds and 

debts, and the apparent wrong is rectified by an 
equitable adjustment thereof in the mode already in- 
dicated; but I most respectfully submit, it is no more 
allowable for one partnership to charge its assets with 
the debts of dJioihet pa/rtnership^ than it would be for 
an individual to charge his assets with the debt of 
anothei . 

Let us look into the principle of that decision. Mc- 
Cullough was responsible in solido for the partnership 
debts no less than for the individual debts; aod there 
was, therefore, no objection to reform the deed in this 
particular, either in conformity with the legal pre- 
sumption of his intention, or with a fixed rule of equit- 
able construction or relief. But Rogers, Riddick & 
Go. were not responsible, as a firm nor as individual 
members, for the debts of Rogers, Adams & Co., and 
it was not competent for them to dedicate the respec- 
tive assets of each interchangeably to the common 
ratable satisfaction of the respective creditors of each. 
Sach ao attempt is simply nugatory; it is voluntary 
and without consideration moving from the creditors 
of Rogers, Adams & Co. to the grantors in the deed. 
Especially should this attempt be avoided, when we 
consider the feature of a release, which did not exist 
in the case of McCidlough <& als, v. Som7?ierville, In 
the case of Phippen v. Durham cfe als,^ 8 Gratt. 478. 
Judge Baldwin, in treating of this condition of a re- 
lease, uses this language : ''The effect of such a con- 

VoL. XVIII — 57 



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450 COCET OF APPEAJL8 OF VIEOIKIA* 

iS^'JS. dition is to give the whole benefit of the trust to the 
Term, creditors who comply with it, to the exclusion of those 

"T; ; who fail to do so within the prescribed period. It 

<&als. has somewhat the nature of a forfeiture; and there 

Cannon Ought to be perfect fairness and good faith on the part 

4.^ 1*^ ^^ ^® creditors seeking to avail themselves of it. " It 
seems to me scarcely consistent with * 'fairness and 
good faith'' to give to the signing creditors alone, the 
benefit of the reformation of the deed accorded in this 
case; and to exclude therefrom the victims of this for- 
feiture. The penalty is an integral part of this 
clause; it cannot be sepaiated from it; and, in my 
view, should share its fate. 

This case of McCuUough <& als. SommerviUs subse- 
quently became the subject of examinatian and discus- 
sion in Morris^ adnCr v. Morris* adm^r cfe dU.^ 4 
Gratt. 293. Judges Daniel and Brooke united in con- 
sidering this case as establishing that the rule in bank- 
ruptcy affecting separate and joint creditors in their 
resort to individual and joint funds was to be regarded 
as a general rule of equity prevailing in this Common- 
wealth. On the contrary, Judges Allen and Cabell 
did not so interpret this authority; but considered the 
reforming of the deed, by throwing each class of 
creditors in its appiopriate fund, as the means adopted 
by ihe court of 'reaching the justice of the case and 
the probable intention of the grantor." The court 
was thus divided in opinion; and the instruction of 
the Judge below to the commissioner stood, namely, 
^*that joint or partnership creditors were not entitled 
to credit out of the separate estate of a partner until 
separate creditors were paid." This is conformable 
to the doctrine of the Supreme Court of the United 
States in the case of Murrill et, al. v. NeiU et. cU.y S 
now. U. S. R. 414. 



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COURT OF APPEALS OF VIRGINIA. 451 

So far as this present case is concerned, it is not, in 1868. 
my ^iew, material to settle the question growing out Term, 
of these discussions upcn the case of McCultotigh cfe "t; "^ 
ah. V. Sommercills in the latter one of Morris* admW & als. 
V. Morris^ adm?r <k als. Whether the reference of Cannon 
such classes of creditors to their respective funds is a **^^- 
fixed rule of equitable interposition in all cases, or [422 
fluctuates with the actual or presumed intention of the 
grantor in each case, is a question that has no bearing 
upon this commingling of the accounts of one partner- 
ship with the accounts of another partnership. For 
the present, therefore, I may content myself with the 
convenient refuge, ^''non nonstrum^ tantas componere 
lites.'' 

It is pertinent to our present inquiry to cite a strik- 
ing criticism of Judge Allen upon this case of McCvl- 
lough cfe als. v. Sommerville in these words: ^* Where 
the court found their authority to reform a deed so as 
materially to change its operation, after just determin- 
ing it was made in good faith and by a party having 
full authority to convey, I am at a loss to conceive; 
and this, too, without any evidence of mistake on the 
part of the grantor." How much more questionable 
is this intervention in the case at bar, when it is in 
contravention oi the clear intention and the whole 
scheme of the deed ; and of the justice of the case in 
excluding the penalty or forfeiture from the scope of 
the decreed refo^rraation of the deed ? 

I do not object to the reforming of the deed ; I may 
question and doubt the authority to do so; such relief, 
so far as it goes, meets my concurrence; but it stops 
short of the full redress to which, I think, the com- 
plainants are entitled. 

This brings me to consider the most material point 
of mv dissent. It consists in inv view and treatment 



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452 COURT OF APPEALS OF VIKGINIA. 

1868. of this obnoxious clause of the deed. I cannot agree 
Term. ^ ascribing to it a legal import in conflict with its 
terms. I have endeavored to show there is no 



Gordon 
& als. authority for doing so. I cannot defeat its operation 

Cannon ^7 such a construction, however ingenious ; nor can I 

& als. consent, while overruling it as to signing creditors, to 

leave it in full force against the non-signing^ whose 

objections to it are virtually sustained by the court 

here. 

I regard the whole clause, inclusive of the penalty, 

423] as invalid and inoperative. I do not impeach the h(ma 
fides of the grantors — I do not stigmatise the claose 
as actual fraud; it is, doubtless, constructively so, be- 
cause of foisting upon one partnership creditors of 
another partnership, and therefore stpangers to it 
The question therefors arises, whether it can be sepa- 
rately annulled without setting aside the whole deei 
Actual fraud, within the cognizance of the parties, 
would vitiate the whole deed; but no principle of law 
or reason seems to nee to inhibit the setting aside of 
an illegal and, therefore, an inoperative clause, at the 
same time that other parts of the deed are sustainei 
Even in the case of actual fraud affecting some of the 
debts secured by the deed, this court has declined to 
pronounce a conveyance thus minted void as to a fur 
and bona fide creditor, having no notice of any dis- 
honest purpose on the part of the grantor, so far as 
his indemnity was concerned. This was the caseot 
Billups V. Sears <& als.^ 5 Gratt. 31. This doctriM 
lodges with the court a virtual function of expurgaiim^ 
and is far ahead of the modest pretension I advance* 
to annul an inoperative clause cf a trust deed. Btfl 
this question has been so fully examined, and Al' 
authorities so satisfactorily cited and reviewed bf 
Judge Tucker in the case of Skip^oitK^s ex^or v. ftfli* 



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COURT OF APPEALS OF VIKGINIA. 453 

ningham d: als.^ 8 Leigh 271, I cannot better set forth 1868. 
and corroborate my views than by a copious extract Term, 
from his opinion in that case. It will save any expo- ^ , 
sition of my own views upon this point, or any com- &al8. 
ment upon the authorities he cites. It will also be Cannon 
seen that he foreshadows and justifies by anticipation ^ ^' 
the decision I have just quoted of BUlups v. Sears tfe 
ofo. He says, on page 293: '*I cannot agree that all 
the creditors are to lose the benefit of this security for 
the payment of their debts because an improper pro- 
vision, deemed fraudulent by construction of lavt , has 
been inseited in the deed. I am aware that a distinc- 
tion has been taken and sustained in some cases be- [424 
tween a deed avoided by statute and one which is 
only constructively fraudulent upon equitable princi- 
ples. 14 Johns. R. 458; 20 Id. 442. But I think 
there is another distinction. Where a deed is made 
for the security of various cieditors, whose claims are 
distinct and unmingled with each other, and where 
part are illegal and fraudulent, and another part are fair 
and untainted with fraud, the security shall not be 
avoided as to the latter, provided they have given no 
aid in any way to the concoction of the fraud. A 
deed of that character ought to be considered distribu- 
tively, and, while it is avoided in part, it should 
be effectual as far as it is good. If it were other- 
wise, then a deed of trust to secure the payment of 
ninety-nine just debts would be avoided by the fact 
that the hundredth was for usury or gaming; for the 
statute has declared all gambling or usurious secu- 
rities to be void. This cannot be; and accord- 
ingly this court, in the case of Kemper v. Kemper^ 
dbc.^ 3 Rand. 8, decided that where the transaction is 
of such a nature that the good consideration can be 
separated from the bad, the court will separate them. 



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454 COURT OF APPEALS OF VIRGINIA. 

1868. and consider the deed valid so far as it is entirely dis- 

Term. tinct from and unaffected by the illegal consideration. 
"7~~j So, in Skipwith v. Strother^ c&c.^ 3 Rand. 214, where 

& als. part of a bond was for gaming, and so in Fleetwood t. 
Cannon ^'i^^^^^, 2 Atk. 467, there cited, a mortgage, in part for 

& als. money lost at play, was avoided as to that, but held as a 
security for what was justly due. I am aware, indeed, 
that in Garland v. Rives, the deed was avoided in Mo; 
but there a gross fraud was committed upon the credi- 
tor, and the case affords no precedent for the case at bar. 
But even in that case, Judge Green admits that a d^ 
may be good as to part of the grantees and void as to 
others. 4 Rand. 309. As where a deed is made to 
secure a just debt, and the equity of redemption is 
reserved to a stranger or to the family of the debtor; 
425] such a deed would be valid as to the creditor, but Toid 
in respect to other creditors as to the reservation cf 
the equity of redemption. Ibid. So here the deed 
is truly of no effect as to other creditors in so far as 
the surplus goes; but it is valid and available as a 
security to the creditors specified, and those assentiog 
to the composition." 

The authority of this opinion, and the force of its 
reasoning, justify the conclusion that the obnoxious 
provision of this deed can be separated from its other 
provisions and annulled without affecting them. I 
do not understand my brothers as disagreeing with 
me upon the illegality of subjecting the assets of two 
concerns intercha7igeaJ}ly to the creditors of each; Iwt 
they remedy it by a reformation of the deed, which I 
think questionable, and not sanctioned by the authoiitr 
of McCullough (& als, v. SommerviUe, which they in- 
voke to that end. Besides, they leave in force the 
condition of forfeiture annexed to this invalid provi- 
sion. The relief which I am disposed to grant would 



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OOUBT OF APPEALS OF VIRGINIA. 455 

be the abrogation of the whole clause as illegal and 1868. 
inoperative, while the bona fides of the deed, and its Term. 



obligations in other respects, are not assailed. In "7~j 
this difference of opinion, therefore, I may be per- & als. 
mitted to take to myself the consolation of believing cannon 
that, in my disposal of this case, no hardship or in jus- ^ *^^* 
tice would ensue upon the failure to sign a deed with 
a provision admitted to be illegal, but claimed here to 
be susceptible of an equitable interpretation at war 
with its terms. 

For these reasons, I cannot concur in the affirmance 
of the decree below. 

Decree affirmed. 



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456 COUET OF APPEALS OF VIEGINIA. 



Bicfimonft. 

1868. Dearino's adm^x v. Ruoker. 

April 
Term. 
426J May 7. 

1. Where the parties to a cause waive a jury and submit the whole 

case to the decision of the court, upon a ^tement of &cts 
agreed, this statement is not to be treated as a special verdict 
or a case agreed in lieu of a special verdict ; but the coort 
may make any inferences from the facts stated that a jury 
might have made. 

2. R owes D for money received of or for D at several periods 

before June 14th, 1862. On that day the account is stated, 
interest charged, amount ascertained, and check given for it ; 
which if presented at bank, would have been paid in Con- 
federate money ; and R makes entry on his books, closing 
the account. On same day, D returns the check and takes 
R's note for the amount, payable January 1st, 1863. Held : 

1. The bond is a new transaction, unaffected by the previous 

dealings between the parties ; and is a bond for the loan 
of Confederate money. 

2. Under the act of March 3, 1866, for scaling Confederate 

debts, th^ time for the payment of the debt is the date 
at which the scale of depreciation should be ascertained 
and applied. 

3. To the value of Confederate notes, thus ascertained, 

nothing should be added on account of the present 
depreciation of current paper money compared with 
gold. 

On the 15th of January, 1866, Jane E. Dearing, 

executrix of William Dearing, brought an action of 

debt against A. B. Kucker, in the Circuit Court of 

427] Lynchburg, on a bond for $3,822.74, dated 14th 



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COURT OF APPEALS OF VIRGINIA. 457 

June, 1862, payable on the 1st of January, 1863, 1868. 
with interest at the rate of ^per cent, from the date. x^m. 
Issue was joined on the plea of payment, and the ^ : r 
parties waived a jnry and agreed their case to the fol- adm'x 
lowing eflfect: that the defendant was indebted to the Rucker. 
plaintiff's decedent on the 1st of January, 1862, in 
the sum of $1,362.13 for transactions before that time 
had between them; that on the 13th of February, 
1862, he received cash of said decedent, |1,491.81; 
that on the 14th of June, 1862, he received for said 
decedent, on account of sales of wool and other 
articles sold by defendant as the commission merchant 
of said decedent, $822.74; and upon a settlement be- 
iweeD the parties on that day, the defendant was 
found indebted to said decedent in the sum of 
$3,822.74, which included some interest that had ac- 
ciued on the sums which had remained in the hands 
of the defendant; that the defendant drew his check 
on one of the banks of the city (Lynchburg) for the 
said sum, in favor of the decedent; that the check, if 
presented at the bank, would have been paid in cur- 
lency, as the defendant had the same to his credit on 
the books of the bank; which check the plaintiff's 
decedent accepted, and the defendant balanced the 
accounts upon his books ; that after the decedent had 
so accepted the defendant's check, he represented to 
defendant tliat he had no use for the money, and that 
it would be an accommodation to him for the defen- 
dant to retain it; which, at length, the defendant 
^reed, as an accommodation to the decedent, to do; 
but upon condition that h^ should be allowed to pay 
it off on the 1st of January next following, and should 
pay interest at the rat^ of 4 per cent, per annum only ; 
that the bond in the declaration mentioned (which, 
with the endorsement of a credit of $400, October 
Vol. xviii — 58 



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458 COURT OF APPEALS OF VIBGINIA. 

1868. 24th, 1865, thereon is set out in haec verba\ was then 

Term, executed and delivered, and the check returned to the 

^ . , defendant. That in December, 1861, and in 1862, 
Deanng 8 ' ' 

adm'x and down to the close of the war in Apiil, 1865, the 
Rucker. treasury notes of the Confederate States were in gen- 
428] eral circulation as currency in the said city; that they 
were constantly dimioishing in value from the 1st of 
January, 1862, to the end of the war; that a table* 
which is set out in the record in haec verba^ shows the 
value of said currency in gold at various times in the 
said city; (from which table it appears that a dollar in 
gold was worth in said currency $1.25 in January and 
February, 1862, $1.50 in June, 1862, and $3 in Janu- 
ary, 1863); that on the day of the trial, the premium 
on gold, in legal tender notes cf the United States, was 
50 per centum in said city ; that the decedent died be- 
fore the bond became due, and there was no adminis- 
tration on his estate on the 1st of January, 1863; and 
that on the 24th of October, 1865, defendant paid to 
plaintiff $400 :n United States currency, on account 
of said bond. 

The Circuit Court was of opinion, upon the case 
agreed, that even if the bond aforesaid should be 
scaled at all, on account of the fact that it was under- 
stood between the parties, although nothing was said 
as to the kind of currency in which the same \ias 
payable, that it was payable in Confederate currency; 
yet inasmuch as $1,361.13 of said bond was due oo 
the 1st day of January, 1862, and $1,491.81 on the 
13th of February, 1862, and the residue on the day 
of the date of the bond, part of which residue was in- 
terest on said first mentioned sums; and inasmuch as 
the interest to be paid was only at the rate of ^ per 
cent, per annum ^ the defendant would have no reason 
to complain if the date of the bond was taken as the 



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COURT OF APPEALS OF VIRGINIA. 459 

time at which the scale should be applied. And it . 1868. 

appearing by the case agreed that $100 in gold was, Term. 

in the month of June, 1862, and at the date of ther — : — -• 
' ' Deanng's 

bond, worth $150 in Confederate treasury notes, and adm'x 
that $100 in gold was, on the day of the trial, worth RuJker. 
$150 in legal tender notes of the Uxiited States; so [429 
that, if the scale were applied and the amount due by 
the defendant were reduced to United States national 
cmrency, the amount of the bond would be the sum for 
which judgment should be rendered; for it seemed to 
the court that if the judgment were rendered only for 
the amount ascertained, after applying the scale, in 
gold, the same might be discharged by the payment 
of legal tender notes, while the gold is actually worth 
60 per cent, premium in legal tender notes. There- 
fore, the court rendered judgment for the amount of 
the bond, with iper cent, interest from its date, and 
costs, subject to a credit of $400 paid October 24, 
1865, disper endorsement on the bond. 

To this judgment of the Circuit Court, a supersedeas 
was awarded by the District Court holden at Lynch- 
burg; and the cause having been heard in that court, 
it was of opinion: 

1st. That upon the facts stated in the case agreed, 
the bond aforesaid ought to be regarde<i, for the pur- 
poses of the action, as a new transaction, unaffected 
by the previous dealings between the parties, which 
bad been fully closed and settled before the execution 
of said bond. 

2d. That if, according to the true intent of the 
l-arties to the bond, the sum was payable in Confede- 
rate States treasury notes, then, upon the facts 
agreed, the defendant in error in that court was en- 
titled to recover judgment in the action for the value 
of the amount of such notes, payable on said bond, 



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460 COUBT OF APPEALS OF VIBGINIA. 

1868. scaled according to the value of said notes in reference 
Terai. ^ g^ldj ^^ ^fa® 1st day of January, 1863, the case 

j^ : — r agreed not furnishing the materials for applying any 
adm*x other scale, if any other ought to be applied in this or 

Rucker. ^^ ^^7 case] as to which the court expressed no opinion; 
and that to the value so ascertained nothing should 
be added on account of the present depreciation of 
paper money as compared with gold. The court 

430] can only render judgment for money generally, 
without designating what is to be regarded as money; 
and no question can arise as to the obligation on the 
part of the defendant in error to accept payment in 
United States treasury notes, as being, under the act 
of Congress, the legal equivalent of coin, until such 
notes shall have been tendered in payment of said 
judgment and rt^fused; and the effect of so adding to 
the money value of said notes, a sum equal to the 
difference, at the date of the judgment, between coin 
and paper money, would be to make tue debtor pay 
more or less than he ought to pay, in proportion to 
the rise or fall in value of paper money, with refer- 
ence to coin, between the date of the judgment and 
the time of its payment. And 

3d. That the case agreed is too uncertain to enable 
the court to pronounce judgment upon it, because it 
does not state whether the said bond, according to 
the true intent of the parties, was or was not payable 
in Confederate treasury notes. 

Therefore, the District Court leversed the judgment 
of the Circuit Court, set aside the case agreed, and 
awarded a venire de novo for the trial of the issue 
joined. To which judgment of the District Court, a 
suj)er^eJea,s was awarded by this court, en the petition 
of the plaintiff in error. 



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OOUKT OF APPEALS OF VIRGINIA. 461 

The case was argued by Garland^ fcr the appellant, 1868. 
and Goggin c6 Kean^ for the appellee; but it is fully xerm. 
discussed by the ludffes. :;;^ ~t 

•^ J 3 Dearing's 

adm'x 

JoYNEs, J. I think it may fairly be inferred from Rucker. 
the facts stated by agreement of the parties, that the 
bond on which this action is founded was, according 
to the true understanding and agreement of the par- 
ties, to De paid in Confederate treasury notes; or, to 
speak moie accurately, that these notes were the sort 
of dollars and cents for which the bond was given. 
The District Court, proceeding upon the familiar [431 
principle applicable to a special verdict and to a case 
agreed to be argued in lien of a special verdict, held 
that it was not competent for a court to make this in- 
ference fiom the facts stated. But this was not a 
case agreed to be argued in lieu of a special verdict, 
as in Sawyer v. Corse^ 17 Gratt. 220, where the court 
could not do otherwise than apply to the case the 
same rules that would have been applied to a special 
verdict. In this case the whole matter of law and 
fact VI as submitted to the court in pursuance of the 
statute. The facts stated by agreement of the parties 
wero submitted to the court, without any restriction 
as to the mode in which they should be treated. It 
was, therefore, competent for the court to make such 
inferences from the facts thus submitted to it as the 
jury might have made from the same facts^ if they 
had been submitted to them. There was, therefore, 
no necessity for a venire de noco^ and it was error in 
the District Court to awaid it. 

The first point decided by the District Court is thus 
stated in the judgment : 

'^That upon the facts stated in the case agreed, the 
bond, executed by the plaintiff in error to the testator 



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462 COURT OF APPEALS OF VIRGINIA. 

1868. of the defendant in error, on the 14th day of June, 
Tem. 1S^>2, and on which this action is founded, ought to 

j^ :"~ be regarded, for the purposes of this action, as a new 
adm'x transaction, unaffected by the previous dealings be- 

Rucker. tween the parties, which had been fully closed and 
settled before the execution of said bond. 

The obvious meaning of the court was, that no part 
' of the consideraton of the bond should be r^arded 
as a specie debt, and that no part of it should be 
scaled as of a time anterior to the date of the bond. 
The parties had a full settlement, in which interest 
was credited to Bearing upon the money that had re- 
mained in Kucker's hands. The sum found due to 

432] Dearing, principal and interest, was §3,822.74; for 
this sum Rucker gave Dearing his check, which he 
accepted in payment, and Rucker balanced the ac- 
counts on his book. 

Subsequently, on the same day, this check was 
handed back to Rucker, who executed his bond for 
the said sum of $3,822.74, with interest thereon from 
that day. All previous interest was thus aggregated 
with the capital, and made to bear interest. The 
settlement was not cancelled in eflfect, for then interest 
should ha\e run upon each separate part of the con- 
sideration from its date, as if there had been no settle- 
ment. On the contrary, the bond was given on the 
footing of a settlement completely made, remaining 
undisturbed, and affording a new starting point for 
interest. If we should hold that one part of the ag- 
gregate sum for which the bond was given should be 
treated as a specie debt, and that other parts of it 
should be scaled as of different dates, or that any part 
of it should be scaled as of a date prior to the date of 
the bond, we should undo what the parties have agreed 
between themselves. The agreemert of Dearing to 



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COURT OF APPEALS OF VIKGINIA. 463 

accept the check in payment, which if presented at the 1868. 
bank would have been paid in Confederate notes, was Term, 
an agreement to accept such notes, as of that date, in j^ ^^ , 
satisfaction of his claim. The case must be treated, adm'x 
therefore, as a loan of Confederate notes at the date Rucker. 
of the bond, payable in Confederate notes on the 1st 
daj of January, 1863, with four^^r cent, interest. 

The next point decided is thus stated in the judg- 
ment: 

**2d. That if, according to the true intent of the 
parties to the said bond, the same was payable in Con- 
federate States treasury notes, then, ui)on the facts 
agreed, the defendant in error is entitled to recover 
judgment in this action for the value of the amount of 
such Confederate notes, payable on said bond, scaled 
according to the value of said notes, with reference 
to gold, on the 1st day of January, 1863; the case |433 
agreed not furnishing the materials for applying any 
other scale, if any other ought to be applied in this 
or in any case, as to which the court expresses no 
cpinion; and that, to the value so ascertained, noth- 
ing should be added on account of the present depre- 
ciation of papei money as compared with gold. The 
court can only render judgment for money generally, 
without designating what is to be regarded as money ; 
and no question can arise as to the obligation, on the 
part of defendant in error, to accept payment in 
United States treasury notes as being, under the act 
of Congress, the legal equivalent of coin, until such 
notes shall have been tendered in payment of said 
judgment and refused; and the effect of so adding to 
the money value of said notes a sum equal to the differ- 
ence, at the date of the judgment, between coin and 
paper money, would be to make the debtor pay more 
or less than he ought to pay, in proportion to the rise 



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464 OOUKT OF APPEALS OF VIKOINIA. 

1868. or fall in value of paper money with reference to coin, 
Tera. between the date of the judgment and the time of its 
r — : — - payment. ' ' 

Deanng'fi '^ *^ 
adm'x This involves two distinct propositions : 1. That the 

Rucker. Confederate notes should be reduced to their value in 
gold on the 1st day of January, 1863; the day on 
which the bond was payaule. 2. That to the value 
of the Confederate notes, thus ascertained, nothing 
should be added on account of the present deprecia- 
tion of current paper money compared with gold. 

I do not understand that the latter proposition is 
controverted, and I think it manifestly sound for the 
reasons assigned by the District Court.^ The same 
views were held in an analogous case by the Supreme 
Court of Missouri, in Henderson v. McPike^ 35 Mo. 
K. 225. 

No question has been raised as to the propriety of 
adopting gold as the standard with reference to which 
the Confederate notes should be valued. The facts 
434] agreed do not furnish the materials for applying any 
other standard in this case, if any other would be 
proper, and they indicate that the parties intended 
that the gold standard should be applied, if the debt 
vs as to be scaled at all. Gold, it is well known, was 
not a currency, but an article of traffic, during tne 
late war. Scarcely any article had a value that was 
less stable and uniform. It went up, and sometimes 
went down, for short periods, very suddenly, accord- 
ing to the vicissitudes of the war and the demands of 
speculation and adventure. Its value was not uniform 
m different places at the same time. At points remote 
frcm the cities, the people paid little or no attention 
to its fluctuations, and were not governed in their 
dealings by any reference to its value. 

There would seem, therefore, to be strong ground 



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COUBT OP APPEALS OF VIBGINIA. 466 

for saying, that gold does not fulfill the conditions 1868. 

necessary for an asolute standard, the most essential Term. 

of \f hich are uniformity and stability. But it is a r — : — - 

•^ '^ Deanng's 

convenient and practicable standard, and answers the adm'x 
purpose as well as any other that can be found; per- RuJker. 
haps better than anv other. At any rate, it is the 
standard generally adopted, and \iill be adheied to 
from convenience, and almost from necessity; for the 
dispatch of business requires that some standard should 
be assumed, and one that is capable of prompt and 
easy application. While I think that gold is not legally 
or logically the true and only standard for the valua- 
tion of Confederate notes, I have no disposition, for 
the leasons which I have mentioned, to disturb the 
practice which prevails, as far as I know, in all parts 
of the State. The important question in this case re- 
lates to the time at which the value of the Confederate 
notes should be ascertained. The case is of the first 
impression in this court. To determine it properly, 
it will be necessary to examine with care the principles 
which are applicable to this class of contracts. 

The act of March 3, 1866, which was in force when [486 
this case was decided in the Circuit Court and in the 
District Court, provided that the court shot Id, in 
every case, determine the time at which the value of 
the Confederate notes should be ascertained. By the 
act of 1781, (10 Hen. Stat, at Large 471,) establish- 
ing a scale of depreciation for Continental money, and 
providing a rule for the adjustment of contracts made 
with reference to that currency, an arbitrary rule was 
prescribed by which the scale was to be applied in all 
cases ''at the days or times" the debts or contracts 
*'were incurred or entered into." I take no notice 
now of the provisions of the fifth section of that act, 
to which I will advert hereafter. That act was passed 
Vol. XVIII — 59 



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466 COURT OF APPEALS OF VIRGINIA. 

1868. before the adoption of the Fe«leral constitution. There 

Term. ^^ nothing in the then existing constitution of the 

r — : — - State, or in the articles of confederation, to pre- 

Dearing's i . j • 

adm'x vent the Legislature from fixing an arbitrary and uni- 

Rucker. ^ <^rm rule for all cases, though it might often have the 
effect of controlling the agreement of the parties. We 
shall see hereafter, however, when I come to consiaer 
this act more particularly, that it was designed to 
carry into effect the real contract of the parties, and 
it would probably not have been liable to objection, it 
this provision of the constitution had then been in 
force. 

However this may be, it was certainly not compe- 
tent for the Legislature, in 1866, to pass any law im- 
pairing the obligation of a contract. Where the rights 
of parties have been fixed by their contract, no l^is- 
lation can modify or control them, in any manner or 
to any extent. This is equally true, whether the 
terms of the contract are expressed in words or implied 
by law. And, accordingly, the act of March 3, 1866, 
as I understand it, laid down no general rule, but pro- 
vided that the scale should be applied at the date of 
the contract, or at another time, ''as may to the court 
seem right in the particular case." 

436] The language of the a^t has been supposed to indi- 

cate that the Legislature intended to prescribe, as a 
general rule, that the notes shall be valued at the date 
of the contract, allowing an exception to be made when 
the justice of a particular case may require it. The 
form of expiession may afford some support to this con- 
struction, but it does not by any means require it. 
And we are not at liberty, by ''sticking in the bark" 
of a mere form of expression, to impute to the Legisla- 
ture an intention to exceed the limit of its powers, 



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COURT OF APPEALS OF VIRGINIA. 467 

when the language is consistent with a different con- 1868 
straction. Tem. 

It is apparent that, in referring the tim e at. which r : r 
the notes shall be valued to the decision of the court, adm'x 
the legislature regarded it as a question depending on Rucker. 
the legal rights of the parties. The Legislature had 
no authority to make contracts for parties, nor to alter 
their contracts when fairly made, and it could not 
confer such authority on the courts. All it could 
legitimately do was to provide the means of ascertain- 
ing what the real contract was, by such modifications 
of the rules of evidence as might be necessary for that 
purpose, and the means of giving eflfect to that con- 
tract when ascertained. It accordingly provided, in 
respect to contracts made after the Ist of January, 
1862, fcr the introduction of parol or other evidence 
to ascertain the true intention of the parties in respect 
to the currency in which a contract for the payment 
of money was to be fulfilled, or with reference to 
which, as a standard of value, a contract of any other 
sort was made. 

It assumed that a contract for the payment of Con- 
federate money was valid, and that a party might law- 
fully claim to have it enforced in substance, though it 
could not to any useful purpose, be enforced in form. 
No such question has been raised in this case. It left 
the contract, when its character was ascertained by 
its terms, or by evidence aliunde^ to be enforced ac- [437 
cording to its true legal construction and eflfect, to be 
determined by the laws applicable to other contracts. 
It could not have done otherwise, without a violation 
of the constitution. 

The act of March 3, 1866, was modified by the act 
of February 28, 1867, so as to provide that, in every 
"jury case," the jury shall determine the time with 



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468 OOUBT OF APPEALS OF VIRGINIA. 

1868. reference to which the Confederate money shall be 
Tem. valued. But it will appear, from what I have said, 

- — : — ~ that the jury have not an arbitrary discretion to fix 
adm'x the time as they please. The Legislature couW not 

Rucker. confer such a discretion -v^ithout a violation of the con- 
stitution. Whatever we may speculate about the real 
purpose of the Legislature, we must, if their language 
will allow it, impute, to them a lawful purpose, and 
put such a construction upon the act as will make it 
consistent with the supreme law. There is nothing in 
the language to pievent such a construction in this 
case. The jury are only substituted, in reference to 
this matter, in the place of the court. The time is to 
be fixed, under this law, by the jury, as under the for- 
mer law it was to bo fixed by the court, in conformity 
with the true construction of the contract, and the 
legal rights of the parties under it. It would be a 
grave error to suppose that either the Legislatuie or 
the courts can disregard the fair and lawful contracts 
of parties, in order to mitigate their hardship in par- 
ticular coses. I cannot be tempted by the hardship 
which often attends the strict enforcement of Confed- 
erate contracts, to sanction a principle in respect to 
them which is wrong in itself, and susceptible of in- 
definite abuse. If we relieve against such contracts, 
wholly or in part, we must do so in accordance Tvith 
the rules of law applicable to other contracts. We 
cannot, in such a case, more than any other, substitute 
another contract for that which the parties have 
made, because it proves to be a bad bargain to one of 
them. 

488] Confederate notes were not money, in a legal sense, 

though they passed as such, like bank notes. In a 
legal sense, they were like bank notes — a mere com- 
modity. They were a commodity which was measured 



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COURT OF APPEALS OF VIRGINIA. 469 

or ** enumerated in dollars and cents,'' like lawful 1868. 
money. A contract for the payment of so many dol- Term, 
lars in Confederate notes, was a contract to pay so j^^ . , 
many dollars of Confederate notes, or so many Con- adm*x 
federate dollars. The specification of dollars served Rucker. 
only to measure the quantity of the notes, so that in 
every such contract the quantity of notes to be de- 
livered Wo-s ascertained, though their value iright be 
micertain. The contract was for quantity only, and 
not for value. The remedj for the breach of such a 
contract is by covenant or assumpsit to recover dam- 
ages for the failure to deliver the specified quantity 
of notes, and the measure of damages is the value of 
the notes at the time when they ought to have been 
delivered. Beimev. Dunlap, 8 Leigh 514; Butcher 
V. Carlile^ 12 Gratt. 520. These cases fully establish 
these principles in reference to contracts for the pay- 
ment of so many dollars in bank notes. I cannot 
imagine a reason why they should not apply equally 
to contracts to pay so many dollars in Confederate 
notes. 

When, therefore, the contract is for the payment of 
Confederat-i notes, in express terms, or of so many 
dollars in Confederate notes, the sum to be recovered 
in an action upon it is the value of the quantity of . 
Dotes called for at the day of payment, whether the 
payment was to be made presently, or, as we say,' 
''on demand,'- or at a future day. In other words, 
the scale of depreciation must be applied at the day 
when the money was payable. 

Then suppose that the real understanding and agree- 
ment of the parties is, that the sum to be paid is so 
many nominal dollars in Confederate notes, but it is 
expressed on the face to be so many dollars generally, 
and the real agreement is ascertained by evidence [439 



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470 COURT OF APPEALS OF VIRGINIA. 

1868. aliunde. Such was the form of almost every contract 
'^rm. ^^^ Confederate notes. In such a case, I apprehend, 



^ . , debt will lie, because the bond on its face calls for 
adm'x money, and the act of Assembly which allows evi- 

Rucker. dence aliunde to prove the real agreement, does rot 
require that the plaintiff shall be turned out of court, 
and put to a new action. But the actual contract is 
the same, in the case now supposed, as if the bond 
called, on its face, for Confederate notes. In one 
case, this part of the contract is proved by w ords in- 
serted in the bond; in the other it is proved by evi- 
dence aliunde. And as the object of the law is to 
give effect to the real contract of the parties, it would 
seem to follow, of necessity, that the contract must 
have the same effect in each of these cases. In the 
case of a bond calling, in terms, for so many dollars 
in Confederate notes, at a future day, a tender of that 
quantity of Confederate T^otes, or of that number of 
dollars in Confederate notes, on the day of payment, 
would satisfy the contract, though they might have 
depreciated since the date of the contract, for the con- 
tract is for quantity, not for value. Beirne v. Dun- 
lap^ Butcher v. CarlUe^ uhi supra. And I can 
imagine no reason why such a tender would not be 
equally good when the agreement for Confederate 
notes is not expressed in the bond, but is supplied by 
evidence aliunde. The agreement of the parties is in 
all respects the same; the only difference is in the 
form of proof. The rights and liabilities of the par- 
ties depend on their agreement, and not on the evi- 
dence by which it is proved. 

The result is, that the scale must be applied at the 
time of payment in all cases where the agreement is 
that the sum called for is so many nominal dollars in 
Confederate notes, whether that agreement is ex- 



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COUKT OF APPEALS OF VIRGINIA. 471 

pressed on the face of the contract, or is established 1868. 
by evidence aliunde. In Kentucky it was held, in tJJJJ, 
reference to contracts made during the disastrous era ^ ^^ , 
of Commonwealth bank notes, that a contract for the adm'x 
payment of so many dollars in these notes was a con- Rucker. 
tract to deliver a commodity of a fixed quantity, and [^4:0 
that the measure of damages for the breach of it was 
the \ alue of the notes in specie at the day of payment, 
in conformity with the decision of this court in Beirne 
V. Dunlap. The same rule was applied where the in- 
tentiun in respect to the currency was not expressed 
in the contract. Thus, where there was a judgment 
at law upon a note for ^^two hundred and ten dollars," 
dated March 17, 1819, payable April 1, 1820, and 
upon a bill in equity it was proved that the parties 
understood and intended that the note should be paid 
in bank notes, the court gave relief against the judg- 
ment on payment of the value of the notes in specie 
on the 1st day of April, 1820, when the note was 
payable. HvstorCs ex^or v. Noble^ 4 J. J. Marsh K. 
130; ace., Da/vis db al. v. Phillips^ 7 Monr. K. 632. 
Where a note was for so many dollars in ''current 
money of Kentucky," (McCord v. Ford^ 3 Monr. K. 
166,) ''in the currency of this State," {Chambers v. 
Oeorge^ 5 Litt. K. 335,) "in the common currency of 
Arkansas," {DUlard v. Evans^ 4 Ark. R. 175,) the 
courts took judicial notice that bank notes were 
the common currency at the time, and hence inferred 
that such notes were the currency or sort of dollars 
contemplated by th^ paities. But it was never inti- 
mated that the measure of recovery in such a case was 
different from what it would liave been if the currency 
or sort of dollars had been expressed on the face of 
the contract. 
These conclusions must be sound, unless a party 



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472 COURT OF APPEALS OF VIRGINIA. 

1868. who sues now upon a contract for the pajrment of so 

Term. '^'^^J dollars in Con^erate notes, whether the agree- 

7; : — r ment as to the kind of dollars is expressed or proved 
Deanng 8 ^ ^ 

adm*x aliunde^ is entitled to receive more, or is bound to 
Rucker. a^^cept less, at the hands of the court than he was en- 
441] titled to receive at the hands of the defendant, if the 
contract had been fulfilled. To give him more would 
be to compel the defendant to pay more than he 
agreed to pay ; to compel him to accept less, would 
be to discnarge the defendant upon the payment of less 
than he bound himself to pay. To do either would 
be to change the contract, not to enforce it. And, 
accordingly, the general rule in actions founded on a 
breach of contract is, that *'the amount which would 
have been received, if the contract had been kept, is 
the measure of damages if it be'broken. ' ' Broom Com« 
634. 

In Robinson v. Noble* 8 adrri'r^ 8 Peters' K. 181, 
the contract was for the payment of certain freight 
at so much a barrel, payable on delivery of the goods 
in paper of the Miami Exporting Company, or its 
equivalent. The Supreme Court held, that the plain - 
tiflf was only entitled to recover the value of the Mi- 
ami Company's notes at the time at which they ought 
to have been paid. These notes purported to be 
money, and circulated as such, to gome extent, m 
business transactions. The court said: *' Robinson 
failed to make the payment at the time, and is he 
now bound to pay the nominal amount of these notes 
in specie ? What damage has Kcble sustained by the 
non-payment ? Certainly not more than the value of 
the notes if they had been paid. Had these notes 
been equa] to specie on the day of payment, Robinson 
was bound to pay them, or what was of equal value. 
If they had depreciated to fifty cents in the dollar, 



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COUBT OF APPEALS OF VIRGINIA. 473 

Noble \vas bound to leceive them in discharge of the 1868. 
covenant. Each party incurred a risk in the fluctua- Term, 
tions of the value of the notes specified, and nothing r — : — ;" 
could be more unjust, or moro opposed to the spirit adm'x 
and letter of the contract, than to require Robinson Rucker. 
to pay in specie the nominal value of these notes. 
The law aflBxes no such penalty for default of pay- 
ment. Robinson can only be held liable to make good 
the damages occasioned through his default, and the 
specie value of the notes, at the time they should have [442 
been paid, is the rule by which such damages aie to 
be estimated." 

It has been said that the principles applicable to 
commodities cannot apply to Confederate notes, be- 
cause they had no intrinsic value, were not based on 
anything of value like the capital of a bank, or con- 
vertible into any thing of value like a bank note. 
But this is fallacious. A gold dollar has intrinsic 
value, because the metal is valuable without the im- 
press which stamps it as coin. A bank note has no in- 
trinsic value beyond that of the paper on which it is 
printed. But it has an actual value beyond that, in 
proportion to the ability of the bank to redeem it. 
It may not be yet payable, like a post-note, or it may 
not be possible to convert it into coin at the counter 
• of the bank, but everybody attributes value to it, and 
will exchange other values for it. It may really be 
worthless from the insolvency of the bank, and yet 
pass current as possessing value, because it is not 
known to be worthless. A United States treasury 
note has no intrinsic value beyond chat of the paper, and 
it represents no value which can be appropriated to 
its redemption by means cf legal proceedings, like the 
assets of a bank. But it represents the faith and 
credil of the United States, in which people confide. 
Vol. XVIII — 60 



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474 COURT OF APPEALS OF VIRGINIA. 

1868. So Confederate notes represented the faith and credit 
Term. ^^ ^^^ Confederate States, in which the people confided 

r — : — - to the extent that they attributed value to the notes, 
adm'x It is undoubtedly true, that the parties in this case, 

Rucker. ^^^ ^^^ people generally, dealt with Confederate 
notes, to a certain extent, as money. They regarded 
their relation as that of debtoi and creditor, and not 
that of buyer and seller. But that was equally true 
in the case of Beirne v. Dunlap^ where the contract 
was for the payment of so many dollars in '* notes of 

443] the United States bank or either of the Virginia 
banks." The notes of these banks were the common 
currency of the State, with which the people dealt as 
money. It was so in the Kentucky cases in reference 
to contracts payable in Commonwealth bank nottis, 
which was the common currency, and in every other 
case in which the kind of notes specified is that which 
was current in the daily transactions of business, ful- 
filling the common ofiices of money as a medium of 
exchange and a measure of value. But this considera- 
tion was not allowed to overrule the legal principles 
applicable to such contracts. Though the people, for 
convenience or from necessity, treated Confederate 
notes, as they treated bank notes, as money in their 
business transactions, the law can only regard them, 
as it does bank notes, as commodities. And, indeed, 
it is only by so regarding them that any leagl remedy 
can be afforded upon a contract for the payment of 
such notes. They cannot be recovered as money ; all 
that can be done is to recover their value as commodi- 
ties. 

How can we say that the law^ in thus regarding 
Confederate notes disappoints the intentions or the 
reasonable expectations of the parties ? While they 
dealt with such notes from necessity as money,* they 



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COURT OF APPEALS OF VIRGINIA. 475 

knew that they were depreciated in value, and might, 1868. 
and probably would, undergo still further depreciation. Term. 
Is it possible for us, if we were at liberty to speculate ~ : r 
on the subject, to assume that they did not take this a<im*x 
into account in their transaction, or that, though they Rucker. 
allowed for it, they did not allow enough ? Every 
contract for the payment of Confederate notes was 
essentially a contract of hazard. When property was 
sold on a credit, the seller might, and probably would, 
indemnify himself against the risk of depreciation by 
an enhancement of the price. Hence, sales weie 
generally made for cash after the depreciation had 
become considerable. A lender of money could not 
thus indemnify himself against the risk of depreciation, [444 
and hence loans of money were rarely made on long 
credits. And we can well understand how a man hav- 
ing money, and not knowing how tb invest it, or 
being unwilling to incur the hazard or the odium of 
speculation, might be willing to put it out at interest, 
and thus avoid some portion of the loss he would other- 
wise incur by the depreciation. When we remember 
the confidence which for a long time was felt in the 
success of the Confederacy, and in the ultimate value 
of Confederate money and bonds, we can readily be- 
lieve that, in the summer of 1862, parties would not 
feel much concern about the depieciation of the money. 
At any rate, I venture to affirm, as a matter of fact, 
that nobody who took a note which was intended to 
be paid at a future day in Confederate notes, either 
for the sale of property or the loan of money, ever ex- 
pected to receive, or ever did receive, more ihan the 
same nominal sum mentioned in the note, with the in- 
terest upon it, unless there was a special contract 
that he should have more. 

It is fallacious, therefore, to assume that justice re- 



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476 COURT OF APPEALS OF VIRGINIA. 

1868. quires that the notes should be valued at the date of 

Tern. ^^^ contract, and not at the day of payment agreed 

~ — : — 7 upon, on a presumption that parties, in making their 

adm'x contracts, had reference only to the value of the notes 

Rucker. ^^ ^^^^ time. 

But suppose we could make this presumptioD. 
When a party sues upon a contract for the payment of 
money, or for the delivery of a commodity, we look 
to the promise, acd not to the consideration of it, to 
ascertain the lights and obligations of the parties re- 
spectively. If, at a time when wheat is worth one 
dollar a bushel, a party agrees, in consideration of 
$1,000 paid in cash, to deliver 1,000 bushels of wheat 
at the end of six months, will not 1,000 bushels of 
wheat satisfy the contiact, though it should, at the 
end of the six months, be worth only fifty cents a 
bushel ? And will not $500 be the full measure of dam- 
445] ages for a breach of the contract ? The cases cited 
from 8 Leigh and 12 Grattan show that the same rule 
applies to the case of a contract to pay so many dol- 
lars in bank-notes, and proof of the consideration on 
which the promise was made would not vary the rule. 
In an action on a contract, the law does not undertake 
to give the party the value of the consideration which be 
advanced, but only to give him what the other agreed 
to pay for that consideration, whether equivalent to 
it or not. The position I am considering ignores the 
contract, and treats the action as if it was upon a 
quantum valehat^ or an action of trover. 

The lawful money of tbe country has a certain and 
uniform value attributed to it by law. Its actual 
value, in reference to other things, may fluctuate, by 
reason of a debasement of the coin, or by the substitu- 
tion of paper for coin, or by the operation of Extrinsic 
causes, such as an increase in the supply of the precious 



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OOUKT OF APPEALS OF VIRGINIA. 477 

metals, or political disturbances, or the vicissitudes of 1868. 
coramerce. But the legal value of the money, be it Tera. 
coin or paper, remains the same, and a contract for the r~": — p 
payment of so many dollars at a future day, will be adm'x 
satisfied by the payment of that number of dollars on Rucker. 
the day of payment agreed on, though they may be 
of less actual value than at the date of the contract. 
In other words, the depreciation in every such case 
falls upon the creditor. The authorities on this sub- 
ject are fully collected in Story on Prom. Notes, sect. 
390, and note, and sect. 399-395. The same doctrine 
is laid down in Rodes v. Bronson^ 34 N. Y. R., 649 
(655). Whether we treat Confederate notes, there- 
fore, as a commodity or as money, the general rule of 
law is that the depreciation in their value between 
the date of the contract and the day of payment agreed 
on, must be borne by the creditor. Those who insist 
that the value of the notes at the date of the contract 
is the true measure of recovery, regard them neither 
as a commodity nor as money, or rather they regard [446 
them partly as money and partly as a commodity. 
They say that a contract on any given day during the 
war, to pay so many dollars at a future day, has re- 
ference to dollars bearing a certain actual value at the 
date of the contract, and binds the party to pay an 
equivalent value on the day of payment. Thus far 
they treat the notes as money, and hold the contract 
to be a contract for value, and not a co. tract for 
quantity. But when the contract is to be fulfilled by 
payment, or when redress is sought for a failure to 
fulfill it, they refuse to treat the notes as money. 
They deny that the contract can be satisfied, or the 
breach of it compensated for, by the same nominal sum 
on the day of payment agreed upon, unless it is of the 
lal value as at the date of the contract. For 



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478 OOTJBT OF APPEALS OF VIKGINIA. 

1868. the purpose of fixing the liability, they regard the 
Tenn. i^^tes as money ; for the purpose of discharging it, they 

r : 7" regard them as commodity, to be received only at its 
adm'x actual value. 

Rucker. ^^ order to maintain the right of the Legislature to 
fix the date of the contract as the time when the scale 
should be applied, as a general rule, it has been said 
that this class of contracts should be regarded as for 
eign contracts, and that such coo ti acts are enforcable 
in our courts by comity only, and upon such equitable 
terms as the Legislature may prescribe. I shall not 
stop to inquire whether these contracts can be justly 
regarded as foreign contracts, or how far the Legisla 
ture may impose terms upon the privilege of enforcing 
such contracts in our courts. Conceding all that i&i 
assumed in this view, it does not serve the purpose for 
which it is advanced. If the Legislature may reqmrei 
a plaintiff who comes into our courts to enforce a Con 
federate contract, to submit to equitable terms for tb^ 
relief and protection of the defendant, how can thi< 
authorize the Legislatuie to enlarge the plain tiff'l 
rights against the defendant, beyond the legal effert 

447 1 of the contract ? That is what must be maintained to 
entitle the Legislature to gi\e to the plaintiff the valn^ 
of the notes at the date of the contract, though by th^ 
legal effect of the contract the defendant was onlj 
bound fcr the value at the day of payment agreed oD| 
which might be, and generally was, less than the valoi 
at the date of the contract. To do this, the Legisla? 
ture must have power to do moie than impose equitabli 
terms on the plaintiff; it must have power to changi 
the contract by hoUing the defondant bound for morl 
than he undertook. 

The right of the Legislature to refuse a remedy il 
our courts upon contracts made in another State, oi 



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OODKT OF APPEALS OF VIRGINIA. 479 

in a foreign country, which, though lawful and valid 1868. 

where made, are inconsistent with our policy, or in xe^m. 

fraud of our laws, or of the rights of our citizens, or r — :— " 
' ^ ' Bearing's 

against good morals, or the like (Story Confl. § 244), adm'x 
is not in conflict with the constitutional provision Rucker. 
which forbids the Legislature to impair the obligation 
of a contract. A contract made in another Stale, or 
in a foreign country, is as much within the protection 
of that provision as a contract made here. 

It has been objected, that the views I have been 
maintaining in reference to these contracts, would re- 
salt in giving the cereditor nothing in those cases in 
which, at the day of payment agreed on. Confederate 
notes had ceased to circulate, or to be of any value. 
If this was so, it would have no legitimate tendency 
to prove that those views are unsound. It must be 
observed, however, that the subject of contract, in 
this class of cases, is paper circulating as currency. 
It is not merely the paper itself, without its attribute 
as a currency or circulating medium. If, at the day 
of payment fixed in such a contract, ( /onfederate notes 
had ceased to circulate, or to have value as a cur- 
rency, a tender of such notes in payment would not 
satisfy the contract. It does not follow, therefore, 
from what I have said, that, in the case supposed, the 
creditor would recover nothing. A different rule must [448 
be applied in such cases from that which applies in the 
cases I have been considering, where, at the day agreed 
on for payment, the notes continue to circulate and to 
have value as a currency. There may be some diffi- 
culty in saying what rule should be applied in such 
cases. It would be premature and improper to deter- 
mine it in this case, as a question does not arise. 

The general rule, therefore, is, that in an action on 
a contract to pay so many dollars in Confederate 



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480 COURT OF APPEALS OF VIRGINIA. 

1868. notes, the plaintiff is entitled to recoi?er the value of 
Terra, ^uch notes at the day of payment fixed by the con- 



r — : — " tract, and the rule is the same whether the kind of 
Deanng 8 ' 

adm'x dollars contracted for is specified on the face of the 
Rucker. contract, or is proved by evidence aliunde. The 
fourth section of the act of March 3, 1866, indicates 
clearly that such was the understanding of the Legis- 
lature. But the statute authorizes the court or the 
jury, as the case may be, to give the value of the notes 
at such time as may ''seem right" in the particular 
case. This has reference to the actual understanding 
and agreement of the parties. Nothing less than such 
an understanding or agreement, assented to by both 
parties, is sufficient to overrule the intention of the 
parties implied by law from the terms of the promise 
to pay. What evidence may be received for this pur- 
pose, it is not now necessary to inquire. A like ques- 
tion, under the act of 1781, gave rise to much differ- 
ence of opinion. Watson^ ex* or v. Alexanders 1 Wash. 
353; Smith v. Walker, 1 Call 39; BogU cfe aL v. 
Vowles, 1 Call 244; Commonwealth \ . Beaum>archais, 
3 Call 122. Whatever be the range of evidence allow- 
able, the court or the jury must be governed by the 
agreement and understanding of the parties, and not 
by their opinion of what is called the ''natural justice" 
of each case. 

There is nothing in the facts of this case to show 
449] that there was any understanding or agreement be- 
tween the parties inconsistent with that which the law 
implies from the terms of the bond, nor anything from 
which it can be inferred or implied. It is true, that 
the sura lent consisted of Confederate notes having a 
certain value at the date of the loan. But there was 
no contract to return that value at the day of pay- 
ment. The contract was to return, on the day of pay- 



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OOITRT OF APPEALS OF VIRGINIA. 481 

ment, the same nominal sum in Confederate notes, let 1868. 
their value be what it might. Besides, it appears that Term. 
Bearing had no use for the money, and urged Ruekor ~ : ;" 
to take it as an accommodation to him. If Dearing, adm'x 
having no use for the money, had kept it by him, he Rucker. 
\vould have incurred the loss by depreciation, and also 
the loss of interest. Rucker was reluctant to take it, 
and only did so at last for the accommodation of Dear- 
ing, and at four per cent, interest, with an express stip- 
ulation that he should be allowed to pay it on the 1st 
day of January, 1863. Rucker evidently doubted his 
ability to make a profit on the money, and had little 
or nc use for it. It would be unreasonable to suppose, 
under these circumstances, that Dearing expected 
Rucker to assume the risk of the depreciation, or that 
Rucker intended to do so. As there had been, accord- 
ing to the table, but little depreciation in the value of 
the money since the beginning of the year, and none 
at all sincQ the month of April, it may have been that 
neither party contemplated that any material depre- 
ciation would occur before the first day of January, 
1863. 

It remains to refer briefly to the act of 1781 , already 
cited. I will not prolong this opinion by stating all 
its provisions, or by comparing them in detail with those 
of the act of March 3, 1866. A few remarks will 
suffice to show that the latter act departed from the 
former in some of its leading features, and that the 
Legislature, in making these departures, was governed 
by a clear and definite purpose. Thus the act of 1781 [450 
established an arbitrary scale for each month, from 
January, 1777, to December, 1781, inclusive. The 
act of March, 1866, establishes no arbitrary scale, but 
leaves the value to be ascertained by the jury. The 
history of the act of March, 1866, is this : It was first 
Vol. xviir — 61 



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482 COUBT OF APPEALS OF VIRGINIA. 

1868. reported to the House of Delegates with an arbitrary 
Term, scale, not based on gold, for each month from Janu- 

r~: r ary, 1862„to March, 1865, inculsive. This was struck 
adm'x out, and another scale substituted, by a close vote. 

RudJer. This latter scale put the value of the notes at consider- 
ably less than the other, and was doubtless based cm 
gold. The bill passed the House in this form. The 
Senate a^ked a committee of conference, which recom- 
mended that the scale should be struck out entirdy. 
Their recommendation was adopted, and the bill p&jsed 
into a law without any sc^e at all. TFrom inadvert- 
ance, probably, the preamble was retained as originally 
reported, when the bill proviaed an arbitrary scale for 
each successive month. 

It is impossible to misunderstand the view which 
thus finally prevailed. An arbitrary scale was incoa- 
sistent with the only just object of the law, which wai 
merely to provide means for enforcing, justly and 
effectually, this class of contracts, according to d» 
rights of the parties, without usurping the funetiott 
of the courts and juries, by determining in advance 
the extent of those rights in any particular. The a0( 
of 1781 assumed, as a general rule, that the scale 
ought to be applied at the date of the contract, aal 
so provided. This act was described by Chief Josdoe 
Marshall, in Few v. Marsteller^ 2 Cranch R. 10, (27,) 
as * interfering with contracts, and ascertaining their 
value by a rule different from that adopted by tht 
parties themselves." The Court of Appeals admittol 
the scale to be unjust as to some of the periods, {Wm 
cfe aU, V. SutherlamV % ex^ OT^ 1 Wash. 133,) butitsa 

451] tained it as '*a law dictated by imperious State H 
cessity, and even by justice, its object being to give* 
creditors the real value of their nominal contracL^ 
Commonwealth v. Beaumarchais^ 3 Call 127. TheM 



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COURT OF APPEALS OF VIRGINIA. 483 

of March 3, 1866, avoided the objections that were 1868. 

made against the act of 1731, by leaving both the xem. 
^alue of the notes and the time of valuation to be de- 



Dearing's 
termined in each case by the proper legal tribunals, adm'x 

according to the rights of the parties under the gen- Rucker. 
eral rules of law. 

In consequence of the manifest injustice of applying 
an arbitrary scale in all cases, the fifth section of the 
act of 1781 gave the court autuority to depart from 
it, undei circumstances which, in its opinion, would 
render its application unjust. It was held that this 
provision was designed to meet the real contract where 
the parties, by their contract, contemplated a diflfei- 
ent rate of depreciation from that fixed by the act. 
The circumstances must be such as arise in the contract 
sued upcn, showing that the parties, at the time, con- 
tracted on the idea of no depreciation at all, or of one 
diifefent from that fixed by the act, and the scale 
would not be departed from except in a strong case. 
Begle deals, v. Vowles^ 1 Call 244; Comiaonwealthv, 
BeauDiarchais^ 3 Call 122. In other words, the act as- 
sumed, as a genreal rule, that the parties contracted 
with reference to the value of the money at the date 
of the contract, but if the contract itself showed that 
such was not the fact, the general rule might be de- 
parted from. A similar provision would not have 
been appropriate in the act of 1866. because that act 
prescribed no fixed scale, and laid down no rule as to 
the time of valuing the notes. But the same ends of 
justice were accomplished by leaving the time and the 
value to be determined in each case according to the 
real agreement of the parties. There was only this 
substantial difference, that under the act of 1781 the 
value at the date of the contract was assumed to be 
the proper one, unless it appeared that the parties ac- [452 



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484 CX)URT OF APPEALS OF VIRGINIA. 

1868. tually contracted with reference to a different one. 

Term! Under the act of 18G6, nothing is assumed, but the 

z; : — r leiral construction of the contract will fix the time of 
Deannp*8 ® * j-x» 

adm'x valuation unless it appears that the value of a different 

Rucker. ^i^® ^as really contemplated and agreed on by the 
parties ; in other words, that the risk of depreciation 
was to be borne in a different manner from that im- 
plied by law from the terms of the contract. 

There is a fundamental distinction between Conti- 
nental money and Confederate money, which will ac- 
count for the diversities between the act of 1781 and 
the act of 1866. The former was the lawful money 
of the country and a legal tender in payment of debts, 
until the act of December 24, 1781 (10 Hen. Stat, at 
Large 456,) by which it was called in, and declared 
to be no longer a legal tender. It had, therefore, a 
certain and uniform value attributed to it by law. 
Every contract for the payment of that money was a 
contract for value, and not a contract for quantity 
only. But as the value of the notes was always the 
same, in contemplation of law, the law considered that 
the payment of the same nominal sum called for by 
the contract was a payment of the same value, though 
the actual value of the notes may have been less at the 
time of payment than at the date of the contract. 
When the act establishing the scale of depreciation 
prodded a new mode of *^ settling and adjusting*' such 
contracts, justice required that their true character as 
contracts for value should be adhered to, and that the 
creditor should receive what the contract entitled him 
to, the value of the notes at the date of the contract. 
But as I have said before. Confederate notes were 
never lawful money, or a legal tender. They were 
never so decfared to be even by the laws of the Con- 
federate States. They were a substitute for monev, 



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COURT OF APPEALS OF VIRGINIA. 485 

like bank notes, and like them were only a commodity. 1868. 
A contract to pay Confederate notes, like a contract xem. 
to pay bank notes, was a contract for quantity, and r : r 
not for value, and entitled the creditor only to the adm'x 
^alue at the day of payment of the quantity of notes Rucker. 
called for by the contract. It was reasonable and [^^3 
just, apart from all questions of constitutional power, 
that the Legislature should conform to the true char- 
acter of the contract in providing the means of enforc- 
ing it. 

Upon the whole, I am of opinion that the judgment 
of the District Court should be reversed for the error in 
awarding a venire de novOy Dut with costs to the defen- 
dant in error as the party substantially prevailing, in- 
asmuch as there was no error in the principles laid 
down in the judgment of said District Court as appli- 
cable to the facts of the case, upon the supposition 
that the bond in the declaration mentioned was pay- 
able in Confederate treasury notes; that the judgment 
of the Circuit Court should be reversed, with costs to 
the plaintiff in error in the District Court, and judg- 
ment rendered in favor of the plaintiff in error here 
for the sum of $1,274.42, the value in gold, as of Jan- 
uary 1, 1863, of the amount in Confederate notes 
called for by the bona, with interest at four per cent, 
per annum from June 14, 1862, the date of the bond, 
subject to the credit of $400 paid, and his costs in the 
Circuit Court. 

MoNcuRE, P. I concur in the first opinion ex- 
pressed by the District Court, that the bond *'on 
which this action is founded ought to be regarded, 
for the purposes of this action, as a new transaction, 
unaffected by the previous dealings "between the 
parties; which had been fully closed and settled before 



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486 COURT OF APPEALS OF VIRGINIA. 

1868. the execution of said bond." Ko doubt a large por- 
Temi. *^^° ^^ ^^^ amount for which that bond \^ as given 
r~" — r was a specie debt, in payment of which specie might 
adm*x have been required ; and most of the balance of said 
Rucker. aniount was cash received of the decedent of the plain - 
4:54] tiff in error on the 13th of February, 1862, when a 
dollar in gold was worth only one dollar and twenty- 
five cents in Confederate notes. So that, on the 
14th day of June, 1862, when the bond was executed, 
the defendant in error was indebted to the decedent 
of the plaintiff in error in a much larger amount than 
$3,822.24, in Confederate notes, as of their value at 
the time, which was, in comparison with gold, in the 
proportion of one and a half to one. The said dece- 
dent was, therefore, not bound to receive the amount 
then due him in Confederate notes at their par value. 
Still he had a right to do so, and I think did do so. 
If he had merely taken the bond of the defendant in 
error, without more, it would probably not have been 
such a novation of the deht as to render it improper 
to look back to the period of its origin as the date at 
which its value was to be estimated. But he did 
something more. He nad a full settlement of his ac- 
count with the defendant in error, and received his 
check for the amount due. This was a payment in 
full of the amount, the defendant in error then having 
a greater amount to his credit in the bank on which 
the check was drawn. If the check had been presented 
at bank, it would have been paid in Confederate notes, 
which >vere then in general circulation as cuirency in 
the city of Lynchburg, where the defendant in error 
resided, and the settlement was made. It may fairly 
be presumed, that the decedent of the plaintiff in error 
knew, w^hen he received the check, that it would be 
paid in Confederate notes ; and in consenting to receive 



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COURT OF APPEALS OF VIRGINIA. 487 

it, he therefore consented to receive such notes at their 1868. 
then par value in payment of his debt. After the Tem. 
check had been accepted, and it seems after the defen- r : r 
dant in error had balanced the account on his books, adm'x 
the said decedent represented to him that he had no Rucker. 
use for the money, and that it would be an accommo- [^^5 
dation to him for the defendant in error to retain it; 
which at length the latter agreed, as an accommoda- 
tion to the former, to do; but upon condition that he 
should be allowed to pay it off on the 1st of January 
next following, and shoul^ pay interest at the rate of 
four per cent, per annurri only; and accordingly the 
bond MJas executed and delivered, and the check re- 
turned. I regard the substance of the transaction as 
a loan of the amount in Confederate notes upon the 
bond of the defendant in error. 

In regard to the second branch of the opinion of the 
District Court, I concur in it in some respects, but in 
others I do not. I concur in the latter part of it (and 
for reasons therein sufficiently set forth) which declares, 
that to the value which way be ascertained of the Con- 
federate notes due on said bond, nothing should be 
added on account of the present depreciation of paper 
money as compared with gold ; "the court can only 
render judgment for money generally, without desig- 
nating what is to be regarded as money and no ques- 
tion can arise as to the obligation on the part of the 
defendant in error (plamiiff^ in error here) to accept 
payment in United States treasury notes as being, un- 
der the act of Congress, the legal equivalent of coin, 
until such notes shall have been tendered in payment 
of said judgment, and refused and the effect of so add- 
ing to the money value of said notes a sum equal to 
the difference at the date of the judgment between 
coin and paper money, would be to make the debtor 



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488 COUET OF APPEALS OF VIRGINIA. 

1868. pay more or less than he ought to pay, in proportion 
Tem. ^ t^® rise or fall in value of paper money, with refer- 

^ : — ~ ence to coin, between the date of the judgment and 
adm'x the time of its payment." 

Rucker. In regard to the former part of the second branch of 
the said opinion, which declares, ''that if, according to 

456] the true intent of the parties to the said bend, the same 
was payable in Confederate States treasury notes, then, 
upon the facts agreed, the defendant in error is entitled 
to recover judgment in this action for the value of the 
amount of such Confederate notes, payable on said 
bond, scaled according to the value of said notes, with 
reference to gold, on the 1st day of January, 1863, the 
case agreed not furnishing the materials for applying 
any other scale, if any other ought to te applied in 
this or in any case, as to which the court expresses no 
opinion," there can be no doubt but that it was corn- 
petent for the parties to the bond to agree that it 
should be paid in Confederate notes at their par value 
at the time at which the bond should become payable. 
The obligee could take upon himself the risk of the 
depreciation of the notes between the date of the bond 
and the period of its maturity. But such a contract 
would be a contract of speculation and of hazard, 
which ought not to be presumed^ bnt ought to be 
proved expressly, or by strong implication. The facts 
agreed in this case show no such contract of speculation 
or hazard. If the decedent of the plaintiff in error, 
on the 14th of June, 1862, had sold goods to the de- 
fendant in error, on a credit until the 1st day of Jan- 
uary following, and intended to assume the risk of the 
depreciation of the currency in the meantime, he 
would of course have indemnified himself against such 
risk by the increased price of the goods. And an in- 
ference of such intention might have been drawn in 



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COURT OF APPEALS OF VIRGINIA. 48i> 

such a case from the amount of the price of the goods. 1868. 
Or if the bond in this case, though for money loaned, xem. 
had been expressly for the payment of the amount at ~ : r 
the maturity of the bond in Confederate notes^ (which adm'x 
were depreciating,) as of their value at that time, Rucker. 
strange and improvident as such a bargain would be, 
it would, nevertheless, be legal and binding. But this 
is a very different case from either of those suppi^sed. 
The bond was given here for the loan of Confederate [457 
money, which had just been received at par by the 
lender from the borrower, in payment of a debt, a 
large portion of which was a specie debt. The loan 
was at four ^r cent, interest, and the bond was for 
the payment of the amount loaned in numero^ without 
specifying that it was to be paid in Confederate notes 
or currency. 

The amount received from the lender by the bor- 
rower was the value of the amount in Confederate 
notes at the time of the loan^ and that was the just 
measure of the benefit derived from the loan. There 
is nothing in the case to indicate a contract of specu- 
lation or of hazard; but everything to indicate a con- 
tract to return a subject of the same value with that 
which had been loaned, with the reduced interest of 
four per cent, upon it. It may be said, that as the 
money loaned must be considtred to have been Con- 
federate money, which "^^as then the common, if not 
the only, currency of the country, the money men- 
tioned in the bond must be regarded as Confederate 
money, and the bond should therefore be read and 
construed as if it had expressly been for the payment 
of the amount in Confederate money. On the other 
hand, it may be said, that the contract, being ob- 
viously not one of h&zard, but a mere loan, in which 
it was contemplated that the same amount in value 
Vol. XVIII — 62 



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i90 COURT OF APPEALS OF VIRGINIA. 

1868. loaned should be returned with a reduced intererf 
Term, thereon, the bond should therefore be read and con- 

r — : ;" stiued as if it had expressly been for the payment o( 
adm'x the amount in Confederate notes, as of their valne at 

Rucker. ^^^ ^™® ^f ^^^ ^^^.n ; or for the payment of so much 
specie as would be equivalent to the amount of the bond 
in Confederate notes, as of their value at the time of 
the loan. It can make no difference that the plain- 
tiff's decedeut ''represented to the defendant that he 
had no use for the jnoney, and that it would be an ac- 
commodation to him for the defendant to retain it; 

458] which at length the defendant agreed, as an accom- 
modation to the plaintiff's decedent, to do; T)ut upon 
condition that he should be allowed to pay it off on 
the 1st of January next following, and should pay in- 
terest at the rate of four pe?* centximi per annum only/' 
Certainly it was not intended, by either party, that 
the money should be kept by the defendant witiionl 
being used, until the 1st of January following, and 
then returned. Had such been the intention of the 
parties, then of course the plaintiff's decedent wouH 
have been entitled only to the amount of the bond in 
Confederate notes at the time of its maturity, as ol 
their then value. But he certainly intended to mate 
no such improvident bargain. No man in his sensa 
would ever have thought of treasuring up a depreciat- 
ing currency. The plaintiff's decedent had no use fot 
the aoney, and rather than keep it idle and at his risk, 
would no doubt have loaned it to one who had u^ fof 
it, without any interest at all, and upon condition only 
that its value at the time of the loan should be !»• 
turned to him at the expiration of the credit. Lai 
than that would, to the same extent, have been a e«fr 
tain loss to him, which he coul<3 easily have avoideJ 
by buying gold, and keeping that instead of Confed- 



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COURT OF APPEALS OF VIRGINIA. 491 

eiate notes. The consideration stipulated for by the 1868. 
defendant for accommodating the pJaintifl's decedent xeTm. 
in retaining his monev was, the '^condition that her : - 
should be allowed to pay it off on the 1st of January adm'x 
next following, and should pay interest at the rate of RuJker. 
four per centuinper annum only. ' ' The defendant in- 
tended to use the money, or he would not have agreed 
to pay any interest for it. The presumption is, that 
he did use it, and that it was worth to him the full 
amount of its value at the time of tlie loan; and that 
amount, with interest at the rate of ioxxr per centum 
per annum from the date of the loan, seems to be the 
just measure of his liability to the plaintiff. 

This view would, I think, not only attain the justice [459 
of the case, but conform to the provisions and spirit of 
the act of Assembly passed I^larch 3, 1866, entitled 
''An act providing for the adjustment of liabilities 
arising under contracts and wills made between the 
1st day of January, 1862, and the 10th day of April, 
1865." Sess. Acts 1865-6, p. 184, ch. 71. The ex- 
traordinary and anomalous condition of things pro- 
jluced by the war occasioned the necessity of such an 
act, as is plainly shown by the preamble, which re- 
cites, that "Whereas, a depreciated currency, known 
as Confederate States treasury notes, constituted the 
only or principal currency in the greater part of this 
State during the late war : and whereas, the result of 
said war involved the total destruction of said cur- 
rency : and whereas, there are many contiacts which 
were made, or obligations which were incurred, before 
the termination of said war, predicated on said depre- 
ciated currency, still remaining wholly or partially un- 
adjusted, in respect to which great uncertainty exists, 
perplexing alike to debtor or creditor, as to the pres- 
ent measure of thei^ liabilities and rights respectively; 



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492 COURT OF APPEALS OF VIRGINIA. 

1868. and it thus appearing useful that some uniform and 
Term, equitable rule should be established for the adjustment 
of such mutual demands and liabilities : therefore;" 



Dearin^'s 

mim'x and then follow the provisions made on the subject by 
Rucker. ^^^ ^^^' The first and second sections are as follows : 



i'l 



*1. £e it enacted by the General Assembly^ That 
in any action or suit, or other proceeding for the en- 
forcement of any contract, express or implied, made 
and entered into between the 1st day of January, 
1862, and the 10th day of April, 1865, it shall be law- 
ful for either party to show, by parol or other rele- 
vant evidence, what was the true understanding and 
agreement of the parties, either expressed or to be im- 
plied, in respect to the kind of currency in which the 
460] same was to be fulfil lea or performed, or with refer- 
ence to which, as a standard of value, it was made 
and entered into; and in any action at law it shall 
not be necessary to plead the agreement specially in 
order to admit such evidence. 

**2. Whenever it shall appear that any such con- 
tract was, according to the true understanding and 
agreement of the parties, to be fulfilled or performed 
in Confederate States treasury notes, or was entered 
into with reference to such notes as a standard of 
value, the same shall be liquidated and settled by re- 
ducing the nominal amount due or payable under such 
contract, in Confederate States treasury notes, to its 
true value at the time they were respectively made 
and entered into, or at such other time as may to the 
court seem right in the particular case; and upon the 
payment of the value so ascertained, the party bound 
by such contract shall be forever discharged of and 
from the same: i^rovided^ that in all cases where ac- 
tual payment has been made of any sum of such Con- 
federate States treasury notes, either in full or in part 



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COURT OF APPEALS OF VIRGINIA. 493 

of the amount payable under such contract, the party 1868. 
by or for Tvhom the same was paid, shall have full xerm. 
credit for the nominal amount so paid, and such pay- j^~j^^ 
ment shall not be reduced." adm'x 

The only other sections which need be noticed is Rucker. 
the fourth, which is as follows: 

**4. In any case wherein it shall appear, that on 
any contract made, or liability incurred, on or after 
the 1st day of January, 1862, and before the 10th 
day of April, 1865, the debtor, on or after the matu- 
rity of the claim against him, and within the period 
above mentioned, made to the creditor, his agent or 
attorney at law, a hmia fide and actual tender of the 
amount due in the said Confederate States treasury 
notes, or other equal or better currency, and that the 
creditor then refused to accept the same, a court of 
equity may grant relief to the debtor, unless it appear [461 
that the creditor was justified in refusing to accept 
the amount tendered, in consequence of a substantial 
and decided depreciation of said currency after the 
time at which payment ought to have been made, and 
before the time at which the tender was made, or un- 
less it otherwise appear to be inequitable to grant such 
relief." 

The first section provides, that in a proceeding fcr 
the enforcement of a contract made between the 
periods therein mentioned, either party may show 
what was the true understanding of the parties in re- 
spect to the kind of currency in which the same was 
to be performed, or with reference t*^ which, as a 
standard of value, it was made. Confederate notes 
being the principal, if not the only, currenc}'' of the 
country during the period afoieshid, it is fair to pre- 
sume, in the absence of evidence to the contrary, that 
any contract made during that period was intended 



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494 COUKT OF APPEALS OF VIRGINIA. 

1868. to be performed in that kind of currency, or was made 
Term. '^^^^^ reference thereto as a standard of value. 

r — : — 7 Tte secord section provides, that any such contract, 
adm'x intended to be performed in that kind of currency, or 

Rucker. Diade with reference thereto as a standard of \alue, 
shall be liquidated and settled by reducing the nomi- 
nal amount due under such contract, in Confederate 
notes, to its true value at the time the contract was 
made, or at such other time as may to the court seem 
right in the particular case; and upon the payment of 
the value so ascertained, the party bound by such 
contract shall he forever discharged from the same. 
The court is thus authorized to do justice between the 
parties in this matter, according to the circumstances of 
each particular case. Where a contract was made on 
the 14th of June, 1862, for the loan of Confederate 
States treasury notes until the 1st day of January fol- 
lowing, such notes being a continually depreciating 
currency, tne date of the contract, and not the time of 
its maturity, is the period in reference to which the 

462] value of such notes should be ascertained, in order to 
do justice between the parties in a proceeding insti- 
tuted upon such contract. Of course the creditor 
miglit have received Confederate money at par in pay- 
ment of the debt ; and if he received it without objec- 
tion on account of the debt, the presumption is that 
he received it at par. The proviso to the second sec- 
tion, therefore, properly declares, ''that in all cases 
wheie actual payment has been made of any sum 
of such Confedeiate States treasuiy notes either in 
full or in part of the amount payable under such con- 
tract, the party by or for whom the same was paid 
shall have full credit for the nominal amount so paid, 
and such payment shall not be reduced." 

The fourth section provides, that in any case of a 



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COURT OF APPEALS OF VIRGINIA. 496 

contract made, or liability incurred, between the 1868. 
periods aforesaid, and of a tender and refusal of the xerm. 
amount due in Confederate States treasurj^ notes, or ~ : r 
other equal or better currency, on or after the matu- adm'x 
rity of the claim, and within the said period, a court Rucker. 
of equity may grant relief to the debtor, unless it ap- 
pear that the creditor was justified in refusing to ac- 
cept the amount tendered, in consequence of a sub- 
stantial and decided deprciciation of such currency 
after the time at which payment ought to have been 
made, and before the time at which the tender "vas 
made, or unless it otherwise appear that it would be in- 
equitable to grant such relief. This section might seem, 
at first glance, to admit the right of a debtor in such 
case, as a general rule, to make payment in such notes 
at their par value at the maturity of the claim. But 
this would, I think, be inconsistent with the second sec- 
tion, which seems to fix upon the period when the 
contract was made as that at which, as a general rule, 
the value of such notes were to be ascertained in de- 
termining the amount to be paid by the debtor. At 
all events, the conclusion of the fourth section shows, 
that the court must determine on all the circumstances [463 
of the case, whether it would be equitable to grant 
the relief which the section contemplates. 

The first and second sections of the act of March 
3d, 1866, were amended by an act passed February, 
28, 1867. Seas. Acts 1866-7, p. 694, ch. 270. The 
only amendment which it is necessary to notice is, a 
proviso added to the first section, ''that when the 
cause of action grows out of a sale, or renting or hir- 
ing of property, whether real cr personal, if the court, 
or (where it is a jury case,) the jury think that, under 
all the circumstances, the fair value of the property 
sold, or the fair rent or hire of it, would be the most 



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496 COURT OP APPEALS OF VIRGINIA. 

1868. just measure of recovery in the action, either of these 
Te?m. principles may be adopted as the measure of the le- 

r : — - covery instead of the express terms of the contract/' 
adm'x This amendment serves still further to show that the 

Rucker. Legislature, in providing a measure of relief on con- 
tracts made during the latter years of the war, hav- 
ing reference to the then depreciating currency as a 
standard of value, sought to do justice bet\^eenthe 
parties under all the circumstances of each case. 

The state of things which existed in regard to the 
currency during the late war, and the consequent leg- 
islation before referred to, are very similar to the 
state of things which existed on the same subject dur- 
ing the revolutionary war, and the legislation \^hich 
it occasioned. The currency of the State commenced 
depreciating as early as January, 1777, when it stood 
at the rate of 1|^ to 1, compared with silver and gold, 
and continued to depreciate, gradually at first, and 
then more rapidly, until December, 1781, when it 
stood at the rate of l,00u to 1, and ceased to be a 
currency ! In November, 1781, an act was passed, 
entitled '*An act directing the mode of adjusting and 
settling the payment of certain debts and contracts, 
and for other purposes." The act was manifestly 
and naturally the model of our act of March 3, 1866, 

464] before referred to, and is, substantially, like it in most 
respects, both of tbem having been occasioned by a 
similar state of things. When the Legislature, in 
March, 1806, undertook to legislate on the subject, it 
was proper that they should look, and they did look, 
for their guidance and direction, to the legislation on 
the same subject which followed the revolutionary 
war. Hence the act of Xovember, 1781, and the de- 
cisions of the Court of Appeals thereon, have an im- 
portant bearing in the construction of the act of March 



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COURT OF APPEALS OF VIBGINIA. 497 

3, 1866, and upon the decision of this case. The first 1868. 
section of the act of November, 1781, is its preamble, Tem. 
setting forth the causes which led to its passage. The ~ — : — r 
second section recites, that '*the good people of the adm'x 
State will labor under many inconveniences for want Rucker. 
of some rule whereby to settle and adjust the payment 
of debts and contracts entered into and made between 
the 1st of January, 1777, and the 1st of January, 
1782, unless some rule shall be by law established for 
liquidating and adjusting the same, so as to do justice 
as well to the debtors as creditors;" and then pro- 
ceeds to enact, that *'all debts and contracts entered 
into or made in the current money of this State, or 
of the United States, excepting at all times contracts 
entered into for gold and silver coin, tobacco or any 
other specific property, within the period aforesaid, 
now remaining due and unfulfilled, or which may be- 
come due at any future day or days; for the payment 
of any sum or sums of money, shall be liquidated, set- 
tled and adjusted agreeable to a s6ale of depreciation 
hereinafter mentioned and contained; that is to say, 
by reducing the amount of all such debts and con- 
tracts to the true value in specie at the days or times 
the same were incurred or entered into ; and upon pay- 
ment," &c., the debtors shall be forever discharged, 
&c. And then follows b, proviso^ that actual pay- 
ments in paper currency, in whole or in part, shall 
stand good for the nominal amount. Note here the 
resemblance between this section and the second sec- [465 
tion of the act of March, 1866. Both of them fix 
upon the time at which the contract was made as the 
time at which the value of the depreciated currency 
is to be ascertained; but in the latter these words 
are added, which are not in the former: *'or at such 
other time as may to the court seem right in the par- 
VoL. XVIII — 63 



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408 COURT OF APPEALS OF VIRGINIA. 

1868. ticular case." The substance of these additional 

Term, words, however, is embodied in the fifth section of 

— ^ — : — T the act of 1781, and the two acts may be regarded as 
Deanng'e ' ' f* 

adm'x substantially the same in this respect. The fourth 

Rucker. section of the act of 1781 adopts a scale of deprecia- 
tion including every month from January, 1777, to 
December, 1781, inclusive, as the rule to determine 
the value of the several debts, &c., compared with 
silver and gold. The fifth section of the act of 17S1 
provides, that where circumstances arise which would 
render a determination agreeable to the above table 
unjust, the court may award such judgment as i/) ihefn 
shall appear jxist and equitable. 

Upon the construction of the act of 1781 there have 
been several decisions of the Court of Appeals, some 
of which only will be noticed. 

In PleasanU v. Bihh^ 1 Wash. 8, the bond on which 
the action was brought was dated the 1st of February, 
1780*, payable on or before the 17th of December, 
1781, and to carry interest from the 16th of February, 
1779. The court held that these latter words, with 
other circumstances in the case, fixed the latter as the 
period at which the scale of depreciation ought to be 
applied, being the period at which the debt aiose, 
though not reduced to a specialty u