1880.

April

Term.

There is no other condition. To say that this deed imposes upon the bank the duty of giving notice to the first endorser for the benefit of the appellant is to insert stipulations not found in the instrument, and Cardwell which do not legitimately arise out of the transaction Allan, itself.

It would seem, however, that none of the parties looked to the first endorser. During the entire two years following the dishonor of the notes, no allusion was made to him. The appellant did not enquire whether he had notice, nor did he complain that the first endorser had been discharged by the laches of the bank. This may have been due to the fact that the first endorser was known to be insolvent; or it may have been that the appellant, by the execution of the trust deed, and by his arrangements with the maker, had made himself liable absolutely for the debt, and was so understood to be by all the parties. Whatever may have been the reasons, we think the appellant is not discharged by the failure of the bank to have the notes protested and to give notice of non-payment to either of the endorsers. We are therefore of opinion the decree of the circuit court is plainly right, and must be affirmed.

DECREE AFFIRMED.

V.

trustee,

& als.

1880. April Term.

Richmond.

WEBB V. CITY COUNCIL OF ALEXANDRIA.

April 15.

Absent Moncure, P.

F was the owner of $8,700 of the certificates of stock of the city of A, which by a decree of the United States court in May, 1864, were confiscated and sold by the marshal, and $2,000 of it purchased by W; and at his request the marshal made a transfer of the same on the books of the city. When the stock become due W received from the city of A four coupon bonds of $500 each in exchange for his stock. In 1874 F sued the city for his stock and recovered it, the court holding that the decree of the United States court confiscating it was invalid. The city of A then sued W to recover the four bonds issued to him for the stock. HELD: The city of A is entitled to recover the bonds.

This was a suit in equity in the corporation court of Norfolk, brought by The City Council of Alexandria against Lewis W. Webb, to compel the said Webb to return to the plaintiff four bonds each for $500, which had been issued by the plaintiff to Webb. There was a decree in favor of the plaintiff, and Webb obtained an appeal to this court. The case is fully stated in the opinion of the court delivered by Judge Christian.

Judge Burroughs, for the appellant.

Charles E. Stuart, for the appellee.

CHRISTIAN, J., delivered the opinion of the court.

This case is before us on appeal from a decree of the corporation court of the city of Norfolk. The case is a sequel to the suit of Fairfax against the City Council of Alexandria, reported in 28 Gratt. 16.

1880. April Term.

Webb

V.

City Council

The facts disclosed by the record, so far as they are necessary to be noticed in this opinion, are as follows: of Alex'a. Dr. Orlando Fairfax was the owner, prior to the 4th day of May, 1864, of certain registered bonds, or certificates of stock, issued by the city of Alexandria for the sum of $8,700.

On the 4th day of May, 1864, by a decree of the district court of the United States for the eastern district of Virginia, this stock or debt was confiscated and condemned, and a writ venditioni exponas was awarded by said court. At the sale made under that writ, the appellant became the purchaser of $2,000 of said stock, and on the 1st day of August, 1864, at his request, the United States marshal made a transfer of the same on the books of the appellee; and, thereupon, also at his request, two certificates of stock, of $1,000 each, were issued to the appellant.

By an act of the general assembly, approved February 14th, 1872, (see Acts of 1871–2, p. 73), the city of Alexandria was authorized to call in all the evidences of indebtedness of said city in the form of stocks, bonds and certificates theretofore issued, and to issue in their place a like amount of registered coupon bonds, bearing six per cent. interest, payable semiannually, the bonds payable thirty years after date, the coupons of which were declared to be receivable in payment of the city taxes and of any other indebtedness due to the said city.

When the certificates of stock, transferred to the appellant by order of the United States marshal under the proceedings of the confiscation sale in 1864, became due, he by letter and in person demanded their payVOL. XXXIII-22

April Term.

V.

ment, and threatened suit thereon unless payment was made.

He did not, however, institute his suit, but accepted Webb from the city council of Alexandria, in lieu of said City certificates of stock for $2,000, four coupon bonds for Council the sum of $500 each, issued under the aforesaid act, bearing date 1st of July, 1872, and payable thirty years after date.

of Alex'a.

At the time of the confiscation proceedings in the district court of the United States, the certificates of stock owned by Orlando Fairfax were in his possession, and in February, 1874, all of them having previously fallen due, he commenced suit thereon against the city of Alexandria. The circuit court of said city gave a judgment against Fairfax and in favor of the said city. On a writ of error to that judgment this court reversed the same, and rendered a judgment against said city of Alexandria and in favor of said Fairfax for the sum of $8,700 with interest and cost.

The case was then carried by writ of error to the supreme court of the United States, where the decision of this court was affirmed.

It is further shown by the record that immediately after the rendition of the judgment of this court the city council of Alexandria directed its officers not to transfer any bond held by the appellant, nor to pay, nor receive any of the interest coupons detached therefrom. And a few days after the decision of the supreme court of the United States affirming the judgment of this court, the city council of Alexandria filed their bill praying that the bonds and coupons held by the appellant and which represented the stock purchased by him at the "confiscation sale of Fairfax's property," might be delivered up for cancellation; and that the interest on said stock and bonds paid by the appellee to the appellant might be decreed to be paid

back; and that the defendant might be restrained by injunction from selling, hypothecating, or otherwise disposing of the bonds Nos. 209, 210, 211 and 212, or the coupons annexed thereto, or detached therefrom, these being the coupon bonds issued to the appellant in lieu of the certificates of stock purchased by him at the confiscation sale.

This bill was presented to the judge of the corporation court of the city of Norfolk, who awarded an injunction in accordance with the prayer of the bill.

Upon the hearing, the injunction was perpetuated, and a decree was entered ordering the bonds and coupons in the hands of the appellant to be delivered up and cancelled, and directing that the appellant pay to the appellee the sum of $540, with interest from the date of the institution of the suit, and costs.

From this decree an appeal was allowed by one of the judges of this court.

The court is of opinion there is no error in the decree of the said corporation court.

First. It has been definitely declared and established both by this court and the supreme court of the United States, that the decree of confiscation, entered by the district court of the United States, against Orlando Fairfax, directing a sale of the certificates of stock issued to him by the city of Alexandria was a mere nullity and absolutely void.

This court based its judgment on two grounds: First, that the district court had no jurisdiction of the case, for the reason that there was no proper seizure of the stock; and second, that by reason of a rule of that court denying to "traitors" and "rebels" (so-called by said court) the right to appear and make defence in such cases, Orlando Fairfax was in effect not a party to the proceedings.

1880. April Term.

Webb

V.

City

Council

'of Alex'a.