November

Howe,

V.

Ould &

Robins

V.

Same.

1876. much we may differ upon this point, we are all agreed Term. that if they occupy that position they are entitled to the note as against the lien of the attachment. By Knox & Co the law of the instrument, by the terms of the contract, the person in possession of the note at the time of Carrington its maturity, is entitled to the payment. This is the Bartlett & obligation of the maker. This he is bound to do, and he is not required to do more. The suing out and service of an attachment cannot change these results. Another interesting and important question was discussed at the bar with much learning and ability; and that is, whether a negotiable note, whilst it is still current, is properly the subject of levy by attachment at all. It is unnecessary to express any opinion upon this question. If we should hold that it is not, such a decision would of course be fatal to the pretension of the attaching creditors. If we should hold, on the other hand, that such a note may be the subject of attachment and process of garnishment, the result would be the same, inasmuch as Ould & Carrington being endorsees for value had title paramount to that acquired by the levy.

This case is substantially the same as the preceding one. Here the attachment was issued on the 30th May 1866, and served on Myers on the 31st of that month, but it was never served on the bank. The second attachment was issued on the 13th of June 1866, and served on the bank on the same day, but never served on Myers. If the plaintiffs rely upon the first attachment, they occupy the precise position of the creditors in the preceding case. If they rely on

1876.

November

v.

the second, both attachment and levy are subsequent to the transfer to Ould & Carrington, and of course Term. confer no lien or title. If we consider both attachHowe, ments together, and give the plaintiffs the benefit of Knox&Co the levy on the bank, it was after the purchase by Ould Ould & & Carrington, and of course could not affect any rights Carrington previously acquired. Whether service on the bank Bartlett & before the transfer would have had such effect, it is unnecessary now to inquire. I think this case must take the same course as the other.

JUDGMENTS AFFIRMED.

Robins

V. Same.

1877. January Term.

Richmond.

FAIRFAX v. CITY OF ALEXANDRIA.

January 11.

1. In a proceeding to confiscate property of a person charged to be in rebellion, the directions of the attorney general are, that the method of seizure of the property shall be conformed as nearly as may be to the state law, if there be such. When therefore the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the Virginia statute; and notice given to the auditor of the corporation is of no effect; and the judgment based upon such notice is null and void.

2. On such a proceeding against F, the counsel of F does not enter an appearance for him, because in three cases against the same party, before the same judge, he was informed by the judge from the bench, that it was the rule of his court not to allow an appearance and defence by rebels and traitors; and in these cases the appearance and defence were stricken from the cases; and this a short time before the last case was acted on. The counsel was not in default for failing to enter an appearance for F; and the decree of confiscation is void and of no effect.

This is a writ of error to a judgment of the circuit court for the city of Alexandria, rendered on the 25th day of May 1875, in an action of covenant, wherein the plaintiff in error, Orlando Fairfax, was plaintiff, and the defendant in error, The City Council of Alexandria, was defendant.

The action was brought upon four bonds of the said corporation, amounting together to the principal sum of $8,700, which bore interest at the rate of six per centum per annum, payable half yearly, of which principal the sum of $3,500 was redeemable

Fairfax

V.

Alexan❜ria

on the 10th day of July 1861, and the residue, 1877. January $5,200, was redeemable on the 1st day of Janu- Term. ary 1870. The only issues joined in the case were upon the pleas of "covenants performed" and "covenants not broken," to which the plaintiff replied City of generally; and the parties waiving a trial by jury of the issues joined, and submitting the cause to the determination of the court upon a statement of agreed facts filed and made a part of the record in the cause, and the matters of law arising thereon being argued, it seemed to the court, upon the whole matter therein contained, that the law was for the defendant, and judgment was rendered accordingly.

The defence to the action was, that the said bonds, or the principal and interest of the debt due thereon, were confiscated under the act of congress of July 17, 1862, by the sentence of the district court of the United States for the eastern district of Virginia.

The agreed statement of facts is substantially as follows:

In February 1864, Dr. Orlando Fairfax, the plaintiff in this suit, was residing in Richmond, Virginia, the capital of the Confederacy, and had been living there since the commencement of the war, having, up to said commencement, been a citizen and resident of the city of Alexandria, Virginia. He lived in Richmond till the close of the war, and whilst thus in Richmond, continuously during the period mentioned within the Confederate lines he held four bonds, or evidences of indebtedness of the city of Alexandria, one for $2,000, one for $500, one for $1,000, and one for $5,200, all bearing interest at the rate of six per centum per annum on their face, the three first being due and payable on July 10th, 1861, the last one ($5,200) being due and payable January 1, 1870.

VOL. XXVIII-3

Fairfax

V.

1877. At no time during the war were these bonds or eviJanuary Term. dences of indebtedness out of the personal possession and custody of Orlando Fairfax, the plaintiff in this cause in the city of Richmond, Virginia. The bonds City of aforesaid, in the declaration mentioned, were in the words and figures following: (A copy of the bonds and endorsements is set out in the record as part of the facts agreed; but it is unnecessary to set out the same here.)

Alexan'ria

Three of which bonds had been regularly and properly assigned and transferred to Dr. Orlando Fairfax, the plaintiff in this cause, on the books of the corporation for value, and had passed into his possession and ownership on the 23d day of November 1858, and the fourth one for $5,200, due January 1st, 1870, and bearing interest from July 1st, 1858, and numbered 35, was made and executed and delivered to him in his own name by the defendant for value received.

That, on the 30th day of November 1866, the said plaintiff served a notice on the auditor of the said defendant, who was authorized as agent of the said defendant to pay the interest on said bonds whenever it fell due, not to pay any interest which should thereafter accrue to any but himself or his authorized attorney. That prior to the commencement of this suit, and subsequent to January 1st, 1870, the plaintiff by his authorized attorney and agent, John Johns, jr., repeatedly demanded of the defendant the payment of the principal of said bonds, and the accrued interest thereon, and payment of the same was refused by defendant, and the said amounts have never been paid to the plaintiff.

That, on the 25th day of July 1865, the plaintiff received and accepted the pardon of the president of the