generally followed by the courts of last resort in the several states in like cases, and by none more uniformly and implicitly than by this court. Griffin's ex'or v. Cunningham, 20 Gratt. 31; Homestead Cases, 22 Gratt. 266. 1877. March Term. Roberts' adm'r V. Cocke &c. Murphy V. adm'r. The question, says the chief justice, whether a law be void for its repugnancy to the constitution, is at all times a question of much delicacy, which ought sel- Gaskins' dom if ever to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other. The act, the validity of which is drawn in question in these cases, was approved April 2, 1873, and is entitled "An act to amend and reenact section 14, of chapter 187, of the Code of 1860, in relation to interest." The section, as thus amended and reenacted, constitutes the 14th section of chapter 173 of the Code of 1873, p. 1120. The amendment, in substance, empowers the courts and juries in all suits for the recovery of money founded on contracts, express or implied, or on causes of action, or on liabilities which were entered into or existed, or where the original consideration accrued prior to the 10th day of April 1865, to remit the interest upon the original debts found to be due, or any part thereof, for the period between the 17th day of VOL. XXVIII-27 March Term. Roberts' 1877 April 1861, and the 10th day of April 1865, or for any portion of said period. It further empowers the court, in which any judgment or decree has been rendered adm'r prior to the passage of the act, on motion of the defendant, upon ten days' notice to the plaintiff, to review such judgment or decree, and abate the same to Murphy the extent of the interest for the period aforesaid. V. Cocke &c. V. Gaskins' adm'r. In the first of the cases now under review here, the plaintiff brought an action of debt in the court below upon a bond, which was in these words: "$762. Nine months after date, for value rec'd, we, the undersigned, promise to pay to C. M. Roberts, or order, seven hundred and sixty-two dollars, with int. from date. Witness our hands and seals this 12th day of Decem'r, 1860. (Security) [Seal.] WILLIAM COCKE, The defendants appeared and filed three pleas: 1st. payment; 2d, a plea averring that the bond sued on was entered into prior to the 10th day of April 1865, and praying judgment that the interest on the bond from the 17th day of April 1861, till the 10th of April 1865, be remitted in accordance with the act aforesaid; and 3d, a plea of the like tenor and with the like prayer as the 2d, with the further averment that "the confusion of the business relations of the country incident upon the secession of the State of Virginia from the United States, and the war consequent thereupon between the Confederate States and the United States was so great and disorganizing that the principal money in said writing obligatory specified was not worth any interest between the periods afore said to the defendants, who were citizens of the county 1877. March of Fauquier, which was occupied from time to time by Term. the Federal troops." The plaintiff took issue on the plea of payment and demurred severally to the other two pleas. The demurrers were overruled, and, neither party demanding a jury, the whole matter of law and fact was submitted to the court; and the bond sued on being given in evidence, and that being all the evidence,. the court gave judgment for the plaintiff for the principal sum specified in the bond, with interest from the time it became payable until the 17th day of April 1861, and from the 10th day of April 1865 until payment, and for costs, expressly remitting the interest between the dates aforesaid. In the second case the plaintiff, Frances A. Murphy, in the year 1869, brought an action of covenant in the circuit court of Fauquier county, upon an instrument under seal and of the tenor following: "Received, Nov'r 26th, 1860, of Frances A. Murphy, five hundred dollars, to bear interest from date. I also agree to and put a negro boy, Abraham, in pond (meaning in pawn) to secure the payment of the same. Whenever the five hundred dollars is paid to Mrs. Murphy, with legal interest, the said boy no longer belongs to the said Mrs. Murphy, but the title returns back to me. Given under my hand and seal this the 26th day of November, 1860. JOHN GASKINS, [Seal.]" The defendant pleaded to this action "covenants performed" and "covenants not broken;" upon which pleas issues were made up, and neither party demand Roberts' adm'r V. Cocke &c. Murphy V. Gaskins' adm'r. March 1877 ing a jury, the issues were tried by the court on the Term. 4th day of April 1872, and judgment was rendered for the plaintiff for the $500 in the covenant specified, with interest from the date thereof, and for costs. Roberts' adm'r V. Cocke &c. Murphy V. Gaskins' adm'r. On the 12th day of April, 1873, the personal representative of John Gaskins (the defendant in error here) pursuant to notice, made a motion in the circuit court of Fauquier county for a review of the judgment aforesaid, and an abatement of the interest included therein between the 19th day of April, 1861, and the 10th day of April, 1865; and the court rendered judgment accordingly, abating said interest. Upon the hearing of the motion the only evidence adduced was the record of the first judgment, including the covenant on which it was rendered. We will examine the case of Roberts' adm'r v. Cocke fc., first, and when we have disposed of that, we shall have but little to say of the other case. If during the late war between the United States and the Confederate States, the defendants Cocke and Carter had resided within the territory under the dominion of one of the belligerent powers, and their creditor had resided in the territory of the other of said powers, they would have been entitled, independently of the statute in question, to an abatement of the interest during the time the war lasted. Such is the rule of the public law applicable to a war between independent nations, and at an early period after the termination of the late war between the states, it was applied by the courts to that war. It was so applied in 1866 by the district court of appeals of Virginia for the first judicial district. See the opinion of the court delivered by Judge Joynes in Tucker v. Watson, McGill & Co., 6 Amer. Law Register, (N. S.) 220; citing among other authorities Mc Call v. Turner, 1 Call 133, and Brewer v. Hastie & Co., 3 Call 22; and this court recognized the same rule in the case of Mc Veigh v. The Bank of the Old Dominion, 26 Gratt. 188. 1877. March Term. Roberts' V. The supreme court of the United States, although adm'r at first hesitating as to this application of the rule, Cocke &c. (Ward v. Smith, 7 Wall. U. S. R. 447,) finally sanctioned it by their decision in Brown v. Hiatts, 15 Wall. U. S. R. 177. If, therefore, Cocke and Carter (the defendants in error) had been alien enemies in respect of their creditor, they would have been entitled to an abatement of the interest on their debt for the period covered by the war, and might have made their defence, certainly under a special plea, and perhaps under the plea of payment, as was allowed to be done in McCall v. Turner, supra. But as no such defence was made, it is to be presumed, if indeed it may not be inferred from the record, that the facts did not warrant the defence. The averment, which seems to be the gist of the third plea, that the principal money "was not worth any interest to the defendants" during the war, was no bar to the plaintiffs' right to recover. The defendants by their bond had expressly stipulated for continuing interest on the debt without any exception of the period during time of war, should one occur, and the law as the general rule, makes no such exception where the contracting parties make none. It may be true, that the defendants derived no benefit from the use of the principal money during the war. This may have been their fault or their misfortune; but whether the one or the other, the contract was not affected by it. They were at liberty under the contract to discharge the obligation at any time by payment, according to its terms, of the principal sum and accrued Murphy V. Gaskins' adm'r. |