In October 1860, at the solicitation of Wall, J. B. Slusher paid him in advance, the sum of $500, for which Wall agreed to allow him a premium of 121⁄2 per cent.; and by his instructions a credit of $538.58, payment and premium, was endorsed by Hale on the bond first falling due, as of the 10th of April 1861, being the maturity thereof. This payment was made by deposit in the Branch of the Farmers' Bank of Virginia, at Blacksburg. No other payment was made until about the last of February or first of March 1862, when the sum of $811, being the balance then due on the first bond, was tendered and paid by Slusher to Hale in notes of solvent banks, the most of it in Virginia State bank notes. Prior to this time Hale had written to Wall, asking for definite instructions as to the mode of transmitting his money, when collected, but had received no reply, nor did he at any time thereafter, receive any instructions from him. Wishing to place the money in some secure place he deposited the entire amount collected, $811, to his own credit in the Bank of the Valley at Christiansburg, on the 28th of March 1862, and took from the teller a certificate of the deposit.

after his money, and Hale then tendered him the two certificates which he had taken and preserved as aforesaid, but Wall declined to receive them; and in January 1866, instituted his suit in the Circuit court of Montgomery county on the chancery side thereof, against Hale and Slusher, seeking to hold them responsible for the debt. The bill, after alleging that the bonds had merely been left in the custody of Hale, denied in the first place, his authority to collect, and Slusher's authority to pay the money. It charged, in the next place, that if such authority at any time existed, it was suspended by the war; and if not 429 suspended did not justify Hale in

receiving in discharge of the debt, the paper currency of Virginia. It alleged ignorance of what had been done and prayed a discovery.

There was an amended bill filed, which, after repeating the allegations of the original bill, charged among other things, that the deposits made by Hale as aforesaid, being made in his own name, amounted to a conversion and appropriation of the funds to his own use, and that he thereby became responsible for the full amount deposited, with interest.

Hale and Slusher severally answered the

substance the facts above detailed; and both affirming directly and unequivocally, that full authority was given to Hale by Wall to make the collections. This authority was, in addition to the sworn statements of the answers, abundantly proved by the testimony in the cause, and has been conceded at the bar.

The other bond fell due on the 10th of April 1862; and on the 3d of May thereafter, the full amount thereof, principal and in-original and amended bills, setting forth in terest, being the sum of $1,307.24, was also paid by said Slusher to Hale-about $520 of it in Confederate States treasury notes, and the residue in the notes of solvent bankschiefly notes of Virginia banks. On the same day-the 3d of May 1862-Hale deposited the notes thus received, $1,307.24, on special deposit in the Branch of the Farmers' Bank at Blacksburg, taking Upon the hearing of the cause, the Cir428 *from the cashier a certificate thereof.cuit court dismissed the bill as to Slusher, This deposit was to be returned to but held Hale responsible for the several Hale or his order on return of the certificate. amounts deposited by him as aforesaid, Both of these certificates were carefully with interest from the dates of the deposits, preserved by Hale for Wall, until the close and decreed accordingly. of the war between the United States and the Confederate States of America.

At the dates of the collections, it is well known to us as a matter of history, that the notes of the banks of Virginia and of other solvent banks, and Confederate States treasury notes were but little depreciated, not more perhaps, than the paper currency of the United States, if so much; that they then constituted the only currency in Virginia, and were universally paid out and received by the banks of the State, and by prudent men of business, in all their transactions.

Both of the banks in which Wall's funds were deposited, seem to have failed, and the deposits have thus been lost.

Hale is a plain man of but little culture, and, as charged by Wall in his bill, of weak and feeble intellect; and he acted in this matter wholly without compensation, merely to accommodate his friend and neighbor, Wall. He has not derived, and never expected to derive, the smallest personal advantage from the transactions.

After the close of the war, to-wit: in October 1865, Wall came to Virginia to look

From this decree both Hale and Wall have appealed to this court. Hale because he was held responsible for the deposits; Wall because the bill was dismissed as to Slusher. We will consider first the decree against Hale. Was it proper to hold him responsible for the sums of money deposited in the banks at Christiansburg and Blacksburg? It has not been contended before this court, and could not be successfully contended, that Hale was not the agent of Wall, duly authorized by him to collect the funds in question. That is conceded.

But it is insisted in support of the decree : 1. That the agency of Hale was not confined to the collection and preservation 430 of the fund, but that it extended *also to its transmission to Wall in Missouri; and as the war between the United and Confederate States put a stop to all communication between the citizens of the States of Virginia and Missouri, and rendered it unlawful, the right to transmit the funds became unlawful, and was suspended, and with it the right to collect was also suspended.

2. Conceding his authority to collect, Hale

had no authority to receive in discharge of the debt the depreciated paper currency of Virginia.

3. By depositing the funds in bank in his own name, and leaving them there without further attention, Hale had converted and appropriated them to his own use, and thereby became debtor to Wall for the entire

amount.

We will consider these propositions in their order.

1. Was the agency to collect the fund suspended by the war?

The Supreme court of the United States in the case of Ward v. Smith, 7 Wall. U. S. R. 447 (cited by appellee's counsel for another purpose), affirm the same principle. Speaking of a like case, they say, p. 452: "When an agent appointed to receive money resides in the same jurisdiction with the debtor, the latter cannot justify his refusal to pay the demand, and of course the interest which it bears. It does not follow that the agent, if he receive the money, will violate the law by remitting it to his alien principal."

of the debt?

That an alien enemy may keep an agent But it is wholly unnecessary to multiply in the enemy's country during the existence authorities on the question. We are of of war, with full power to collect money opinion that the right and duty of Hale to and preserve property, is a proposition too collect of Slusher the debt in question, well established to require citation of au- 432 *and the right and duty of Slusher to thority. The question has very recently pay, were not impaired by the war. undergone a careful examination by this court, and the proposition was affirmed by the paper currency of Virginia in discharge 2. Had Hale, as agent, the right to receive all the judges, that whilst the authority of an agent to transmit money to his principal would be suspended by war, because such It will be remembered that when the debt transmission would involve direct inter- was contracted, both debtor and creditor course with the enemy, which is unlawful; were citizens and residents of Virginia; the authority to collect and preserve remains that the contract was made in Virginia; unimpaired; and the debtor cannot, in such that when the creditor left the State he apcase, lawfully refuse to pay to the agent, pointed, as his agent to collect the debt, a nor the agent refuse to receive payment. citizen and resident of Virginia, with whom Manhattan Life Insurance Company v. he left the bonds, and that both agent and Warwick, 20 Gratt. 614, p. 635 to 638, and debtor continued to reside in Virginia. As cases there cited by Judge Anderson, deliv- a matter of course, all parties expected the ering the opinion of the court. Two of the debt to be paid in Virginia currency, unless judges, it is true, dissented on the merits-that currency should become so depreciated Judges Christian and Moncure-but both of as to render its reception an act of obvious them concurred with the majority, in impropriety. Such certainly was not the affirming the principle above stated. Judge Christian, with whom Judge Moncure concurred, speaking *at page 653 of the cases on this subject, says: "These cases decide that it is lawful for an alien enemy to keep an agent in the enemy's country to receive money or to take care of his property during war.

431

The case furnishes a complete answer to the argument of the learned counsel for the appellee on this question. That argument was, that it was the duty of Hale in this case not merely to collect the fund, but also to transmit it to Wall in Missouri; that the right to transmit was clearly suspended by the war; and as the authority to collect was conferred for the purpose-and only for the purpose of transmitting the fund, when the latter right fell the former necessarily fell with it. The view is plausible, but is completely answered by the case of the Manhattan Life Insurance Company v. Warwick. In that case it was the duty of the Virginia agent of the New York company to collect the premiums due the company in Virginia; but it was essentially his duty also to transmit those premiums to his principal in New York. This court held, that whilst the war necessarily suspended the right to transmit the premiums to New York, the right of the agent to collect them was not only not suspended, but that it was his imperative duty to receive those premiums if tendered at the proper

time.

case when the payments in question were made. The currency received by Hale was the very same which we know, as matter of history, was everywhere received and paid out at that time by business men of the State, and which they were always glad to receive. It was, in fact, but little depreciated at that time--not more than the paper currency of the United States, if so much. It was, in fact, substantially the same kind of money which Wall himself had been glad to receive of Slusher in October 1860. Slusher's payment was made by a deposit in the branch bank at Blacksburg, and was, therefore, in effect, a payment in bank paper, and in paper of the same bank in which Hale made his special deposit of $1,307.24. Collecting them as Hale did--a Virginia debt from a Virginia debtor-in funds everywhere in the State received and paid out as money; charging not even the smallest commission for his services and his risk; making no use whatever of the fund, but depositing it at once in bank, to remain, as he supposed, secure and intact for his friend, and utterly ignorant, as he appears to have been, that there was other

433

security for the debt than the single obligation of *the debtor; it would be unkind and unreasonable, to the last degree, to impute bad faith or breach of trust to this illiterate and feeble-minded old man: and without such imputation, having full power to collect as he did, his act cannot be impeached. Myers, &c., v.

Zetelle, 21 Gratt. 733, and cases cited by responsible. Banks have always been reJudge Christian.

garded by the courts in Virginia as the But this court has recently decided the safest places of deposit for money. The precise question in the case of Pidgeon v. funds of married women, infants, lunatics Williams, 21 Gratt. 251. That was a case and suitors of every character, are there in which the professional firm of Barton & deposited under orders of court; and in the Williams, lawyers, of Winchester, Virginia, case just cited of Pidgeon v. Williams, the had been employed in 1860, or early in 1861, court held that it was a proper and the best to collect an old debt for a client who was place, even during the war and on the borsometimes in Virginia and sometimes in der; and that the deposit was good, alMaryland. On the 21st of February 1862, though not in the name of the client. Had just about the date of Hale's first collection, the deposits been made in the name of Wall, they collected for their client, in Confederate or in the name of Hale for Wall, there could States treasury notes, $1,028.50; and on the not be a question about them. But it is same day they deposited in bank to the said, and truly said, that they were credit of their own "collection account,' 435 not so *made, but in the name of Hale. not the full amount collected, as Hale did, They do not appear, however, to have but the sum of $932.95, being net amount been mixed with any money of his own; after deducting fee and commissions. They nor does it appear that he kept a bank achad not seen their client for a long time, count at all. But it does appear that he did did not write to him, and the sum remained what is rarely done, except when a person in bank uncalled for until the close of the is depositing money for another-he took war, and was lost like that in controversy formal certificates for both deposits, and in this case-not by the negligence or mis- kept them until the war was over, and then conduct of the agents, but by the disastrous tendered them to Wall. The court is well results of the war. Williams, the surviving satisfied that he did not use the money in partner, was sued for the amount of the any manner or for any purpose, and it was deposit in January 1866, as Hale was, and not lost by reason of being deposited in a verdict and judgment was rendered for bank in his own name. Precisely the same the defendant. This judgment was ap- result would have followed had the deposit proved and affirmed on appeal to this court. been made in the name of Wall himself. It The court say, p. 254: "And first as to re- was the result of an overwhelming disaster, ceiving Confederate money. The proof is, which involved not only individuals, but that at the time the money was received, communities and States, in a common ruin. Confederate treasury notes were worth only In the expressive language of Judge Christen per cent. less than gold, including ex- tian, in Davis' commissioner v. Harman, change; that it was almost the only cur- &c., 21 Gratt., 194, p. 203: "It was not the rency of the country, as good as any, and failing of a bank, or the insolvency of a better than greenbacks, and that it was banker, but it was the sudden and irretrievreceived and paid out by the banks, able destruction of the whole currency of a 434 and *was the currency generally, if country by the termination of a civil war, not universally, used in all the trans- which had destroyed the very power that actions of life; that gold had ceased to be created it." And we approve and adopt the a currency, and was sold as a commodity, concluding paragraph of the opinion in that and that the attorneys could not have col-case as strikingly apposite to the case belected the debt at all, if they had refused fore us: to receive Confederate currency. The claim "It would be too rigorous and unjust; it had been placed in their hands for collection, would be in violation of those well settled and it was their duty to collect it. They principles, founded in reason and conhad not been instructed by their client not science, which control the action of courts to receive payment in Confederate currency; of equity, to hold that though the appellant and we are of opinion that it would be un- has been guilty of no mala fides, no misreasonable to hold them responsible, under conduct, no negligence, yet he is to be held the circumstances, for having done so. responsible for a loss which he had no part Every word in this extract applies "a for-in creating and no power to prevent. But tiori" to the case before us. If it would be that loss, we think, ought to fall upon those unreasonable to fasten a loss, under such who were entitled to the fund that has percircumstances, upon learned counsel of ished." large experience and much ability, rendering a service for compensation, much more unreasonable would it be to fasten a loss, under precisely the same circumstances, on an illiterate and feeble-minded old man, who supposed he was doing an act of kindness to a neighbor, and acted without expectation or desire of reward. We are of opinion that Hale should not be held responsible for receiving bank notes and Confederate States treasury notes in discharge of the debt.

3. Nor do we think that the deposit in bank in his own name should render him

V R, 22 Gratt-11

the decree of the Circuit court as holds Hale
The court is of opinion that so much of
responsible for the loss is erroneous, and

should be reversed, and the bill dis-
missed.
436

*On the cross-appeal, the court is of opinion, for the same reasons, that of the Circuit court as dismissed the bill as there is no error in so much of the decree to. Slusher, and that the same be affirmed, with costs, &c., to the appellee.

161

The decree as to Hale, reversed; as to Slusher, affirmed.

*Va. & Ten. R. R. Co. v. Campbell's | to him for his lands through which the line

4. Same.-After the company has made a motion
for commissioners to ascertain the compensation
due to a land owner, and the commissioners have 439
reported, and the court has allowed the money to
be received by the clerk, and directed him to pay
it to the land owner, or hold it until the further
order of the court, the executor of the land owner
applies to the same court for commissioners to
ascertain such compensation, and this case is re-
moved to the Circuit court. The removal of this
case does not bring up the first, and neither the
Circuit court, nor this court, can enquire whether
there is error in the action of the court in the first

In December 1857, upon the motion of David Campbell, five commissioners were The first question we will consider is as appointed to ascertain a just compensation to the jurisdiction of the Circuit court.

This case had been depending and undeter- | ing been removed to it from the County mined in the County court for several years. court, had jurisdiction of it, and was reThe first section of chapter 174 (Code of quired by the statute to proceed in, hear 1860) provides that where any suit, motion, and determine it, just as the County court or other proceeding, has been depending should if the cause had not been removed. 440 in the County or Corporation *court Consequently, the judgment of the Cirmore than a year, on motion of any cuit court, that it had no jurisdiction of party it shall, without notice, be removed the cause, and remanding it to the County to the Circuit court having jurisdiction over court, was erroneous. such county or corporation. The language is certainly broad enough to embrace this

case.

We are also of opinion that it was competent for the defendant to rely upon the record of the proceedings of the County court, had upon its motion to ascertain the compensation to which David Campbell was entitled, &c., in its defence to the motion of said Campbell's executor. But without deciding (which we are not authorized to do, as the cause is not before us,) whether that proceeding in the County court was final, or was still depending, and could be removed to the Circuit court by motion, we are of opinion that it was not competent for the Circuit court to decide any questions involved in that proceeding, as it was not before it by way of appeal or removal, and not then subject to its jurisdiction; and that, consequently, the judgment of said Circuit court is erroneous, so far as it sets aside the report of the commissioners in that proceeding, and directs other commissioners to be appointed.

442

But it is argued that the statute gives the County courts exclusive jurisdiction to appoint the commissioners, and requires their report to be returned to that court. And that if good cause be shown against the report, or if the commissioners report their disagreement, or if they fail to report in a reasonable time, the court (the County court) may, without further notice, as often as seems to it proper, appoint other commissioners, and the matter may be proceeded in as before prescribed. All these provisions, they say, are made with reference to the County court, and cannot originate in the Circuit court. It is true they cannot originate in the Circuit court. But if the legislature thought proper to pass another act authorizing, in express terms, the removal of such motion and proceeding from the County to the Circuit court for specified *The court is further of opinion that causes, surely such act could not be regarded the motion of the executor of David as repugnant to the former. But such an Campbell, in the County court, to have act could not more clearly embrace this case commissioners appointed, was unwarranted than the language which is used, to wit: by law. If it could be regarded as a motion "any suit, motion, or other proceeding, made in the proceeding instituted in that pending in a County or Corporation court." court, for the same purpose, by the railroad Any motion, or other proceeding, depend-company (and we think it cannot be so reing in the County court, in the case stated, garded), it ought not to have been entershall be removed to the Circuit court; and tained until the report of the former when removed, the fourth section provides, commissioners had been set aside for good "shall be proceeded in, heard and determined cause shown. We do not mean to intimate by the court to which it is removed, as if an opinion that that could have been done, it had been brought and the previous pro- or that it could not have been done, for the ceedings had in said court." The Circuit reason before assigned. But we are of court is clothed with all the powers as to opinion that the motion of Campbell's exthe case removed, which the statute vests ecutor is an independent motion, not conin the County court, to enable it rightly to nected with the proceeding instituted by decide the case. Consequently, when the the railroad company; and that the statute motion is removed to the Circuit court, it does not give to the land owner the right, has full jurisdiction of the subject, and may by motion, to ascertain his compensation hear and determine objections to the re- for his lands through which the railroad port of the commissioners, and for passes, and have been taken by the railroad good cause shown, may set it aside company, or to recover damages from the and appoint other commissioners; just said company. as the County court could do. The jurisdiction of the County court is transferred to the Circuit court over the cause removed, and with it all incidental powers necessary It is, therefore, considered by the court and proper to the complete and full exercise of jurisdiction. And the statute makes it that the said judgment of the said Circuit court be reversed and annulled; and that imperative upon the County court to remove the cause, in the case stated, on the motion the plaintiffs in error recover against the defendant in error their costs by them exof any party to the proceeding; consequently, it is equally obligatory on the Cir-pended in the prosecution of their writ of cuit court to take jurisdiction, to proceed supersedeas here: and this court proceeding in, hear and determine it, as if it had been to render such judgment as the said Circuit brought and the previous proceedings had court ought to have rendered, it is considered that the motion of David Campbell's executor be dismissed with costs. Judgment reversed.

441

in said court.

We are of opinion, therefore, that the Circuit court of Washington, the cause hav

The court is, therefore, of opinion, for the foregoing reasons, that the judgment of the Circuit court be reversed.