1. Where, in an action brought in a court of Virginia against an
endorser of promissory notes payable August, 1861, at Alexandria in
that state, the point in controversy being as to the sufficiency of
the notices of dishonor, and the court decided in substance that by
the general principles of commercial law, if, during the late civil
war, he abandoned his residence in loyal territory and went to
reside permanently within the Confederate lines before the note
matured, a notice left at his former residence was not sufficient
to charge him, if his change of residence was known, or by the
exercise of reasonable diligence might have been known, to the
holder of the note when it matured,
held that no federal
question was raised by the decision.
2. Where the plaintiff's prayer for instructions relates also to
the Virginia ordinance of secession and the proclamations of the
President of April, 1861, and Aug. 16, 1861, but, as the case stood
upon the evidence, neither of them was involved, and no title,
right, privilege, or immunity thereunder was claimed by either
party,
held that the prayer was properly refused, and, the
only federal question thereby sought to be raised having been
correctly disposed of, this Court cannot consider the other errors
assigned.
The case is fully stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a suit against William N. McVeigh as endorser of two
promissory notes, and the matter in dispute is as to the
sufficiency of the notices of dishonor. The notes fell due, one on
the 2d and the other on the 23d of August, 1861, at the Exchange
Bank of Virginia in Alexandria. The notary, in his certificate of
protest, stated that he had delivered "a notice of
Page 107 U. S. 434
protest to William N. McVeigh by leaving it at his dwelling in
the hands of his white servant," and the issue on the trial was as
to whether the house at which the notice was left was in fact the
dwelling of McVeigh at the time. Upon this point McVeigh testified
in substance that at sometime previous to the twenty-fourth of May,
1861, he sent his family to his farm in Culpeper County, Virginia;
that he remained at his home in Alexandria until after the military
forces of the United States took possession of the city, which was
the 24th of May; that on the 30th of May, under a pass from the
United States authorities, he left his home and went within the
Confederate lines to join his family with the intention of not
returning so long as the city remained in the possession of the
United States, which he supposed would be but a short time; that he
left in his house a white woman about seventy years of age, who had
been for many years his servant, and three colored servants, who
were slaves; that he did not discharge his white servant, but
advised her to go to the country; that on leaving, he had great
doubts whether he would ever see his property in Alexandria again;
that he remained with his family in Culpeper until the fall of
1861, when he removed to Richmond and engaged in business there,
and that he remained in Richmond until 1874, when he returned with
his family to Alexandria.
At the close of the testimony, the court, at the request of
McVeigh, charged the jury that
"If, on or about the 30th of May, 1861, and prior to the
maturity of the notes sued on, William N. McVeigh, having
previously sent his family, went himself within the Confederate
military lines with the intention of not returning to Alexandria
during its occupation by the United States forces, and accordingly
remained with his family continuously within the Confederate
military lines throughout the whole period of the war, and did not
return to Alexandria with his family until the year 1874; that such
absence at the maturity of said notes, respectively, was known, or,
by the exercise of reasonable diligence, must have been known to
the Exchange Bank of Virginia at Alexandria; that at the time of
said maturity, the armed forces of the United States and of the
Confederate States confronted each other on lines immediately
intervening between the City of
Page 107 U. S. 435
Alexandria and the said William N. McVeigh, so as to cut off and
prevent actual intercourse between the two, and such intervention
continued down to the end of the war, the notice of dishonor shown
by the notarial certificates of protest is not sufficient to fix
the liability of William N. McVeigh as endorser, and the jury must
find for him."
This instruction is substantially the same as that considered in
the
Bank v. McVeigh, 98 U. S. 332, and
which we held did not present a federal question. The only
difference, even in language, between the instructions in the two
cases consists in what is said in this about the establishment and
maintenance of the opposing lines of military forces and the
prevention of actual intercourse, which was not in the other. No
importance was given in the argument, however, to this difference,
and it may as well be said now, as it was before, that
"all the court below decided was that, by the general principles
of commercial law, if, during the late civil war, an endorser of a
promissory note abandoned his residence in loyal territory and went
to reside permanently within the Confederate lines before the note
matured, a notice of protest left at his former residence in the
loyal territory was not sufficient to charge him if his change of
residence was known, or by the exercise of reasonable diligence
might have been known, to the holder of the note when it
matured."
Under the question raised by the charge as given, therefore, we
have no jurisdiction.
But the plaintiff asked of the court certain instructions, which
were not given, and error is assigned for this. The fourth of these
requests presents all the questions relied on, and was as
follows:
"If the jury believe from the evidence that the notes sued on
were discounted by the Exchange Bank of Virginia at Alexandria
before their maturity, or that they were renewals of notes
theretofore discounted; that at the time of discount the makers,
endorser, and endorsee were residents of said city; that before the
maturity of the said notes, the federal forces had taken permanent
possession of said city; that after such possession, the endorser,
William N. McVeigh, left his residence in said city with the
intention of returning thereto, and went within the Confederate
lines to join his family at the time visiting
Page 107 U. S. 436
in the County of Culpeper; that the said endorser, at the time
the said notes respectively became due, was within the Confederate
lines in adherence of the southern Confederacy in obedience to the
Virginia ordinance of secession -- the court instructs the jury
that the said ordinance of secession was of no binding force or
obligation; that neither the proclamations of the President of the
United States, issued in April, 1861, and August 16, 1861, nor the
existence of the war, nor the ordinance of secession of the State
of Virginia, obliged the said endorser to be absent from his
residence in Alexandria nor relieved the holder of said notes from
giving him notice of the dishonor and protest thereof; that such
absence was voluntary, and did not affect the rights and duties of
the parties to said notes. And if the jury believe from the
evidence that at the time the said notes respectively fell due, the
said endorser had not abandoned his intention to return to
Alexandria, and had not acquired a domicile elsewhere, and that the
notes sued on were duly dishonored and protested, and on the day
thereof notice of such dishonor and protest was left at the
residence of the endorser in Alexandria with his white servant in
charge of the same, such notice was sufficient to bind the
endorser, and the jury must find for the plaintiff if they further
believe from the evidence that he is the
bona fide holder
of said notes."
The only point presented by this request not disposed of by the
charge as actually given is that which relates to the ordinance of
secession and the proclamations of the President. The plaintiff
claimed no "title, right, privilege, or immunity" either under the
ordinance or the proclamations. Neither did the defendant. The
issue in the case was as to the fact of a change of residence by
the defendant, not as to his power to make a change. The plaintiff
did not claim that by reason of the ordinance or the proclamation,
or even the existence of actual war, the defendant was prevented
from abandoning his home in Alexandria and taking up another inside
the Confederate lines. Neither did the defendant claim that the
ordinance, the proclamation, or the war, of themselves, made the
notice left at his former home insufficient. The ultimate fact to
be determined was whether, when the notice was left at the house
formerly occupied by the defendant, it was left at his place of
residence.
Page 107 U. S. 437
As the case stood upon the evidence, the ordinance of secession
and the proclamations were in no way involved. The plaintiff
claimed nothing under them; neither did the defendant. The charge
in respect to them, as requested, was therefore immaterial, and was
properly refused. As this presented the only federal question in
the case, and it was correctly disposed of, we cannot consider the
other errors assigned.
Murdock v.
Memphis, 20 Wall. 590.
Judgment affirmed.