Opinion of the court.

munication with Virginia. If some persons did take the risk and cross the line in order to save their property, certainly Fretz, who did not choose to break the law and encounter the danger, cannot be held responsible for not going to Virginia and withdrawing the bond and deed of trust from the hands of Chilton. When, in 1864, he first heard from Chilton, he was told his papers were safe and would be kept so, as nothing but Confederate money could be collected, which was valueless. And not until 1866 did he learn the truth, although after the war closed he had frequent personal interviews with Chilton. This conduct of Chilton's shows his consciousness that he had attempted to wrong his principals and his unwillingness to disclose his culpability. But it is of no importance what he attempted to do, for his principals are not bound by his wrongful acts. If he was authorized when he received the bond to collect it when due, in bank bills which were current in Virginia at the time, this authority was conferred in ignorance of, and without reference to, the contingency of war, and in the nature of things was revoked when war broke out. The authority to collect was based on the power to remit, and this it was impracticable, as well as unlawful, to do. Besides this, the authority to receive bank bills at all, in the collection of debts, only rests on the theory that they pass as money at their par value by the common consent of the community, and can be used by the principal where he lives in the common transactions of life. But when this is not the case, and war has disturbed the country to that extent that the paper used in Virginia to pay debts is of no value in Pennsylvania, there is no longer any authority to take it by an agent living in Virginia in discharge of a debt due a citizen of Pennsylvania. If it were otherwise, then, as long as the war lasted, every Northern creditor of Southern men was at the mercy of the agent he had employed before the war commenced. And his condition was a hard one. Directed by his government to hold no intercourse with his agent, and therefore unable to change instructions which were not applicable to a state of war, yet he was bound by

Opinion of the court.

the acts of his agent in the collection of his debts the same as if peace prevailed. It would be a reproach to the law if creditors, without fault of their own, could be subjected to such ruinous consequences.

If Chilton could not receive payment of the bond in Confederate paper and Virginia bank notes, neither had Stover the right to pay them. It was a void act on his part to attempt to discharge his debt in this way, as well as a fraud in Chilton to suffer him to do so. His obligation when the bond fell due was to pay it in the legal currency of the United States, and yet he tries to discharge it in paper worthless to Fretz, and with knowledge that, worthless as it was, it could not be sent to him. If it be true that he did not represent Fretz, still he had no right to do an act of gain to himself, but of no benefit to Fretz. Besides, what ground had he for supposing that Fretz gave authority to Chilton to make such a sacrifice? As a sensible man he must have known that this could not be so, especially as the debt was secured by a deed of trust on a valuable farm. It is impossible to escape the conviction that there was collusion between Chilton and Stover in the transaction, but whether this be so or not, the transaction itself was invalid.

In recognition that this might be the judgment of the court, Stover asks that his payments may be applied towards the debt for professional services due Chilton from the appellants. Without stopping to inquire whether this could be done, if the appellants owed Chilton anything, it is enough to say that the evidence shows that the indebtedness is the other way.

It is claimed that the Virginia bank notes at least should be treated as payment pro tanto, but, as we are advised, the difference between their market value and that of Confederate bonds and notes was merely nominal during the war, and when it ended the bank notes were worthless, being only secured by Confederate bonds.* Apart from this, the

* See the ordinances adopted by the Convention of Virginia in June and July, 1861, after the State had seceded.

Syllabus.

evidence shows they were, when paid, equally with Confederate paper valueless in Pennsylvania.

The views taken of this case accord with Ward v. Smith,* and are supported by the Court of Appeals of Virginia in Alley et al. v. Rogers. It follows, from what has been said, that the bond given by Charles Stover to Isaac Fretz and Catharine his wife has not been paid, or any part of it, and that the deed of trust to secure it is still a subsisting security in full force and effect.

DECREE REVERSED AND THE CAUSE REMANDED, with instructions to enter a decree for Catharine Fretz, survivor of her husband, in conformity with this opinion.

REVERSAL AND REMAND ACCORDINGLY.

SWEENEY ET AL. v. LOMME.

1. In a suit on a replevin bond given to the sheriff, where the question whether the proper party to sue is the sheriff or the party for whose benefit the bond was given, depends upon the code of practice of Montana Territory, this court will not reverse the decision of the Supreme Court of that Territory on the question; that being a question on the construction of their own code.

2. In a suit on a replevin bond the defendants cannot avail themselves of the failure of the court to render in the replevin suit the alternative judgment for the return of the property or for its value; even if that were an error for which that judgment might be reversed.

3. If a return be awarded in the replevin suit, the surety is liable on the condition of the bond to return, and this without execution or other demand for its return. The judgment establishes the liability.

4. Nor is this liability to be measured in this action by the value of the interest in the property of the attachment debtor, for whose debt it was scized by the sheriff. The value of the property at the time it was replevied, limited by the debt still due on the attaching creditor's judgment and the penalty of the replevin bond, are the elements of ascertaining the damages in the suit on that bond.

5. When it appears for the first time in the argument of a cause that the

* 7 Wallace, 451.

† 19 Grattan, 881.

Statement of the case.

existence of the judgment appealed from is not stated in the record, the court of its own motion may allow the plaintiff in error a certiorari and time to produce a certified copy of it.

ERROR to the Supreme Court of the Territory of Montana. The case was thus:

The Civil Practice Act of the Territory of Montana thus

enacts:

"Every action shall be prosecuted in the name of the real party in interest."

"In an action to recover possession of personal property judgment for the plaintiff may be for the possession; or the value thereof in case a delivery cannot be had, and damages for the detention of it."

This enactment being in force, Lomme sued B. & C. Kintzing, in one of the District Courts of the said Territory, as partners, to recover a debt, and in that suit issued an attachment, under which the sheriff seized certain personal property, alleged to belong to the Kintzings, as security for the satisfaction of any judgment that might be recovered against them.

In this state of things one Watson brought replevin against the sheriff, to recover possession of this property; and—two persons, Sweeney and Holter, entering as sureties into a written undertaking to the sheriff, in $5000, conditioned "for the return of the property to him, if return thereof should be adjudged, AND for the payment to him of such sum as might be recovered against Watson"—the property was delivered to Watson.

In this action of Watson against the sheriff the jury found a verdict "for the defendant," on which the court entered a judgment to the effect that the sheriff "recover from the plaintiff, Watson, the possession of the property replevied in this action," and his costs.

The jury did not find the value of the property replevied, nor was any alternative judgment entered against Watson, as required by the already quoted section of the Civil Prac

Statement of the case.

tice Act, for the value of the property in case a return could not be had.

No execution was ever issued on this judgment for the return of the property; nor was it ever returned or offered to be returned to the sheriff, by either Watson or his sureties. Going back now to the original suit. In that suit Lomme obtained, October 27th, 1870, judgment against the Kintzings for $4954, with interest at 10 per cent. and costs, about $1300 of which was got on execution.

Thereupon he sued Sweeney and Holter, as sureties in the undertaking given to the sheriff in the replevin suit brought against him by Watson for the property attached by the sheriff at the instance of Lomme, as the property of the Kintzings; the object of this suit being to recover from the sureties the value of the property replevied, or so much thereof as might be necessary to satisfy the balance of the amount due upon the judgment obtained by Lomme against the Kintzings.

On the trial the plaintiff, Lomme, gave no evidence of the assignment, or of the delivery, of the replevin bond to him by the defendant in the action of Watson v. The Sheriff; and was permitted to prove the value of the property attached, at the time it was replevied by Watson, this value being fixed by witnesses at from $7000 to $10,000.

At the conclusion of the plaintiff's case, the defendant moved for a non-suit, on the ground that Lomme could not sue in his own name on the bond given to the sheriff. The court refused the non-suit, holding that the bond having been for the use of Lomme, and he being the real party in interest, he could so sue.

The evidence being all in, the defendants requested the court to charge:

That the only interest which the plaintiff could claim in the goods was just the interest which the Kintzings had at the time of the levy of the attachment on them, and that he could recover no greater amount from the defendants than the value of the interest of the Kintzings in them, at the said time, if he recovered at all.