Richmond. The various acts passed by that body constitute important and valuable laws for the adjustment of many perplexing questions growing out of the war. April 1861, to the 3d day of April 1865, the and 1866 and 1867, assembled in the city of city of Richmond, and the public property of the State therein, was under the control of the Richmond State government; and that the authority of the government of Virginia at Wheeling, and afterwards 10cated at Alexandria, was not recognized or enforced in said city of Richmond. And that the Richmond government was, between the periods aforesaid, aiding and assisting in the war against the Government of the United States. Staples, J. This case brings before the court the question of the liability of the State for plaintiffs' tobacco, stored in a public warehouse in the city of Richmond, and destroyed by fire on the 10th March 1863. It is a question of novelty, and considerable difficulty. As there is no adjudged case, no precedent, to guide the court in its decision, we must act according to our best convictions of the principles of law controlling the rights and obligations of the parties. This court held, in Chalkley's case, 20 Gratt. 404, that the present government is not legally responsible for any debt contracted, or liability incurred, by the authorities having control of the State after the ordinance of secession was adopted. This decision has been the subject of some complaint and criticism. It is easy, however, to demonstrate that this is not the Richmond government, nor the successor to that government, and consequently 44 *that it is not answerable for the debts contracted by that government. It is well known that on the 19th June 1861, a convention assembled at Wheeling, adopted an ordinance reorganizing the State government, providing for the election of officers, prescribing an oath of fidelity to the Constitution of the United States and of the State, and declaring vacant all offices upon the failure of the incumbents to take the oath so prescribed. The government thus organized at Alexandria continued in existence until superseded by the reconstruction laws under which the present constitution was framed, and adopted by the people. How is it possible, in the light of these facts, to maintain that the present government is identical with, or is the successor to that Richmond government? Besides all this, the constitution expressly prohibits the payment of any debt or obligation created in the name of the State of Virginia, "by the usurped and pretended State authorities assembled at Richmond during the late war." It is not our province to discuss the propriety of this provision, or the language in which it is 45 them. No expressed. We are sworn to expound the *constitution and laws as they are written, and not as we would have have been the true and lawful government The Richmond government may of Virginia, as maintained by some. doubt it represented the views and wishes neither its contracts nor its liabilities can of a large majority of the people; but impose any legal obligation upon the State which the courts can recognize, under the present constitution and laws. In Chalkley's case, the contract was made with the Richmond authorities, and the credit given to them or their agents exclusively; and this court held that the present government could not be held accountable for the debt thus contracted. In the present case, it is true, the original contract, if such it be, was made in 1860 with the regular State government; but we are to consider the true import and operation of that contract, and how far it was modified or affected by subsequent events. This renders necessary a brief consideration of the statutes in regard to the inspection and storage of tobacco. They are too numerous and complex to justify a citation in this opinion. It is clear, however, that they contemplate in the first instance an inspection and storage for a year; in which case the owner is not responsible for the payment of a rent. He may at the expiration of that period, or sooner, remove his property upon the payment merely of the officers' fees for inspection, and the State charges. These charges and fees amount to sixty cents for each hogshead of tobacco inspected, stored, or delivered, and a special charge of thirty cents upon the hogshead, supposed to be intended for the risk of insurance. They are to be paid, as is conceded, whether the deposit be for inspection merely, or inspection and storage, embracing one day or one year. But this compensation did not embrace a longer time than the year. At the expiration of that period, the State might have repealed its statutes, or discontinued the arrangement, without any just cause of complaint. At the date of the *inspection, or storage, it The government thus restored, as it was termed, continued until the adoption of the Alexandria constitution, on the 12th February 1864. Under this constitution a legislature assembled on the 19th June 1865, in the city of Richmond. It passed an act for the election of members of the General Assembly, and for taking the sense of the people in relation to the disqualifications for office imposed by that constitution; and it required that all persons voting in such election should take an oath to uphold and defend the government restored by the convention at Wheeling. Under the authority of this act, the legislature of 1865 and 1866, 46 was bound to know the owner might | insured against any loss by fire in consecontinue the same for the year; but it was quence of its trotting itself off to Alexannot required to know that he would exceed dria or Wheeling. It insured against any that period. If the year being ended, he damage by fire in consequence of its abanelected to continue the storage, he might donment, even if such a case were made so do for three years, inclusive of the first out. All this might be true if the State year. In that event, however, a new con- had made a contract of insurance for any tract arose a new charge was made of five specific period beyond the first year of the cents on the hogshead per month, in the storage, founded upon a valid consideration nature of a rent for the use of the warehouse paid or stipulated to be paid for such risk. upon such extended storage. In this case But I have already shown, or attempted to the storage commenced between the 10th show, there was no such contract. The May and the 2d November 1860. Upon the plaintiff's tobacco at the time of its deexpiration of the year, they elected to con- struction had been on deposit nearly three tinue the use and occupation of the ware- years. For all this they had only paid cerhouse. At that time the government with tain inspectors' fees at the date of the inwhich the original contract was made had spection. When they elected to continue been overthrown, and another established the storage beyond the year, they well knew in its place, officers owing allegiance to, the government had been re-established at and deriving their authority from, the new Wheeling. This fact was made known government, had the management and con- through its laws and its proclamations, trol of the warehouse in which the tobacco through the recognition of the Federal was stored. The Confederate authorities Government, with which plaintiff's governhad also established their capital in this ment was in friendly and constant commucity; their officers and employees were in nication. the occupancy of every available building, public and private, and their armies quar- 48 tered within and without the city limits, in every direction. Under these circumstances the owners of this tobacco thought proper to continue its storage indefinitely in a warehouse not in the possession of the government with which they had contracted, nor under the direction of officers appointed by, and responsible to, that government. They made this election flagrante bello, and they persisted in it from month to month, and year to year, although the city was in continued danger of bombardment and conflagration. The plaintiffs must have had some information of the extraordinary events occurring here; they must have been apprised that war existed; that old governments were being overthrown, and new ones struggling into existence. If they were ignorant of these matters, it was their fault or their misfortune. By the exercise of a very moderate share of diligence, 47 they might easily have informed themselves of occurrences which so much concerned them. The French consul resided in this city throughout the war. He should have kept them advised, and no doubt did, of the condition of affairs in this State. It is true, that the blockade would probably have prevented the removal of the tobacco from the country; but there was nothing to interfere with its storage in some other and more secure place, under the supervision of the plaintiffs' own agents. It is to be presumed that they preferred to continue the storage of the tobacco as it was, and to take the chances of its preservation. They must be held to have done so with full knowledge of the consequences; and they should be willing to bear the loss resulting from their adventure. But the position of the counsel is not sound in other *respects. The insurance of the State, if such it be, only extended to losses by fire. It did not comprehend the damage or loss of the tobacco occasioned by floods, tempests, or captured by hostile armies or superior powers. With the single exception of the promise of indemnity in case of fire, the position of the State was that of any other bailee for hire. Such bailee is only liable for the use of ordinary care and common prudence in the preservation of the property intrusted to him; but he is not an insurer in any sense of that term. There is no foundation for the pretension that the State insured against its abandonment in the face of overwhelming numbers. It insured against fire, but not against capture. Even as against insurance companies, to which the most stringent rules are always applied, it is well settled, that if there be an insurance against fire, and an exception by the assured in favor of capture, and the vessel is captured, and before she is delivered from that peril she is afterwards destroyed by fire, the loss is properly attributable to the capture alone. In Magoun v. New England Marine Ins. Com., 1 Story R. 157, 164, Mr. Justice Story said it would be an over refinement and metaphysical subtlety to hold otherwise. In the case of Dale v. New England Mutual Marine Ins. Co., 6 Allen R. 373, 395, Bigelow, C. J. said, "there is no stipulation in the policy that the insurers were to remain liable after the ship had passed into the hands of her captors. The cases in which it is held that where the insured is liable for capture, if followed by condemnation or detention for a prescribed period, and a subsequent abandonment, he is also liable for any supervening peril occurring during the intermediate period, are not applicable to cases like the present, where the risk of capture is not It assumed by the underwriters. See, also, The learned counsel for the plaintiffs, in their petition for an appeal here, say that the State of Virginia insured against its own acts of omission and commission. * * * Lewis v. Springfield Fire and Marine Ins. 51 Co., 10 Gray R. 159. 49 These views are founded on good sense and upon sound *reasoning. I do not perceive why they do not equally apply to this case. If the tobacco had been captured and appropriated by the Confederate government, or captured and destroyed by Federal soldiers, it will scarcely be maintained that the State is responsible for a loss occurring under such circumstances. As a general rule, it is true, where the property is destroyed by fire, the insurer is liable, though it were absolutely certain it would have been afterwards captured but for such destruction. But where the capture is made, and the damage from fire is the consequence of the capture, to impose the loss upon the bailee is to make him an insurer against both capture and fire. In this case the injustice is the more palpable because the owners, after the warehouse was taken by the Confederate government and appropriated by the Confederate authorities, might have taken possession of their property without the least difficulty. The condition of the country at the time of the destruction of this tobacco, and indeed long before, is within the recollection of all. In the language of Mr. Justice Nelson, Mauran v. Insurance Company, 6 Wall. U. S. R. 14, a government in fact was erected greater in territory than many of the old governments of Europe, complete in the organization of all its parts, containing within its lines more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions; their vessels captured recognized as prizes of war, and dealt with accordingly; their property seized on land referred to the judicial tribunals for adjudication; their ports blockaded, and the blockade maintained by a suitable force, and duly notified to neutral powers, the same as in open and public war. 50 No one can for a moment entertain the opinion that either the plaintiffs or the State ever contemplated this state of things. The compensation agreed to be paid had no reference to such a risk. The State could hardly have been expected, for a charge of five cents per month on each hogshead of tobacco, to assume all the hazards of war, invasion, and conquest. did not undertake, it was not asked to insure, against any peril except that of fire. But as the fire occurred long after the warehouse had been wrested from the possession of the insurer by overwhelming numbers, the loss must be regarded as attributable to the capture, and not by any reasonable intendment within the terms of the contract. It For these reasons I am of opinion the judgment of the Circuit court should be affirmed. The other judges concurred in the opinion of Staples, J. Decree affirmed. *Hodge's Ex'or v. First Nat. Bank, Richmond. March Term, 1872, Richmond. 1. Presidents of Corporations-How Far Agents Ex Officio. The president of a bank has no authority, virtute officii, to make any admissions which will release the maker of a note to the bank from his legal responsibility created by the note. 2. Trial by Court without Jury-Appeal-Effect,+— In a case in which a jury is dispensed with, and the case is submitted for trial to the court, upon a bill of exceptions to the judgment, all the evidence is to be inserted in the bill, and in the appellate court it will be considered as on a demurrer to the evidence. 3. Same Same Evidence.-In such a case, when the judgment is for the plaintiff, and the defendant excepts, if it appears that a witness for the defendant, on his examination in chief, makes a statement of a fact in one way, and upon his crossexamination makes it in a materially different way, the first statement is to be rejected, and the last is to be taken as correct. This case is sufficiently stated in the opinion of Moncure, P. B. T. Johnson, and Page & Maury, for the appellant. Johnson & Williams, for the appellee. Moncure, P. This is a supersedeas to a judgment rendered by the Circuit court of the city of Richmond on the 11th day of May 1871, in an action of debt, in which the First National Bank of Richmond was plaintiff, and John L. Hodge, executor of William L. Hodge, defendant. The action was brought on two promissory notes, each of them payable on demand, and signed by William L. Hodge; one of them dated April 5th, 1867, payable to the order of "S. A. Glover, cash'r," for $3,700,"for value, being for a check Mr. Fant, pres't, gave me on Lockwood & Co., New York;" 52 and the other dated 27 July 1867, payable to the order of S. A. Glover, cashier, at the First National Bank, Richmond," for $2,037.74, "for value received." The case was tried on the general issue, and, neither party requiring a jury to be empanneled therein, the whole matter of law and fact was thereupon heard and determined, and judgment given by the court. The judgment was in favor of the plaintiff for the aggregate amount of the two notes, to wit: $5,737.74, with interest on the *Presidents of Corporations-How Far Agents Ex Officio.-See this title under section 2 in the analysis of the monographic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119. See also, Smith v. Lawson, 18 W. Va. 212. +Trial by Court without Jury-Appeal-Effect.-See Backhouse's Ex'x v. Seldon, 29 Gratt. 581, and note for a collection of cases upon the subject. See also, Western Union Telegraph Co. v. Powell, 94 Va. 268, 26 S. E. Rep. 828, and Ramsburg, Koogle & Co. v. Erb, 16 W. Va. 785, citing the principal case and Claflin v. Steenbock, 18 Gratt. 842; Wright v. Rambo, 21 Gratt. 158; Nutter v. Sydenstricker, 11 W. Va. 535; Wickes v. B. & O. R. R. Co., 14 W. Va. 157. fact. amount of each from its date till payment | fully discharged his debt to the same; and and costs. he introduced evidence tending to show, Two exceptions were taken by the defend- and sufficient to show, that such was the ant in the progress of the case in the court below, and bills of exception were accord- Now, if these notes had been given to, ingly signed by the judge: one of them was and this action had been brought by, the to the judgment given by the court in the brick company, instead of the plaintiff, no case, and sets out the evidence on both doubt the evidence introduced by the desides; the other was to the action of the fendant as aforesaid would have defeated court in overruling the defendant's motion the action. But these notes having been to set aside the said judgment, and grant given to, and this action having been him a new trial upon the grounds of error brought by, the plaintiff, instead of the in the said judgment, and of newly-discov- brick company, whether said notes ered evidence, which is set out in the bill of 54 were given in consideration *of a debt exceptions. The defendant applied for and due to the plaintiff by the defendant's obtained from this court a supersedeas to testator or by the brick company, the said the said judgment, and the errors assigned evidence was not sufficient to defeat the arise upon the two bills of exceptions afore-action, unless it was coupled with proof said. that the said notes were given to the plaintiff by the defendant's testator on condition that he was indebted to the said company in the amount of said notes. That arising upon the first bill presents the question, Was a right judgment given by the Circuit court upon the evidence certified in that bill? The plaintiffs thus clearly made out a good prima facie case; and, if the evi53 dence had stopped here, the *judgment rendered by the court would certainly have been right. It was not pretendedindeed, it was conceded by the defendant, that the said notes were in fact, as they purported to be, signed by his testator, Wm. L. Hodge. They are promissory notes in the ordinary form, and such as the plaintiffs had a right to take of their debtors. They expressly state on their face that they were given for value received, and one of them specifies the particular value received, which is evidence of the fact against the maker and his representatives. The only proof of that kind which we find in the record is a paper marked "Exhibit F," referred to in, and returned with, the deposition of H. G. Fant, a witness in behalf of the defendant, which paper was signed by said Fant and handed to said testator, and is in these words: "Washington, 16th May, 1867. favor of S. A. Glover, dated April 1866, for "The demand note of Wm. L. Hodge, dollars, thirty-seven hundred has been given merely as a voucher, until it is ascertained that he has paid the full amount due by him on stock in the brick company. "H. G. Fant, President." Reference is here made to one only of the two demand notes aforesaid, to wit, the one for $3,700. In fact the other, for $2,037.74, was not given until more than two months thereafter, to wit, the 27th of July 1867. It is not pretended that the latter was executed on any condition, or with any understanding, even with Fant, that the validity of the note should depend upon the maker's being indebted at that time to the brick company in the amount of the note, or in any amount. But as to the note for $3,700, what is the effect of the paper marked "Exhibit F," just set out? If that debt had been due, and that note had been given to H. G. Fant individually, then "Exhibit F" would have been evidence against him, and, coupled with the other evidence in the cause tending to show that But notwithstanding the form and nature of the notes, and the expressions which they contain, yet in a case between the original parties to the notes or their representatives, or between one of the original parties and the representative of the other, such as this case is, it is competent for the defendant to show in his defence a want or failure of consideration of the notes, or any other 55 matter which would render them illegal or void in whole or in part. Accordingly, the defendant contended that these notes were given by his testator on the mistaken idea that he was indebted in the amount of them to the Virginia Brick Company, of which he was a large stockholder, and out of transactions with which company the claim of the plaintiff originally arose; whereas, in truth and in fact, he was not, when he gave the said notes, indebted to the said company, but had previously the maker of the note had paid the full amount due by him *on stock in the brick company, would, no doubt, have been sufficient to defeat the action as to that note. But that debt was due, and that note was given to the First National Bank of Richmond. Though the note was payable to the order of S. A. Glover, cash'r, it was in effect payable to the said bank, of which he was cashier; that being the usual form of such transactions. The question is, how can the bank be effected by "Exhibit F?" The bank can only be so effected upon the by Hodge, and credit his statement that "it was given in a hurried way" by him, "over a month after the note for $3,700 was executed by Mr. Hodge." Then if Fant had any authority to bind the bank by the admission made in Exhibit F, he must have derived that authority from, and in virtue of his office of president of the bank. Did he derive any such authority from that source? The First National Bank of Rich57 mond was created under the act of Congress approved June 3, 1864, entitled "an act to provide currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof." 13 U. S. Stat. at large, p. 99. The fifth section of that act declares how banking associations may be formed. The eighth section declares when such an association shall become a body corporate, and what general powers it shall have; and among other things, that it may elect or appoint directors, and by its board of directors appoint a president, vice-president, cashier and other officers, define their duties," &c., "and exercise under this act all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt," &c., "by loaning money on personal security," &c., "and its board of directors shall also have power to define and regulate, by by-laws not inconsistent with the provisions of this act, the manner in which," among other things, "its general business" may be "conducted," &c. "And its usual business shall be transacted at an office or banking house located in the place specified in its organization certificate." The ninth section declares "that the affairs of every association shall be managed by not less than five directors, one of whom shall be the president;" what shall be their qualification as to residence, &c. ; how much of the capital stock of the association they must severally own, and what oath they shall take. ground that Exhibit F was signed by an agent of the bank duly authorized to sign it. Was it signed by such an agent? It is not pretended that any special or express authority was conferred upon Fant by the bank to sign that paper; or that the bank confirmed the act after it was done. Fant being asked, on his examination in chief by the defendant: “At the time you signed the paper marked F, did you give it as president of the First National Bank, and as intending to bind that institution?" he answered: "It was presented to me by Mr. Hodge, and without much reflection, I signed it as it purports to be, by the president of the First National Bank of Richmond. The paper must speak for itself. If I had the power as president of the bank to make such a contract, I made it with Mr. Hodge in the hurried manner in which it was presented to me. Being asked on cross-examination the following question: "The demand note of Mr. Wm. L. Hodge for $3,700 bears date April 5, 1867, the receipt given by you, and alluded to in your examination in chief as Exhibit F, is dated May 15th, (16th?) 1867. Will you explain why it is, if that receipt refers to the note of April 5th. 1867, that it bears a different date?" he answered: "It does refer to the note dated April 5th, 1867; it was given in a hurried way by me, over a month after the note for $3,700 was executed by Mr. Hodge. He stated to me at the time, that he thought there was some mistake about his owing the Virginia Brick Com56 pany, and asked me to sign the paper referred to, which I did." And being further asked, on cross-examination: "Was the board of directors of the First National Bank notified, at the time that you gave the receipts marked F, before referred to, of your doing so, and was it given by the authority of the board?" he answered: "Never, to my knowledge, nor by authority of the board." The evidence thus extracted from the examination in chief and crossexamination of the witness, Fant, appears to be in conflict, at least some portion of it, with another part of the evidence of the same witness in his examination in chief, where he says: "At the time Mr. Hodge gave the bank the note for $3,700 of the $5,700, he expressed to me the opinion or doubt whether he owed any thing to the Virginia Brick Company, and handed me at the time of signing said note of 33,700 the paper marked F for my signature, which I signed." But in a case such as this, where the whole matter of law and 58 fact is heard and determined, and judgment given by the court, and there is a bill of exceptions to such judgment setting out the evidence in the case, in an appellate court the bill of exceptions is regarded in the light of a demurrer to evidence, and where there is a conflict of evidence, the conflicting evidence in favor of the exceptant is disregarded by the court. According to that rule we must disregard the statement of the witness, that he signed Exhibit F at the time the note for $3,700 was signed V R, 22 Gratt-3 Thus it appears that the general management of the business of the bank, and the interest therein of the shareholders, are confided to the care of the board of directors, and there is in the act no specification of powers or duties to be exercised by the president or cashier. The election or appointment of such officers by the board is provided for by the act; which also provides that the board may define their duties. But there is nothing in *the record to show whether such duties have ever been so defined. We must, therefore, regard the president and cashier of this bank as having only such powers as may be incident to their offices respectively, in their very nature, in the absence of anything in the act of incorporation to the contrary; and we must regard all other powers needful to the management of the concerns and business of the bank as residing alone in the directory. 33 Then, had Fant any inherent power as |