The arbitrators made their award, by | of May 1872; which credit was for the value which they awarded that Forrer should pay of the surrender of the lease by Forrer to to Mrs. Coffman the sum of $2,817.73, with the plaintiff. interest on $356.26, a part thereof, from the 12th of May 1671; on $475, another part thereof, from the 12th of November 1871, and on $1,986.47, the residue thereof, from the 12th of May 1872; and further that Forrer should deliver to said Coffman, immediate possession of the lot of ground mentioned in the submission. At the June term of the county court of Rockingham, on the motion of Mrs. Coffman, a rule was awarded upon Forrer to show cause why the award aforesaid should not be entered up as the judgment of the court. This rule was served on Forrer, who appeared; and the motion came on to be heard at the July term of the court; when the court rendered a judgment in favor of Mrs. Coffman against Forrer, in pursuance of the terms of the award. And Forrer excepted. And these being all the facts proved in the case, the defendant Forrer moved the court to set aside the award, and not to enter judgment upon it. 1st. Because the original award as made, signed and delivered, was not made under seal, as required by the submission. 875 2d. Because the award was not final, and did not dispose of a suit pending in the court, for part of the rent accrued after said 25th of December, 1870. 3d. Because of apparent errors on its face, in allowing interest from a period anterior to the time the rent was due or to become due under the lease. 4th. Because the rent accruing was reduced to cash by simple interest, instead of compound. 5th. Because it is impossible, in requiring the surrender of the lease of Forrer & Clippinger by Henry Forrer. 6th. Because the rule to show cause against the award issued in the action of assumpsit pending in the County court of Rockingham, for part of the rent, and because the court has no jurisdiction at a monthly term to enter the same. 7th. Because the award was unjust and excessive. By the agreement of the 13th of January 1868, Mrs. Coffman rented to Forrer & Clippinger, for the term of five years commencing on the 12th of May 1870, and ending on the 11th day of May 1875, a store room and its appurtenances, and also all the rest of the lower story of the main building of said house, except, &c.; in consideration for which they agreed to pay to her an annual rent of nine hundred and fifty But the court overruled the motion to set dollars, to be paid at the end of each suc-aside the award; and as before stated, encessive six months of said lease; and they tered judgment thereon in favor of Mrs. further bound themselves to make extensive Coffman against Forrer. And thereupon specified improvements on the house at Forrer applied to the Circuit court of Rocktheir costs. On the 25th of December 1870, ingham for a writ of error and supersedeas the house was entirely consumed by to the judgment; which was refused: and *fire, the lessees having paid the rent he then made the like application to a judge up to November 12th 1870. of this court; which was allowed. 874 Woodson, for the appellant. Yancey & Johnston, for the appellees. STAPLES, J., delivered the opinion of the court. The parties not agreeing as to the liability of Forrer & Clippinger to pay the rent after the house was consumed, the suit was brought by Mrs. Coffman against them; and the agreement for a submission of their matters to award, and the award was made as hereinbefore stated. As to the award it appeared in evidence, that it was prepared by the arbitrators and handed to the counsel of Mrs. Coffman by one of the arbitrators on the 24th of May 1872, in the absence of the others. When this was done, the word "seal" was not in the body of the instrument, and no seals were attached to their names; and on the next day the counsel returned it to the arbitrators with the request that they would affix seals to their names, and insert the words "and seals" in the 876 body of the award; which was done by the arbitrators, who thereupon, all being present together, delivered the same to said counsel on the same day. An action of assumpsit was brought in the Circuit court of Rockingham county, by Mrs. Coffman, against Henry Forrer and Charles T. Clippinger, late partners, trading under the firm and style of Forrer & Clippinger. During the pendency of the action it was agreed between plaintiff and defendant Forrer, to submit the matters in controversy to arbitration, and the award pursuant thereto to be entered up as judgment of the court. *The submission required the arbitrators to make their award under their hands and seals, ready to be delivered on or before the 17th of February 1872. The time was subsequently enlarged to the 25th of May following. The defendant proved by one of the arbitrators, that they intended to allow the plaintiff the whole amount of rent accruing The award was made and completed on after the 25th of December 1870 down to the the 24th of May, and delivered by one of termination of the lease, reduced to cash the arbitrators, in the absence of the others, on the 12th of May 1872, subject to a credit to the counsel for the plaintiff. The counof $400 a year from the date of the award sel discovering that the award was not to the termination of the lease in May 1875; "under the seals" of the arbitrators, as in like manner reduced to cash on the 12th | required by the submission, returned it to delivered to the counsel. them on the morning of the 25th, with a matters of controversy included in it. The request they would supply the omission; submission provides that the award shall which was accordingly done by the arbitra- be entered up as the judgment of the court. tors, all of them being present; and there- When so entered, it necessarily terminated upon, on the same day, the award was again the action and all matters of contro878 versy *fairly connected with it. The award was in fact the judgment of the court, and as such ended the suit. It is also insisted, that the arbitrators had no right to allow interest on the payments. The leased tenement had been destroyed by fire long before the period fixed for the termination of the lease. And the parties desired to ascertain the extent of the lessees' liability for the rent due and to become due; and whatever it might be, the defendant agreed to pay immediately. The arbitrators accordingly ascertained the present value of the lease, and the amount to be paid the plaintiff in satisfaction of her claim; and the sums thus ascertained bear interest. It is clearly competent for the arbitrators to award the payment of interest upon the principal adjudged to be due. Even if they had made a mistake, it is not such a mistake on the face of the award as the court can correct. It is insisted that the arbitrators were functus officio, and they were not authorized to change or interfere with the award after it was first delivered to counsel. The objection is of the most technical character. The additions made by the arbitrators were mere matters of form. They did not affect the merits or the substance of the award, or involve the exercise of any new and distinct act of judgment on the part of the arbitrators. It is impossible that either party could be prejudiced by the act. The omission was no doubt accidental, or the result of misapprehension; and the arbitrators had the right, as it was their duty, to supply any mere formal defect of the kind, certainly before the time fixed for the delivery of the award. In Irvine v. Elnon, 8 East's R. 52, Lord Ellenborough said, that the arbitrator's authority having been once completely exercised, pursuant to the terms of submisThe only remaining objection to be consion, was at an end, and could not be revived sidered relates to the jurisdiction of the even for the purpose of correcting a mis- County court to enter judgment on the taken calculation of figures. But that view award at the July term 1872. It is insisted was placed upon the distinct ground, that that this was a monthly term, and the court such mistakes might involve the es- was not authorized at such term to take any 877 sential *merits of the case. And the action upon the award. It is unnecessary distinction is well taken between acts to consider whether the laws prescribing which may change and correct the judg- the jurisdiction of the County courts proment of the arbitrator, and acts which in-hibit these courts at monthly terms, from volve mere matters of form; such as the entering up awards as the judgment of the simple insertion of date and the like. As court. By the act of July 11th, 1870,. the to the latter, there is no valid reason why judges of the County courts are empowered the arbitrator may not perform them even to designate four or more terms for the after a delivery of the award, more espe- trial of civil cases, in which juries are recially when the time has not expired, which quired. Whether the July term of the terminates the arbitrator's authority. The County court of Rockingham was one of tendency of the modern decisions is to dis- the courts thus designated, the record does regard, as far as possible, mere matters of not inform us. In the absence of all proof form, and to give force, conclusiveness and on the subject, we must presume that the effect to awards where no corruption or court in this case did not assume an unmisconduct on the part of the arbitrators is warranted jurisdiction. charged, and no fraud or deceit imputed to the parties. 879 *For these reasons I am of opinion to affirm the judgment. Judgment affirmed. The second objection is, that Clippinger is not noticed in the award, although he is a party to the action, and one of the lessees of the property involved in the decision of the arbitrators. The answer is, that Clip-880 pinger was in no way concerned in the submission, and cannot, therefore, be bound by the award. The defendant Forrer agreed to surrender the lease, to assume any liability which might attach to the firm, and to pay the plaintiff for the rent of the property such sum as should be ascertained by the arbitrators. The award may not be binding upon Clippinger, who was no party to the submission; but it is none the less valid as to Forrer, who did assent to it. As to him, the award is within the terms of the submission. The third ground of error is the alleged failure of the arbitrators to dispose of the action of assumpsit, and of the several | *Gatewood's Adm'r v. Goode & als. September Term, 1873, Staunton. Several Defendants-Lien of Judgment-Case at Bar.At the March term 1861, of the county court of Monroe, a judgment was rendered at the suit of the bank of V plaintiff against W, S and G, the latter living in the county of Bath. Execution of fi. fa. was issued on this judgment and levied on the property of W, and the sheriff returned, after June 1861, a levy upon the personal property of W, that the property was appraised and offered for sale, and not bringing valuation it was returned. G died during the war, leaving real estate in Bath county, and also in West Virginia; and after his death some of his creditors filed their bill in the Circuit court of Bath, to subject his real estate to to the *aforesaid judgment of the Bank of Virginia against the Lewis's the payment of his debts. The commissioner re- | 882 ported the above judgment as a debt by judgment having priority. A copy of the judgment was cer- and Gatewood. This judgment had not tified by the clerk of Monroe Circuit court, "and as such, keeper of the records of Monroe county court, and which by law are a part of the records of my office." The Circuit court confirmed the report. HELD: been docketed. A copy of the record of the judgment was certified by the clerk of the Circuit court of Monroe county, who stated in his certificate, that as such clerk he was keeper of the records of Monroe county 1. Same-Same-Docketed. The judgment consti- court, which by law were a part of the tuted, as between the parties thereto, a lien on records of his office. This judgment the the real estate in Virginia belonging to the judg-commissioner reported as a debt of the first ment debtors or any of them, whether the said judgment was docketed in the counties in which the real estate might be or not. class, and it amounted on the 1st of January 1870 to $2,484.95, of which $1,634.74 was principal. The cause came on to be heard on the 14th of May 1872, when the court confirmed the report of the commissioner; and it was decreed that the special receiver in the cause should proceed to pay the debts of the intestate according to their respective priorities. And thereupon Gatewood's adm'r applied to this court for an appeal; which was allowed. 2. Same- Same- Discharged- Satisfied. That the 881 impaired by reason of the division of the State of Virginia into two States, and the falling of the county of Monroe into the State of West Virginia. 4. Same Certificate of Clerk of Circuit Court - Proper Evidence. That the certificate of the clerk of the Circuit court of Monroe county, in West Virginia, of the records of which court the records of the former county court of Monroe form a part, was proper evidence of such judg ment; and there appearing no other judgment binding said lands, or any debt of G of superior dignity, there was no error in the decree. Skeen, Sheffey & Bumgardner, for the For the purposes of the suit, as it stood in the court below, the judgment of the President and Directors of the Bank of Virginia v. W. L. Lewis, S. V. Gatewood, &c., cannot be regarded as a judgment of the State of Virginia, but must be regarded as a judgment of a foreign State, not conclusive, but subject to such defences as are received against judgments of that class. The judgment is certified by the clerk of the Circuit court of Monroe county, in the is certified to be in due form according to State of West Virginia, and the certificate the law of West Virginia, by a judge of West Virginia. Such certificates are only competent evidence to prove it as a judg ment of the State of West Virginia. As a Virginia judgment it is not proven at all. The certificates of clerks and judges of other States are not competent evidence to 883 prove the judgments of the courts of Virginia. *If a judgment of the State of Virginia, it is not legally proven, and the report stating it as a debt is erroneous. If a foreign judgment, the report is erroneous in stating it as a preferred debt against the estate of S. V. Gatewood: and on either grounds it was erroneous to confirm the report. Samuel V. Gatewood, of the county of Bath, died some time during the late war, seized of real estate in said county, and also in the county of Pocahontas in West Virginia. In his lifetime an action of debt had been instituted in the County court of Monroe county by the Bank of Virginia against Wm. L. Lewis, S. P. Lewis and himself; and at the March term of the court for 1861, there was an office judgment confirmed against them for $2,500, with interest from July 18th, 1860, and notary's fees and costs amounting to $8.65. On this judgment execution was sued out against all the defendants, which went into the hands of the sheriff of the county; on But the debt must be regarded as satisfied, which he, after June 1861, returned the re- at least, as regards the estate of S. V. ceipt in payment of $1,000, and a levy upon Gatewood. Execution was issued from the personal property of Wm. L. Lewis; naming office of the County court of Monroe on the it; that the property was appraised and 21st day of March, 1861, and upon that exeoffered for sale; and not bringing valua- | cution the following return was made by tion, it was returned. After Gatewood's death Samuel Goode and others, creditors of Gatewood, filed their bill in the Circuit court of Bath county, against his administrator and heirs, to subject his real estate to the payment of his debts; and in the progress of the cause a commissioner was directed to take an account of the debts and their priorities. The only questions in this case relate the officer: "Levied the within execution upon the following property of William L. Lewis, as per statement attached hereto, to wit: Six horses, &c., the property appraised and offered for sale, and not bringing valuation was returned.' This return was made by the officer in undertaking to pursue section 3d of the ordinance of the convention passed April 30, 1861, and which is found in the (Richmond) Acts of Assembly of 1861, among the ordi- | new execution, at least, without having nances, page 34. This ordinance is uncon- credit for the amount of the first levy. stitutional, null, and void, because it clearly And further on: "But if the property levied impairs the obligation of contracts. This ordinance is similar in its general scope and design to the stay law of North Carolina of May 11th, 1861, and that of Missouri of March 7th, 1861, both of which were declared unconstitutional, the first in the case of Barnes v. Barnes, 8 Jones R. (N. C.) 366. The latter in the case of Stevens v. Andrews, 31 Missouri R. 205. It is in substance identical with the act of Indiana, which was considered by the Supreme court of the United States in the case of McCracken v. Hayward, 2 How. U. S. R. 608, except that the ordinance required sale at full valuation according to what would have been its value on the 6th of November, 1860. The Indiana act required sale at two-thirds of the amount of valuation. *In McCracken v. Hayard, in which case the case of Bronson v. Kinzie, 1 How. U. S. R. 311, to the same effect, was reviewed and approved, the court held the Indiana act to be unconstitutional. The cases on this subject are collected and considered in Cooley, Const. Lim. page 884 290. The ordinance being unconstitutional, the return made by the officer was illegal; and his act in restoring the property to the principal debtor was official misconduct for which he is answerable to the same extent and in the same way, and which has the same effect upon the parties to the execution as if the ordinance had never been passed. Cooley, Const. Lim. 188; State of Missouri v. Gatzweiler, 49 Missouri R. 17; State v. Bradford, 44 Georgia R. 417; Brown v. Henderson, 1 Missouri R. 134. The sheriff, in pursuing this ordinance, is to be held to the same responsibility, and his acts have the same effect upon the rights of the parties to the execution as though no such act had ever been passed. In this case the execution was levied upon property of the principal debtor, ample in value to discharge the debt, and the sheriff returned the property to the owner of his own mere notion, without consent of the endorsers. Had the property been sold, as the sheriff was bound to do, the debt would have been paid and the sureties exonerated from liability. According to the general doctrine "that the levy of an execution upon sufficient property to discharge it, is a satisfaction," as explained and modified in this court in this case of Walker & als. v. Commonwealth, 18 Gratt. 13, this execution as against the estate of S. V. Gatewood is satisfied. In this case the court says "the sureties are interested in having the property of their principal, thus specifically bound for the payment of that debt, applied to 885 that purpose in their exoneration, in whole or in part, according to the value of the property. They also have a right to be consulted by the plaintiff in giving up the levy, and must consent thereto in order to make them liable to a on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied, and the plaintiff can then only look to the sheriff for indemnity." * * * "If that property be lost by the default of the officer of the law, who in this respect may be said to be the agent of the plaintiff, and without the consent of the defendant, it is reasonable and proper that the loss should not fall on the defendant." Then by parity of reasoning it must follow, that where property of the principal debtor sufficient to satisfy the execution, has been levied on, and the sheriff, by his misconduct, without the consent of the sureties who "are interested," as this court says, "in having the property of their principal, thus specifically bound for the payment of that debt, applied to that purpose in their exoneration," has returned the property to the principal debtor, "it is reasonable and proper that the loss should not fall" on the sureties, whose valuable interests have been destroyed by the unwarrantable act of the sheriff, "and that they should be held as not subject to a new execution; and that the plaintiff in such a case should be turned over to his remedy against the sheriff, for his misconduct and default, who in this respect may be said to be the agent of the plaintiff,' or resort to the principal debtor, as to whom the execution should not be regarded as satisfied, inasmuch as the property was returned to him, necessarily with his consent, and as he has sustained no injury by the action of the sheriff. 886 *Pendleton, for the appellee. Did the levy made on Lewis' property in 1861 release Gatewood? This effect is claimed on the ground that the ordinance of the convention of April 30, 1861, was unconstitutional and void. It is claimed by the appellees that during the period from the 17th of April 1861, to the 4th Thursday in May, 1861, at least, the State of Virginia was not subject to the restraints of either the Federal or the Confederate States constitutions. The State of Virginia, during that period had, by her declared act of secession, resumed her separate sovereignty, was an active belligerent, holding actual possession of her soil by force of arms, and had forces in the field sufficient to make good her pretensions. Her own constitution and laws were then supreme over her territory and people. United States v. Rice, 4 Wheat. R. 246; Fleming v. Page, 9 How. U. S. R. 614. Thorington v. Smith, 8 Wall. U. S. R. 1, the court say: "to the extent then of the actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned;" and on p. 13, "the inhabitants must be regarded as under the authority of the insurgent belligerent power actually established In as the government of the country, and con- If the ordinance of April 30, 1861, needed tracts made with them must be interpreted further legislative sanction, it is to be and enforced with reference to the condition found in the act of Assembly passed March of things created by the acts of the govern- | 29, 1862, (Sess. acts, pp. 95, 96, 97). Section ing power." That the counties of Monroe 8 of this act repeals the ordinance, but proand Bath were during that period within vides that such "repeal shall not affect any the military lines of the troops of Virginia right established, accrued or accruing under, is a part of the public history of the war. or remedy or relief provided by the second, The third section of the "Ordinance to third and seventh sections of said ordiprovide against the sacrifice of prop-nance." 887 erty and to suspend proceedings *in certain cases," passed April 30, 1861, provides: The return of the sheriff of Monroe county on the writ of fi. fa. issued in 1861, is in these words: "Levied the within "If the debtor offers no such bond, (the execution upon the personal property of stay bond provided for in the preceding sec- William L. Lewis, as per statement attion,) it shall be the duty of the officer to tached hereto, to wit: six horses, &c." convene three freeholders from the vicinage, "The property appraised and offered for who, after being sworn, shall proceed to sale, and not bringing valuation, was revalue the property according to what would turned." This return brings the case have been its value on the sixth day of No- clearly within the above quoted section of vember 1860; and unless the said property the ordinance. The levy was nullified by shall sell for the full amount of such valua- the ordinance, and therefore could not tion, it shall be restored to the debtor with- operate a satisfaction of the judgment. out lien." Can there be a doubt as to the authority, 889 validity and binding force of this ordinance? It emanated from a body composed of the wisest citizens of the Commonwealth, representing immediately and peculiarly the sovereignty of the people, chosen for the performance of the most important functions, in a time of great public peril. Their legislation, in the sacredness and supremacy of its authority, is twin sister to the organic law of the Commonwealth. The clause under consideration in no manner undertakes to impair the obligation of contracts, but merely protects the citizen against an undue sacrifice of his property by regulating the exercise of the remedy. It is not obnoxious to any constitutional inhibition. It is entirely within the competency of ordinary legislative power, and a fortiori was within the competency of a convention immediately representing the sovereignty of the people. It seems to me to be a very mild application of the maxim, "Salus populi suprema lex," which has been held at all times to authorize an interference even with the rights of property, ob publicam utilitatem, both under the common and civil law. 2 Kent Com., 339, —(4th edition); Puffendorff De Jure 888 Nat. B. 8, ch. *5; Plate Glass Co. v. Meredith, 4 T. R. 794. "Alibi diximus res subditorum sub eminenti dominio esse civitatis, ita ut civitas, aut qui civitatis vice fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex summa necessitate, quæ privatis quoque jus aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere illi ipsi voluisse sensendi sunt, qui in civilem cœtum coierunt." Grotius, De Jure Belli et Pacis, B. 3, ch. 20, s. 7. The discretion to determine when the state of things exists which justifies the rousing into active energy of this ordinarily dormant but inherent power of sovereignty, must necessarily reside in the political department of the State, and can never be properly the subject of judicial revision. But even if this court should hold that the ordinance *was null and void, it is confidently claimed that the levy made by the sheriff of Monroe did not in any manner satisfy or affect the judgment of the Bank of Virginia v. Gatewood. Where property even of sufficient value to satisfy the execution, is levied on and returned to the defendant, it is plain there is no satisfaction of the writ, either actual or technical. There must be either a sale or a destruction of the defendant's interest in the property levied on to accomplish this result. Walker v. The Commonwealth, 18 Gratt. 13, and cases there cited. Walker v. McDowell, 4 Smedes & Marsh R. 118. If there was no satisfaction of the execution, then the only other mode by which the Bank of Virginia could have lost its recourse on Gatewood was by reason of some act or proceeding on its part in derogation of his rights as a surety. Now, in the first place, there is no proof in the record that Gatewood occupied the position of a surety for Lewis. An endorser is not unfrequently the principal debtor, and the Bank had the right to single Gatewood out and sue him alone. But admitting, for the sake of the argument, that Gatewood was a mere surety, what ground is there for complaint that the Bank did any thing to his prejudice? Nothing of the kind is shown or pretended. The Bank proceeded regularly to obtain its judgment, issued its execution and caused it to be levied on the property of Lewis. It made no agreement with Lewis for indulgence, and gave no directions to the sheriff as to the disposition of the property levied on. If the property was returned to Lewis it was through no agency of the Bank. If the benefit of the levy was lost, it was not only through no laches of the Bank, but in spite of its efforts to the contrary. Gatewood was not hindered from indemnifying the sheriff and compelling him to sell, 890 *nor from filing his bill quia timet. By his silence he acquiesced in the return of the property to Lewis. If the |