These are its words: "But Congress may, by a vote of two-thirds of each house, remove such disability." Taking the third section then in its completeness, with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of Congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.

It results from this examination that persons in office by lawful appointment, or election, before the promulgation of the fourteenth amendment, are not removed therefrom by the direct and immediate effect of the prohibition to hold office contained in the third section; but that legislation by Congress is necessary to give effect to the prohibition, by providing for such removal. And it results further that the exercise of their several functions by these officers, until removed in pursuance of such legislation, is not unlawful.

The views which have been just stated receive strong confirmation from the action of Congress and of the executive department of the government. The decision of the district judge, now under revision, was made in December 1868, and two months afterwards, in February 1869, Congress adopted a joint resolution entitled "A resolution respecting the provisional governments of Virginia and Texas." In this resolution it was provided that persons "holding office in the provisional governments of Virginia and Texas," but unable to take and subscribe the test oath prescribed by the Act of July 2d 1862, except those relieved from disability, "be removed therefrom;" but a provision was added, suspending the operation of the resolution for thirty days from its passage. The joint resolution was passed and received by the President on the 6th of February, and not having been returned in ten days, became a law without his approval.

It cannot be doubted that this joint resolution recognised persons unable to take the oath required, to which class belonged all persons within the description of the third section of the fourteenth amendment, as holding office in Virginia at the date of its passage, and provided for their removal from office.

It is not clear whether it was the intent of Congress that this removal should be effected in Virginia by the force of the joint resolution itself, or by the commander of the first military district. It was understood by the executive or military authorities as directing the removal of the persons described, by military order. The resolution was published by command of the general of the army for the information of all concerned, on the 22d of March 1869. It had been previously published by direction of the commander of the first military district, accompanied by an order, to take effect on 18th of March 1869, removing the persons described from office. The date at which this order was to take effect was afterwards changed to the 21st of March.

It is plain enough from this statement that persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were

not regarded by Congress, or by the military authority, in March 1869, as having been already removed from office.

It is unnecessary to discuss here the question whether the government of Virginia, which seems to have been not provisional, but permanent, when transferred from Alexandria to Richmond, became provisional under the subsequent legislation of Congress, or to express any opinion concerning the validity of the joint resolution, or of the proceedings under it. The resolution and proceedings are referred to here only for the purpose of showing that the amendment had not been regarded by Congress or the executive, so far as represented by the military authorities, as effecting an immediate removal of the officers described in the third section.

After the most careful consideration, therefore, I find myself constrained to the conclusion that Hugh W. Sheffey had not been removed from the office of judge at the time of the trial and sentence of the petitioner; and that the sentence of the Circuit Court of Rockbridge county was lawful.

In this view of the case, it becomes unnecessary to determine the question relating to the effect of the sentence of a judge de facto exercising the office with the color, but without the substance, of right. It is proper to say, however, that I should have no difficulty in sustaining the custody of the sheriff, under the sentence of a court held by such a judge.

Instructive argument and illustration of this branch of the case might be derived from an examination of those provisions of the Constitution ordaining that no person shall be a Representative, or Senator, or President, or Vice-President, unless having certain prescribed qualifications. These provisions, as well as those which ordain that no senator or representative shall, during his term of service, be appointed to any office under the United States, under certain circumstances, and that no person holding any such office shall, while holding such office, be a member of either house, operate on the capacity to take office. The election or appointment itself is prohibited and invalidated; and yet no instance. is believed to exist where a person has been actually elected, and has actually taken the office, notwithstanding the prohibition, and his acts, while exercising its functions, have been held invalid.

But it is unnecessary to pursue the examination. The cases cited by counsel cover the whole ground, both of principle and authority.1

This subject received the consideration of the judges of the Supreme Court at the last term with reference to this and kindred cases in this district, and I am authorized to say that they unanimously concur in the opinion that a person convicted by a jury, and sentenced in a court held by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon habeas corpus.

It follows that the order of the district judge must be reversed, and that the petitioner must be remanded to the custody of the sheriff of Rockbridge county.

1 Taylor v. Skinner, 2 So. Ca. 696; State v. Bloom, 17 Wis. 521; Ex rel Ballon v. Bangs, 24 Ill. 184.

Supreme Court of Pennsylvania.

THE PITTSBURGH COAL COMPANY v. ALEXANDER W. FOSTER,

ET AL.

The damages ordinarily recoverable for breach of contract are those necessarily following the breach which the derelict party must be presumed to know would be the probable consequence of his failure.

The failure of an engine builder to furnish at a fixed time, according to contract, to a coal company a suitable engine for transporting their coal, entitles them to damages for their expenses in such transportation, with the means they had, or the best they could procure during the period of delay, beyond what they would have incurred with the engine.

But they cannot claim also for the profits in the transportation by engine of the extra quantity of coal they might have transported by it in the same period-it not being fairly inferable that the builder would know that its possession would enable them to mine more coal, and also to haul more.

An interested witness cannot be offered to purge himself of his interest by his own voire dire.

Corporation books do not prove themselves: proof of their true character must be given to authorize their reception in evidence.

At the time of offering evidence some competent purpose should be stated as the ground for its reception, if it be not obviously competent on its face.

ERROR to the District Court of Allegheny county.

J. H. Bailey, for plaintiffs in error.

C. B. Smith, contrà.

The opinion of the court was delivered by

AGNEW, J.-The only question we need discuss in this case is that relating to the measure of damages. The defendants below offered in substance to prove the difference in the expense of transporting the coal carried on their railroad, between horse or mule power and steam-power, and for this purpose to prove how much coal was actually carried over their railroad between the 1st day of February-the time for the delivery of the engine under the contract-and the day when the engine was actually put in running order on the road; claiming that this difference of expense was a loss directly occasioned by the failure to finish and deliver the engine in time.

The learned judge overruled this offer, being of opinion that the measure of damages for the delay was the ordinary hire of a locomotive during the period of the delay. We think that under the circumstances of the case, this was an error. It was in proof, and was also a part of the offer, that the only means the defendants had of transporting their coal was by horses and mules, and it also appeared in the evidence that owing to the gauge of the railroad track and the kind of engine required for their use, it was impossible to have procured for hire an engine to suit their purpose, and that the hire of such an engine was purely a

speculative, and not a practical question, owing to the fact that the witnesses knew of none such to be had.

The true inquiry which arose under these circumstances, was whether the damages thus claimed were the necessary consequence of the failure to perform the contract in time, and whether they were presumptively within the view of the plaintiffs at the time of making their contract to finish and deliver the engine in running order on the defendants' track by the 1st of February. The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: 2 Greenl. Ev. § 253. This rule is well expressed by STRONG, J., in Adams Express Co. v. Egbert, 12 Casey 364. They must be a proximate consequence of the breach, not merely remote or possible. There is no measure for losses of the latter kind. "But on the other hand," he remarks, "the loss of profits or advantages, which must have resulted from a fulfilment of the contract, may be compensated in damages, when they are the direct and immediate fruits of the contract, and must therefore have been stipulated for, and have been in the contemplation of the parties when it was made."

This statement of the rule is quoted with approbation by THOMPSON, J., in Fassler v. Love, 12 Wright 410-11. The subject is also dis cussed at large by myself in Fleming v. Beck, Id. 312-13, and the same rule in substance quoted from Hadley v. Baxendale, 9 Exch. 341 (Wels. Hurlst. & Gordon).

That the loss in this case was immediate, and the necessary conse quence of non-fulfilment, is obvious. The coal company was by the contract to have a finished locomotive adapted to their railroad put in thorough running order upon their track by the 1st day of February. The direct consequence of not getting it was, that they were obliged to continue transporting their coal as before, by horses and mules, until the engine was put there. It is quite as clear also, that this consequence must have been in full view of Foster & Co. when they entered into the contract. The instrument evidencing the agreement was a proposition of Foster & Co. accepted by the president of the coal company. It was directed to James M. Bailey, President of the Pittsburgh Coal Company, and proposed to build a locomotive engine to fit a forty inch track. It was to be built in a workmanlike manner, of the best material, and finished by the 1st day of February then next, and "put in thorough running order on your track on or before that day."

The price, $5500, was to be paid to wit: $1500 on the 16th day of January, "and the balance when the engine is completed and running on your road." Thus the proposition to build the engine shows very clearly that Foster & Co. knew that it was to be used in running on a coal railroad, and upon a track of unusual gauge, and the proof shows that at the time of the making of the contract, engines of the size and character of the one described in the proposition, were not in ordinary use and could not be hired. From the nature of the circumstances Foster & Co., as engine builders, must have known that if they failed to deliver the engine on the track by the day agreed upon, the coal company would be forced to continue transporting their coal by their former means, and consequently would suffer a loss in the difference of expense

VOL. XVII.-24

of transportation between the old mode and the one stipulated for in the

contract.

To this extent, therefore, we think the court below erred in rejecting the testimony. But the superadded offer, when the proposition was renewed, to prove that the defendants could have mined and hauled one-third more coal with the engine than by the old mode, and to show the profits arising thence, was rightly rejected by the court.

While it is obvious that Foster & Co. must have known that their failure would compel the company to continue in the use of their old mode of transportation, it cannot be fairly inferred that they would know that the possession of the engine would enable the company to mine more coal, and also to haul more. This is a possible or remote consequence, but not a necessary one. For aught Foster & Co. could know the defendants were mining to the extent of their ability to operate in the mines; and even could they mine more, it does not follow they must know that the engine would haul more in the same time than the company could do with their horses and mules. The principles governing this offer are stated pretty fully in Fleming v. Beck, 12 Wright 312-13.

The reversal of the judgment renders the rejection of James M. Bailey as a witness unimportant, for on the next trial the charter can be given in evidence showing that the president of the company must be a stockholder, and if he be offered it must be shown that he has since transferred his stock.

Presuming Bailey to have been interested, it was clearly right to reject his oath as the means of divesting himself of his interest. An interested witness cannot be offered to purge himself of his interest by his own voire dire. The refusal to receive the transfer book without evidence of its true character being given, was also right. Corporation books do not prove themselves.

The rejection of Geissip's deposition was also right. At the time of offering it no competent purpose was stated as the ground for its reception, and so far as the court could discover upon its face, it did not seem to be relevant to any such purpose. It is the duty of a party to state the purpose of his offer, if the evidence is not obviously competent on its face. A court is not bound to search for some distant relevancy that may exist, but which cannot readily be discerned without the attention of the court being directed to it.

But for the error as to the true measure of the damages the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.