Septem'r $419.19, was disallowed; and to this Pretlow excepted. 1877. The cause came on to be heard on the 27th of October, Term. 1874, when the court overruled the exception of Pretlow; and he thereupon applied to this court for an appeal; which was allowed. Watson & Perkins, for the appellant. William J. Robertson, for the appellee. MONCURE, P., delivered the opinion of the court. This is a case involving the right of a creditor to recover what is called war interest, notwithstanding the act approved April 2, 1873, which is the same with the provision on that subject contained in the 14th section of chapter 173 of the Code, page 1120. The same question was involved in several cases recently decided by this court, but not yet reported—at least in the regular report of the decisions of the court-having all been decided too late for publication in the last volume of Grattan's Reports. In those cases the question was solved in favor of such right, and it was held that in its application to such a case the act is unconstitutional and void. Therefore it is unnecessary to repeat here the reasons for such a conclusion, which are fully set out in those cases, and it is sufficient in this case merely to refer to them. They are Roberts' adm'r v. Cocke &c.; Murphy v. Gaskins' adm'r; Cecil v. Deyerle &c.; Linkous &c. v. Shafer &c.; Garnand v. Childress &c.; and Kent's adm'r v. Kent's adm'r the first two and last of which cases are reported in the Virginia Law Journal-28 Gratt. 207, 840; the former in the last March number, page 168, and the latter in the last September number, page 556, of that publication-28 Gratt. 775. The jurisdiction of this court Pretlow V. Bailey's ex'x & als 1877. in those cases and this, is independent of any question Septem'r Term. as to the value or amount of the matter in controversy, and rests upon one of the exceptions enumerated in the constitution of the state (article VI, section 2), to-wit: the one which relates to controversies concerning or involving the constitutionality of a law. Pretlow V. Bailey's ex'x & als The court is therefore of opinion that the circuit court erred in overruling, instead of sustaining, the exception taken by the defendant Pretlow to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872; and that so much of the decree appealed from as is in conflict with the foregoing opinion, ought to be reversed and annulled with costs, and a decree rendered in conformity therewith. The decree was as follows: This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that it has jurisdiction of this appeal, and that the circuit court erred in overruling, instead of sustaining, the exception taken by the appellant Pretlow to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872. Therefore it is decreed and ordered, that so much of the decree appealed from as is in conflict with the foregoing opinion and erroneous as aforesaid, be reversed and annulled, and that the appellee, Ann Eliza Bailey, out of her own estate, and the appellee, Ann Eliza Bailey, executrix of Thomas R. Bailey, deceased, out of the estate of her said testator in her hands to be administered, do pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And 1877. Septem'r Term. Pretlow V. ex'x & als this court, proceeding to render such decree as the said circuit court ought to have rendered, in lieu of so much of the said decree as is erroneous and reversed and annulled as aforesaid, it is further decreed and ordered that the said exception taken by the said defendant Pret- Bailey's low to the said report of Commissioner Gordon, be and the same is hereby sustained. And it is ordered that this cause be remanded to the said circuit court of Albemarle county for further proceedings to be had therein to a final decree; which is ordered to be forthwith certified to the said circuit court of Albemarle county. DECREE REVERSED. Septem'r Staunton. LEWIS & al. v. DAVISSON's ex'or. October 11. 1877. L, C & B, partners under the name of L, C & Co., in April, 1862, gave their note to Mrs. D for $862.50, payable the 1st of April, 1864, the last payment of a tract of land. Before it fell due she authorized P as her agent to collect the note and to receive Confederate currency for it. P saw L and so informed him, and a few days after L sent the Confederate currency to P. In the meantime P heard that there was to be a new issue of Confederate notes, and therefore when L's agent brought the notes, P refused to receive them, except upon the express agreement that Mrs. D would consent to receive them. Upon that understanding P received the notes, endorsed a receipt upon the note and delivered it to the agent, who handed it to L, and L tore off the name of the makers. Mrs. D declined to receive the notes and returned them to P, but authorized him to receive payment in the new issue. P took the notes at once to the place of business of L, C & Co., and saw B, who informed him I had the note; but he received the notes and gave Pa paper acknowledging the receipt of $862.50 they had paid Mrs. D, and which she had refused to receive, and concludes: We now owe Mrs. D the above amount, which we will pay in the new issue of Confederate money after the 1st of April next : signing the firm name. P took this receipt and gave it to Mrs. D. Twice in the year B offered to pay P the debt in the new issue; but P informed him he had given the receipt to Mrs. D, and was no longer her agent. In an action based upon the original note-HELD: 1. The delivery by B and reception by Mrs. D of the paper given to P by B, is not a discharge of the note, unless * it was so intended and agreed by Mrs. D; and this must be clearly shown by the defendants. 2. The delivery of the note by P to the agent of L, and its 1877. Septem'r Term. Lewis & al. V. Davis'n's This was an action of debt in the circuit court of Rockingham county, brought by Anne Davisson, and on her death revived in the name of her executor, against John ex'or. F. Lewis, James M. Crawford and Manasses Blackburn, late partners doing business under the name of Lewis, Crawford & Co., to recover the sum of $862.50, which the plaintiff alleged to be due to her upon a note bearing date the 19th of April, 1862, and payable on the 1st of April, 1864. There was a judgment against Blackburn, without defence. Lewis and Crawford filed the pleas of "nil debet" and "payment." And there was a verdict and judgment for the plaintiff for $862.50, with interest at the rate of six per centum per annum from the 27th of January, 1876, till paid. On the trial of the cause, the defendant took three bills of exceptions, the first as to instructions given by the court on the motion of the plaintiff, and the refusal to give one asked for by the defendants; the second to the refusal of the court to give an instruction asked for by the defendant, and giving it with an addition; and the third to the refusal of the court to grant a new trial. In this exception the facts are stated by the court, which are substantially as follows: On the 19th of April, 1862, Lewis, Crawford & Co. executed their note, by which they promised to pay to Anne Davisson the sum of eight hundred and sixty-two dollars and fifty cents on the 1st of April, 1864, the third and last instalment on a tract or parcel of land. Some time before April, 1864, Anne Davisson instructed her agent, James A. Patterson, who had this note in his possession, to apply to John F. Lewis and collect from him VOL. XXIX-28 |