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Vol. II.)

(No. 5.

BAILEY v. CLARK.

warrant any different meaning to be given to the term capital in the two cases. Nor can any good reason be stated why a distinction should be made between banking corporations and individual bankers in this respect.

Independently of these considerations there would be great practical difficulty in administering the law upon the theory that moneys temporarily borrowed are to be treated as capital and taxable as such. The amounts borrowed from time to time must necessarily vary, and, if they are treated as additions to the capital, the aggregate amount of the capital must be constantly changing. It would, therefore, be necessary for the assessors of the government, in order to determine the capital to be taxed every month, to average the sums borrowed, and in adopting any such course they would be obliged to interpolate into the statute the word average, which was stricken out by the amendment of 1866.

We are satisfied that the term as used in the statute was intended to embrace only the fixed capital employed in the business of banking, as distinguished from deposits and temporary loans made in the regular course of business, and that no distinction is to be made in this respect between the capital of individual bankers and that of banking corporations.

It is undoubtedly true, as stated by the attorney general, that capital used in the business of banking is none the less so because it is borrowed. The mere fact that the money permanently invested in the business is borrowed does not alter its character as capital. The question here is whether money not thus permanently invested, but borrowed temporarily in the ordinary course of business to meet an emergency, is capital ; and we are clear that the term does not, either in common acceptation or within the meaning of the statute, embrace loans of that character.

After controversies had arisen as to the interpretation to be given to the statute upon the question at issue in this case between bankers and the government, Congress passed the Act of 1872, defining the meaning of the terms “ capital employed," in the one hundred and tenth section, and enacted that they “shall not include money borrowed or received from day to day in the usual course of business from any person not a partner of, or interested in, the said bank, association, or firm.” 17 Stat. at Large, 256. This enactment was evidently intended to remove any doubt previously existing as to the meaning of the statute and declare its true construction and meaning. Had it been intended to apply only to cases subsequently arising it would undoubtedly have so provided in terms.

Judgment affirmed.

Vol. II.)

BIER v. DOZIER.

(No. 5.

COURT OF APPEALS OF VIRGINIA.

(To appear in 25 Grattan.)

CONTRACTS OF CITIZENS OF THE CONFEDERATE STATES INTER SE. —

PUBLIC POLICY.

BIER v. DOZIER.

1. During the war neither the law of the United States, nor any policy of their government, was in force in any part of the Confederate States, not in the possession or

under the control of the United States. 2. On the 1st of February, 1865, B., representing himself to be the agent of the Confed

erate States government, to take tobacco into Maryland and exchange it for bacon, applied to D., living near the Potomac River in W. County, to store for him in D.'s barn for the night eighty-four boxes of tobacco. D. being unwilling to do it, B. agreed with him that if he would receive the tobacco in his barn, and should sustain any damage or injury from the forces of the United States in consequence of the tobacco being there deposited, B. would make good all losses he might sustain thereby. Under this agreement the tobacco was deposited in D.'s barn, where it remained until the 17th of March, B. undertaking to pay for any loss D. might sustain thereby. At that time the enemy's gun-boats on the river approaching D.'s house he removed and concealed the tobacco, and his houses and out-buildings and furniture were destroyed by the enemy i

his loss amounting to $6,352. Held: (1.) B. being the agent of the Confederate government, which could enforce obedience upon all within its jurisdiction, the contract was valid, and B. is bound to pay D. for

the loss which he sustained. (2.) If B. was not the agent of the Confederate government, and was prosecuting a private

enterprise, against the laws and policy of that government, D. is not particeps criminis

with B., in an equal degree, if at all, and he is entitled to recover. (3.) To make a contract unlawful as being against public policy or law, it must be mani

festly and directly so; and it is not enough that the contract is connected with some violation of the law, however remotely or indirectly.

.

This is a writ of error to a judgment of the late district court held at Fredericksburg, affirming a judgment of the circuit court of Essex County, rendered in favor of the defendant in error, the plaintiff in the said circuit court, William R. Dozier, against the plaintiffs in error, the defendants in the said circuit court, B. Bier and S. Mann, who, with Samuel Strooke and L. Bowman composed a partnership firm, trading in the name and style of S. Strooke & Co. The action was in assumpit. The declaration contained two counts, and was in substance as follows: The first count stated that the defendants, on the first day of February, 1865, at the county of Westmoreland, in consideration that the plaintiff, at the special instance and request of the defendants, would receive on storage upon his premises, to wit, in his barn, and take care of a large lot of tobacco, the property of the defendants, for their use and at their risk, for a short time, to wit, for the space of forty-eight hours, undertook and promised that they, the defendants, would make good to the plaintiff, and pay him for all loss and damage done to him or to his property by the army of the United States, or any person or persons in the employment of the United States, by reason of said tobacco having been stored upon the said premises, it having been admitted by the defendants that the said tobacco was intended to be transported from

would eight, and a large

Vol. II.]

Bier v. Dozier.

(No. 5.

said premises into the State of Maryland, and that such transportation was forbidden by the government of the United States : That the plaintiff, confiding in said promise and undertaking of the defendants, did then and there receive on storage upon his premises, to wit, in his barn, the said tobacco, and did take care of the same, and afterwards safely deliver it to the defendants: That the defendants did not regard their said promise and undertaking, but deceived the plaintiff in this, to wit, that the said tobacco was permitted to remain upon the premises for a long space of time, to wit, for the space of three months, and until the officers and men on the United States gun-boats and vessels of war on the Potomac River had been informed of the fact that said tobacco was so stored upon the premises of the plaintiff ; and coming in search of the same upon said premises, and failing to find it, by reason of the care and attention of the plaintiff in concealing it, they, the said officers and men, did great damage to the property of the plaintiff, by burning his dwelling-house, furniture, stable, grain, and other property in and upon the said premises, whereby he was put to great expense and loss, &c., in the whole amounting to a large sum of money, to wit, to the sum of $6,352. The second count stated that on, &c., at, &c., in consideration that the plaintiff, at the like special instance, &c., would receive into his possession, upon his premises, in said county of Westmoreland, a large and very valuable lot of tobacco, the property of the defendants, which they were attempting to carry to Maryland for sale, they, the defendants, undertook and promised the plaintiff that they would pay to him any damage or loss sustained by him at the hands of the United States forces, by reason of said tobacco being put into the possession and upon the premises of the plaintiff by the defendants : That the plaintiff did so receive said tobacco into his possession and upon his premises, upon the conditions aforesaid ; and that the United States forces did, having sought for said tobacco and failing to find it, burn and destroy the houses, furniture, and other property of the plaintiff, of great value, to wit, of the value of $6,352 ; of which the defendants afterwards, to wit, on the 10th day of May 1865, at, &c., were duly informed: And that the defendants failed and refused to pay the loss and damage sustained by the burning and destruction aforesaid. Wherefore, the plaintiff said that he was injured and had sustained damage to the amount of $ There was, at the conclusion of both counts, a statement apparently applicable to each, that afterwards, to wit, on the 10th day of May, 1865, in consideration of the premises respectively, the defendants promised to pay the said several sums of money, on request, to the plaintiff ; yet they had not paid the same, or any part thereof, “ to the plaintiff's damage $12,000, and thereupon he brings suit," &c.

The defendants filed a general demurrer to the declaration, and the plaintiff joined in the demurrer; which, upon argument, was overruled. And then the defendants plead not guilty to the first count, non-assumpit to the second, and filed a special plea that they were not partners, as alleged in the declaration. To all these pleas the plaintiff replied generally; and issues being thus joined by the parties, were tried by a jury, which found a verdict for the plaintiff on all the issues, and assessed his damages at $5,937, with interest thereon from the 17th day of March, 1865, till paid ; and judgment was rendered accordingly.

Vol. II.]

BIER v. DOZIER.

[No. 5.

andolicy of thod for the the defen

till the counto the homenting theart of Jan his part laintiff

quantityission to deposit Finand, near night, ate, near the Potomacke and

Two bills of exceptions taken by the defendants to opinions given by the circuit court during the trial of the cause were made a part of the record. The first states that after all the evidence had been given to the jury, the counsel for the defendants moved the court to instruct the jury as follows — that is to say: That if the jury believe, from the evidence, that the contract between the plaintiff and defendants, stated in the declaration, was made for or about any matter or thing which was, at the time, prohibited and made unlawful by any law of the United States, or in violation of the policy of the United States government, then said contract is void, and they must find for the defendants. But the court refused to give the said instruction; and the defendants excepted.

The second bill of exceptions states, in substance, as follows: That after the jury were sworn to try the issues joined, the plaintiff (who testified for himself), to maintain the said issues on his part, proved the following facts, to wit: that in the latter part of January, or the first of February, 1865, two men, representing themselves by the names of Strooke and Bier, came to the home of the plaintiff, situate near the Potomac River, in the county of Westmoreland, near night, and requested of the plaintiff permission to deposit in his barn, until the next morning, a large quantity (about eighty-two boxes) of tobacco; which deposit he declined to allow. They then represented to him that they were taking the said tobacco to Maryland, to be exchanged for bacon for the Confederate States government; and that they had full authority to take the said tobacco to Maryland. The plaintiff then consented to receive the said tobacco until the next day. The said Strooke and Bier then agreed with the plaintiff, that if he would receive said tobacco in his barn, and he should sustain any damage or injury from the forces of the United States, in consequence of the said tobacco being there deposited, they would make good all losses which he might sustain. They were wealthy, and good for any agreement they might make. The weather was very cold, and the river and creek were blocked up with ice. Said Strooke remained at the house of the plaintiff three weeks. While there the plaintiff frequently manifested his uneasiness about the tobacco being on his premises, and was told by said Strooke that if ever he was injured thereby, he would pay all losses which he might sustain. The said tobacco remained in the barn of the plaintiff, on storage, till the 17th of March, 1865, when the Potomac flotilla, under Commodore Parker, made its appearance and began to shell the premises of the plaintiff. The plaintiff, with such assistance as he could get, removed the said tobacco to the woods, and concealed the same ; and it not being found by the forces of Commo· dore Parker, the said forces of the United States government burned the dwelling-house, the barn, stable, and all the houses of the plaintiff, except the overseer's house, all the furniture, except their beds, the agricultural implements, and one year's provisions. The loss of the plaintiff, in consequence of said burning, was not less than $6,352. Between the time of the deposit of the tobacco and its removal, he had interviews with the partners, Strooke, Boreman, Bier, and Mann, each of whom acknowledged himself a member and partner of the firm of Strooke & Co., and all promised him indemnity for any loss he might sustain. After the burning, Bier and Mann came to his house and renewed the promise

Pole miver and the plaintif es iness tabe if ever he he said tobancareb, 1966

the United Stathouses of theeds, the agree

[No. 5.

VOL. II.)

BIER v. DOZIER.

to reimburse him for his loss. Mann stated that Strooke proposed to send plaintiff $5,000 by him, but feared, from the unsettled state of the country, it might be lost. n the 27th of May, 1865, Bier and Mann came to the house of the plaintiff with what purported to be an order from the secretary of the treasury of the United States, indorsed by the president, for the delivery of the tobacco to them; and upon consultation with his friends, he determined to give up the tobacco, though he had previously determined to hold on to it until paid for the loss he had sustained. On motion of the defendant's counsel, the evidence touching the said order was excluded from the jury, unless the order was produced. All the tobacco, except three boxes, which plaintiff bad used, and two boxes of damaged tobacco, and a half a box of sound tobacco given to the plaintiff by the defendants, was delivered to Bier and Mann.

Dr. Harvey also proved substantially the same facts as above. Another witness also proved that Strooke and Bier came to his house, and in conversation with the daughter of the plaintiff, who was staying there, concerning the loss of her father's property, Strooke told her not to be sad, he would build her father a better house than the one he had lost, and fully reimburse to him the loss he had sustained.

On cross-examination of the plaintiff's witnesses, it was further proved, that the plaintiff resided near the Potomac River, and was in the habit of entertaining at his honse refugees from Maryland and Virginia ; that a signal corps of the Confederate States was stationed during the war in one and a half miles from the plaintiff's house, and the members of said corps were frequently at his house; that some of Colonel Mosby's men had been there on one occasion; and the blockade runners had stopped at the plaintiff's house sometimes, though the plaintiff had not been engaged in the blockade business ; that when Strooke and Bier came to the house of the plaintiff with the tobacco, they exhibited to him and a friend stopping with him, Dr. Harvey, a paper writing from an officer of the Confederate States, approved by the secretary of war of the Confederate States, giving Strooke & Co. full authority to carry tobacco into Maryland to exchange for bacon for the use of the Confederate States, which paper showed that Strooke & Co. had given bond to the Confederate States before the said paper was furnished to them; and Strooke stated the bond was for $100,000 or more. And these were all the facts proved in the cause. Thereupon, the defendants moved the court to give the following instructions to the jury : —

If the jury shall believe from the evidence that the consideration of the contract set forth in the declaration was in violation of any statute of the Confederate government, or in violation of its policy, then said contract. is void, and they must find for the defendants.

2. If the jury shall believe that said contract was for an illegal transaction, then said contract is void, and they must find for the defendants.

3. If the jury believe from the evidence that the consideration of said contract is altogether illegal, it is insufficient to sustain a promise, and the agreement is wholly void, whether the law violated be the common law or statute.

4. If the jury believe from the evidence that the said contract was

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