Alexandria v. Fairfax

ERROR to the Supreme Court of Appeals of the State of Virginia.

This was an action of covenant, brought in the Circuit Court of the city of Alexandria, Va., by Orlando Fairfax, against the city council of Alexandria, to recover the principal of certain bonds, amounting in the aggregate to $8,700, with the arrearages of interest due thereon.

The following is a copy of one of the bonds:

'No. 35.]

ALEXANDRIA CORPORATION STOCK, $5,200.

'This is due from the common council of Alexandria unto Dr. Orlando Fairfax, $5,200, bearing interest at the rate of six per cent per annum from the first day of July, 1858, payable half-yearly, being stock issued in pursuance of an act of the common council of Alexandria, passed on the twenty-third day of July, 1845, the principal of which is redeemable on the first day of January, in the year 1870, and is transferable only at the office of the auditor of the corporation, in person or by attorney.

'Witness the seal of the common council of Alexandria.

{Alexandria Corporation.}

'W. D. MASSEY, Mayor.

'J. H. MCVEIGH,

'President of Council.

'SAM. J. MCCORMICK, Auditor.'

The defence was that the stock whereof mention is made in the bonds or certificates, and all the right, title, and interest of Fairfax therein, had, with the accrued interest thereon, been condemned to confiscation and sale, under an act of Congress of July, 1862, by a decree of the District Court of the United States for the Eastern District of Virginia, May 4, 1864, and sold by the marshal, who transferred the stock to the purchasers on the books of the auditor of the city. The council recognized this transfer as valid, and issued to the purchasers or their assigns certificates of stock of like tenor and effect. They are still outstanding, and the interest thereon has been paid to the holders of them.

Fairfax was a resident of Alexandria, until the commencement of the rebellion. He then went to Richmond, Va., where he has since resided, taking with him the said bonds or certificates of indebtedness, and he retained possession of them until he brought this suit.

The present controversy turned on the jurisdiction of the District Court. Neither Fairfax nor the city council entered an appearance to the proceedings which resulted in the decree. The order of seizure which the district attorney of the United States for the district within which the city of Alexandria is situate directed to the marshal, with the return made by the latter thereon, is set out in the opinion of this court, and is, therefore, omitted here. The Circuit Court of the city of Alexandria rendered a judgment against Fairfax, which the Supreme Court of Appeals reversed, and rendered one in his favor. The city council thereupon sued out this writ of error.

Mr. S. Ferguson Beach and Mr. Charles E. Stuart for the plaintiff in error cited Miller v. United States, 11 Wall. 268; Tyler v. Defrees, id. 331; Cooper v. Reynolds, 10 id. 308; Brown v. Kennedy, 15 id. 591; P lham v. Way, id. 196; Pelham v. Rose, 9 id. 103; Grignon's Lessee v. Astor, 2 How. 319; Voorhees v. Bank of the United States, 10 Pet. 449; Kempe's Lessee v. Kennedy, 5 Cranch, 173; Williams v. Armroyd, 7 id. 423.

Mr. John Johns, Jr., and Mr. C. W. Wattles for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.