as the clause in the fourteenth amend574 ment, under consideration, *evidently points to the secession movement as rebellion, and inhibits the payment by the United States, or any state, of all debts contracted in aid of it. The prohibition of payment is by the United States or any state. Therefore it does not extend to debts due from individuals or bodies corporate, as distinguished from bodies politic, or such as constitute, or are a part of the political power. It embraces debts contracted by a state, and of course those which are contracted by counties by authority of the state. itself. Qui facit per alium, facit per se, is a maxim of the law. And the doctrine is well settled that a state can no more impair the obligation of a contract by adopting a constitution than by passing a law. The Homestead cases, JUDGE CHRISTIAN, 22 Gratt. 266, 281-2, and cases cited. If the state could repudiate debts so contracted, it can only be upon the ground of a change of relation which affects her political identity, and which would authorize her as a member of the Union to disclaim the obligation of debts which had been contracted in resistance to the Union. And this is very questionable, as under the Federal constitution she is prohibited from passing any law (which embraces constitutional provisions, as is well settled.) which impairs the obligation of a contract. If it be said that the contract having been made in resistance to the power and authority of the United States, it imposed no obligation on the state, and her repudiation of it in her constitution could not, therefore, be held to be the impairment of the obligation of a contract, that would be conceding that the contract was voidable, antecedent to, and independent of, the constitution, and that its invalidity does not depend upon the constitutional inhibition; and that is what I maintain. It is otherwise as to an inhibition in 573 the constitution *of the United States. If congress may not legislate to avoid a contract, although the provision in the constitution is only an express inhibition to such legislation by the states, upon which it is unnecessary to give an opinion; the states have the power to alter and amend the Federal constitution. They might erase from it the clause aforesaid altogether, or ordain that it shall not be applicable to a law of congress, or they may expressly provide (as they have done by the fourteenth amendment to the constitution, clause four,) that a certain class of contracts shall be null and void; that is, that "neither the United States, nor any state, shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States." Whether or not it was rebellion, is a question which we do not mean now to discuss. From our standpoint we could not view it in that light, but it is evidently so treated in this amendment to the constitution. And if it was rebellion, it consisted in the act of secession and in the measures taken to sustain it. The withdrawal of a state and its citizens from the Union, and from obedience to the constitution and laws of the United States, and the confederation with other states to organize a government independent of, and alien to the government of the United States, and in defiance of its authority, constituted the rebellion, if there was rebellion; and this would depend upon the question, whether the states in thus seceding and organizing, were justified in so doing, by violation of the compact of Union by the other states, who were parties to it. This is a question which I do not propose now to consider, because it is immaterial how it may be decided, as to the point in issue inasmuch It is a conclusion, therefore, which cannot be resisted, that if the contract in question was made in aid of the secession movement, but for which it never would have been made, and was important for the support and maintenance of the Confederacy in its resistance to the power and authority of the United States, its enforcement now falls within the foregoing inhibition of the constitution of the United States. It matters not whether the foregoing amendment to the constitution was just and right or not. Thus it is written. It has been accepted as a part of the constitution of the United States, and it is binding upon all the courts, state and federal. But it is only an authoritative declaration by the United States, in solemn form, of a right which I have endeavored to show belongs to the triumphant party in a civil war, or a war between federal states. This inhibition in the Federal constitution was a matter of great importance to the government of the United States, indeed a requiremeat of state necessity. It is easy to see at a glance how embarrassing it would have been to the government to have restored all the states which had united in resistance to its authority, with the immense burden of debt which they and their several counties and municipalities had contracted 575 *in maintaining the Confederacy. And upon no principle of law or reason or natural right could a refusal on part of the United States be condemned. But this restriction was even more important to the states who resumed their position in the Union, and to their respective counties and their municipalities, than for the United States. For them to have undertaken to pay such debts, as were made necessary by secession, and were in aid of the Confederacy, would have been to assume a burden which would have been oppressive, insupportable, and absolutely ruinous to them. And this would have been really the source of embarrassment to the government of the United States. This restriction imposed on them, in the constitution of the Union, was therefore for their benefit. The failure of the Confederacy, and the incalculable loss of property which it devolved upon its citizens, utterly incapacitated them to assume and pay the accumulation of debt which the states of the Confederacy and their respective counties and municipalities had contracted in their efforts to maintain it. From what has been said, it is manifest that the contract in question is of the class that falls within the prohibition of the fourth clause of the fourteenth amendment of the constitution of the United States, upon which ground alone, if there was no other, it cannot be enforced. It was a contract made with the organ of a Confederate quasi corporation, the county court of a Confederate county. The contract itself was of a novel and unprecedented character, such as would never have been made but for the act of secession, and the formation of the Confederacy, in resistance to the power and authority of the United States. It was not an act of the county court of Dinwiddie, aside from, and inde576 pendent of, its relation to the *Confederacy in the exercise of its ordinary functions. It was only by its relation to, and connection with the Confederacy, that it became necessary, and it was done, and could only be done by an act of the legislature of a state, which was a member of the Confederacy, and united in the organized resistance to the power and authority of the United States. And it was essentially in aid of the Confederacy and of that organized suffered if they had not been supplied with salt, and the Confederacy would have sooner collapsed. And so a besieged city would have been forced to surrender if the besieged could not have been supplied with food. It would certainly be an act of humanity to supply food to the starving. But it could not be addressed to the conqueror as a reason why he should require the man to be paid who furnished salt in the one case. or food in the other, whereby resistance to his power and authority were protracted; that it was an act of humanity to furnish them, and that in so doing he had come to their relief as "angels of mercy." And whilst employed their energies, and very commend- wherewithal to pay. And so they ought to resistance to the United States. If the United States, one of whose methods of reducing the Confederate States to submission of the Confederacy. Others served the to their authority, was to cut off their people 578 Confederacy in other ways outside of from a supply of food, of clothing, of medi- could for the common cause. They should be the army; but all doing what they cine, and all the essentials of living, could have cut off the people of Virginia and of the paid for the salt which they furnished the Confederacy from a supply of salt, an article county court of Dinwiddie, in the performof vital necessity, it would have been effect-ance of their part of the work, in which all ual to the speedy overthrow of the Confed-true men in the state were engaged, to defend the liberties of their country, if the party to eracy. The effect of these contracts was to supply that article of necessity, and to enable whom they sold, a quasi corporation of the the Confederacy longer to resist the power of Confederacy, were now in existence and had the United States. It is too plain for further be paid for salt which they sold to the Condiscussion, that this contract, and all such, federate government, if it were in existence. were made by the county courts in their relation to the Confederacy, and as the But in no just sense are the people of Dinorgans of Confederate quasi corporations in widdie, who paid for all the salt they got, and the interest of the Confederacy, and were never promised to pay Stuart, Buchanan & important. if not essential, for its support Co., bound morally, equitably or legally to and maintenance in resisting the power and pay it again. The only advantage they deauthority of the United States, and were rived from the contract made by the county made by authority of a state, which was in court, beyond what they paid for, was the aid the confederation against the United States. given to the Confederate cause by the furBut it is said it was an act of humanity to nishing of salt, and that was as much to the furnish salt to the suffering Confederates, and advantage of the appellees as to them. If the claim for compensation should not be the appellees must lose it, thousands of our rejected. By another order of the same people toiled and periled their lives, and gave court, provision was made by a loan of money their time, their labor and their fortunes, for on the bonds of the county for the support of the common cause, and got nothing. The soldiers of the Confederacy, who were dis- cause in which all were engaged perished, abled, and of the fathers, mothers, and desolation and ruin were brought upon 577 wives and children of soldiers who the states and their populations, who were were killed or died in the service of consecrated to its success. And it does not their country. Can it be conceived that there seem right that the people who have paid for rests upon the county of Dinwiddie an obli- all the salt they got, and have derived no gation to pay the claims of the appellees, other advantage from the supply of the salt which is more sacred and binding than the to the county, than such as was enjoyed in obligation to pay the former? Yet upon the common with them by the appellees, that a competing doctrine that obligation is can-people who periled their lives in the field and celed, whilst the families of these soldiers who were killed or died in the service, and the soldiers who were disabled in the service of their country, are to be taxed to pay the latter. camp, who were disabled in the service, and the fathers and mothers and wives and children of those who were killed or died in the service of their country-in a word a people But the case cannot be decided on such 579 grounds. Doubtless the people would have who suffered the loss of property *and their almost entire means of sub sistence, in their devotion to the cause which was lost, and which was the common individuals, though they gave aid to the recause of the appellees and themselves, should sistance. Individuals were not responsible for now be required to pay twice for the salt, the war, nor can be recognized as parties in order to make good the losses incurred to it. It must, upon well established princiwithout their fault, by the appellees, in ad- ples of international law, be regarded as a dition to bearing their own burdens and public war-a war inter gentes, and not as a sustaining their own losses. war between individuals. Their contracts may, therefore, be enforced, though they were in aid of the war. There are other reasons which might be given in support of this conclusion, if this opinion were not already too extended. Numerous decisions of the Federal courts have been cited in opposition to positions which are attributed to counsel in argument, and consequences are deduced from those positions to show their absurdity. As I have not assumed or sanctioned any of those positions, I am not responsible for the consequences deduced from them. Nor have I in this opinion assumed any position, I believe, which is in conflict with any of the decisions cited, except that I hold that the Richmond government was during the Confederacy the de jure government of Virginia; and inasmuch as the Federal courts, for the most part, concede that it was a de facto government, the difference of opinion on this point is not material in the decision of this case. If I seem to go further than the Federal courts, in relieving the states and the people who were united in the Confederacy from responsibility, embarrassment and loss, it enures to the benefit of those who suffered the loss of fortune and their almost entire means of subsistence by their devotion to what they believed to be the cause of national independence and liberty. And this should not be surprising when it is considered that the subject is viewed by us from different standpoints. With regard to Jones v. The City of Richmond, 18 Gratt. 517, Town of Danville v. Pace, 25 Gratt. 1, and Miller & Franklin v. City of Lynchburg, 20 Gratt. 330, it would be easy to show by a review of those decisions 580 *that there is nothing in this opinion in conflict with either of them. But it is said that the doctrines of this opinion tend to the repudiation of all debts contracted during the war; and this upon the ground that there is no difference as to the present obligation of debts contracted by individuals, and those contracted by the state or the counties of the state during the war; and that if the latter are not binding and valid now, the former are not. If this is true, the competing view is equally liable to the same objection. For, according to that, contracts made by the state or the counties, by authority of the state, in aid of the rebellion, are valid; and if there is no difference, all contracts made by individuals in aid of the rebellion are invalid. But this court has held otherwise. Bier & Mann v. Dozier, 24 Gratt. 1. The constitution of the United States makes a difference. For the prohibition is limited to debts or obligations incurred by the state or the United States, and does not extend to contracts made by individuals. And I think there is good reason for the difference. It is obvious that the principle upon which the contract is voidable is applies to contracts of the political power wh resisted the authority which is established by the war, and not to contracts in general made by 581 I will notice only one other objection which has been urged against my conclusions. It is, that if the contract in question was not valid and binding on the people of Dinwiddie county before, the act of February 28, 1866 (Session Acts of 1865-'6, p. 187) gives validity to it and lays the people of the county under obligation to fulfill it. I would not indulge in remarks of the slightest disparagement to the legislature which passed this act. It certainly embraced some of our ablest and best men. The lamented death of two of them that I might name I have regarded as a great loss to the state. Yet I cannot indorse as wise all that it did nor all that it did not do. It was assembled soon after the war, in troublous times, when everything was unsettled, and dark, angry clouds hovered over and obscured the political horizon. The times were certainly very unpropritious for calm and unbiased and unconfused legislation. This act shows upon its face that it was hastily, carelessly, and loosely drawn. It undertakes, it seems to me, not only to give validity to contracts made by the state government, but also to contracts made by the Confederate government. I was not aware before that much importance was ever attached to it. It is strange that it has not been relied on more frequently for the settlement of controversies by the courts. I do not remember to have known it to be relied on before, by either party, in any controversy in this, or any other court. If it had never been passed, I hardly think that there would have been any destruction of titles, or ruin of estates, for the want of it; or that the probate of wills, or the acts of executors, admin582 istrators, guardians or other *fiduciaries, would ever have been disturbed by reason of its not having been enacted. And it is my impression that if there had been no such act in our statute book, the bonds of matrimony would have been as firm as they are with it, and the offspring of the marriages as legitimate. It is also my impression that the punishment of felons could not have been made false imprisonment, nor murder-and that the bonds of society would have continued as unbroken as they are, and public morals as secure. And I think so because I do not think that it has ever been held by any tribunal that the acts of legislation and administration during the war, in the usual routine and ordinary course of administration, not in the interest or in aid of the Confederacy, and of the resistance to the power and authority of the United States, were not as valid and binding as they would have been if the states had remained in the Union and there had been no secession. This is my opinion, and I believe it is the opinion of the court. But I hold that the legislature which passed this act was invested with no power to impose such an obligation on the people of the state or the several counties. It had only legislative powers under the constitution. It had no power to pass judicially upon the question of the liability of a county or of the people thereof, to pay such debts, much less to create a liability on them to pay, when none antecedently existed. It is a judicial question which could only be decided by the courts. I I am of opinion, therefore, that the contract in question ought not to be enforced against the people of Dinwiddie county. think there is error also in the order of this court, allowing six per cent. interest when the contract set up by the appellees stipu583 lated *for only three per cent. interest.† I am of opinion that there is error in the judgment of the circuit court, and that the same be reversed. MONCURE, P., concurred in the opinion of ANDERSON, J. STAPLES and BURKS, JS., concurred in the opinion of CHRISTIAN, J. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court did not err in declaring by its decree, that the appellant was liable to the appellees for the claim asserted and proved by them, for salt furnished to the said appellant, under said contract of the 19th May, 1862. But the court is of opinion that the circuit court did err in not scaling the amount of said claim from its nominal to its true value in gold, according to the scale of depreciation of Confederate currency at the time when such contract was made and entered into; and it is decreed and ordered that to this extent the said decree be reversed and annulled. And the court proceeding to enter such decree as the said circuit court ought to have rendered, it is further decreed and ordered, that the appellees 584 against the appellant *two thousand and fifty-two dollars and ninety-four cents, with interest thereon, to be computed after the rate of six per centum per annum, from the 1st of January, 1863, till payment, and their costs by them expended in the recover con The court in the opinion holds that the claim of the appellees "is a valid claim, arising upon a tract made with the county court of Dinwiddie for salt furnished said county, and the claim for which was recognized by said county in writing, and made a matter of record as shown by the following order: "Virginia-In Dinwiddie county court, June 16th, Ordered that the clerk of this court issue a 1863: bond for $3,695.30. payable to Stuart, Buchanan & Co., for salt to be delivered by contract, the said bond to be paid the 1st January, 1866, with interest at three per cent. thereon from the 1st January, 1863." prosecution of their appeal in the said circuit court; and they being the parties substantially prevailing, it is ordered that they also recover against the appellant their costs by them about their defence in this Which is behalf expended in this court. ordered to be certified to the said circuit court of Dinwiddie county. JUDGMENT REVERSED IN PART, BUT AFFIRMED ON THE IMPORTANT POINT. 585 *Southern Mutual Ins. Co. v. Yates. March Term, 1877, Richmond. Absent, ANDERSON and BURKS, JS. I. Fire Insurance-Application for.-The application to an insurance company for insurance upon a building which is granted and a policy issued based upon the application, is a part of the policy. Same Same Statements in Warranties. .1. -In such an application, one question is whether there are any incumbrances on the property, to which the answer is none. This is a warranty, and if there was an incumbrance upon it, the policy is not binding upon the company, unless at the time of issuing the policy they had actual knowledge of the existence of such incumbrances. III. Same-Same-Same-Parol Evidence. If, after the answers to the questions are written in the application, it is signed by the applicant, parol evidence is not admissible to prove that he did not read the application, and no question was asked him as to the existence of incumbrances upon the property. IV. The insured had taken out two policies upon two buildings, which were consumed in the same fire. The company paid one of the policies, but determined to contest the other. In calling for the payment of assessments upon premium notes, the secretary of the company by mistake, called for the assessment on the note of the policy which was contested, instead of upon the other, and it was paid-HELD: 1. Same-Waiver and Estoppel.-If the company knowingly received the assessment with knowledge of the existence of the incumbrance, this would be a waiver of the breach of the warranty whether so intended or not. 2. Same-Same.-But if the company received such assessment under the erroneous idea on the part of its officers that it was paid upon another and totally different note, the right to insist upon the forfeiture would not be in the least affected by such payment and receipt. 586 *This was an action of assumpsit upon a policy of insurance on a building, brought in September 1871 by Snowden Yates against the Southern Mutual insurance company. Yates obtained from the Southern Mutual insurance company two policies of insurance, numbered 1,091 and 1,092, upon two buildings at Orange Courthouse, both of which buildings were consumed by the same fire. The loss on the building secured by the policy 1,092 was paid See monographic note on insurance appended to Mutual Assur. Society of Va. v. Holt & als., 29 Gratt. 612. 588 by the company; but they contested their | which should have been made on the preliability for the loss on the other building, on mium note for policy No. 1.092, and colthe ground that in his application for the lected the same through his own mispolicy, among the written questions put to take; and he did not make out or him was the following: "Is your property collect any assessment upon the premencumbered; by what, to whom, and to ium note given for policy No. 1,092. what amount?" To which his answer was, "None." And after the answers to the questions were all taken down, the paper was signed by Yates. And the company insisted this was a warranty; and there having been at the time a deed of trust upon the building, the policy was null. On the trial of the cause, after the plaintiff had introduced in evidence the policy of insurance and the application for it, which is referred to in the policy, he was introduced as a witness in his own behalf, and stated that the signature to said application was in his handwriting. His counsel then asked him if he had ever read the application for the policy. To which question the defendant by counsel objected: but the court overruled the objection; and the witness said that he had never read the said application either at the time it was prepared or since. The witness was then asked what questions were asked him by the agent of the company at the time he prepared the said application, as to the title to and encumbrances upon the property, and what answers he gave. To this question and answer thereto the 587 defendant by *counsel objected, so far as it might tend to contradict the statement and answers in said application. But the court overruled the objection; and the plaintiff, the witness, answered that the agent of the company asked him in whom the title was, and he replied it was in himself; and that the agent did not ask him any questions as to encumbrances on said property. To the opinion of the court, overruling the defendant's objections to said questions and answers, the insurance company excepted. After the evidence had been introduced the defendant moved the court to give the following instructions: 1. That the application upon which the policy sued on in this cause is based is a part of the policy; and the answer to the ninth question in said application amounts to a warranty on the part of the plaintiff that at the date of the said application the property covered by said policy was not encumbered. 2. If the jury believe from the evidence in this cause, that at the date of the said application, and also of the said policy mentioned in the first instruction, which is asked to be read as a part of this, there was an encumbrance on the said property, either by trust deed, mortgage or otherwise, then there was a breach of the said warranty on the part of the plaintiff, and the said policy was void on that account at its date, although the said incumbrance had been duly recorded; unless they also believe from the evidence that the defendant, at the time of issuing the said policy sued upon in this case, had actual knowledge of the existence of such incumbrance. 3. And if upon the evidence in this cause the said policy mentioned in the first and second instructions, which are asked to be read with this, was void at its date, it was no contract, and there was no sort of obligation under it on the part of the defendant to the plaintiff; and to render the defendant liable to the plaintiff for an insurance on said property, the plaintiff must prove a new or other contract of insurance between him and the defendant, and it must appear that this suit is founded upon such new or other contract. 589 *4. That although the jury may be When the policies of insurance were obtained by Yates he paid a part of the prelieve from the evidence, that the demiums in cash and gave his premium notes, fendant demanded and received of the plaintiff each for $40, for the balance; and in Feb- an assessment on the premium note of the ruary 1872, after this suit was instituted, H. plaintiff given under said policy, after said S. Price, the secretary and treasurer of the breach of the said warranty by the said company, in pursuance of a resolution of the plaintiff, and after the defendant knew of directors, called upon him for $10, an assess- the breach of the said warranty on the part ment on his premium note No. 1,091; and it of the plaintiff, and whilst this suit was was paid by Yates. In relation to this pay-pending, yet such demand and receipt did ment Price, who was examined as a witness not give validity to the policy so as to enby the defendant. stated that his assessment able the plaintiff to recover from the dewas made and collected through mistake; that fendant, if such demand was made and Yates had obtained two policies, one No. money received under a mistake by one of 1,091 and the other No. 1,092; and when wit- the officers of the defendant, and was not ness had made out his book of assessments intended by the defendant to be a waiver of upon premium notes, knowing that the com- the said breach of warranty by the plaintiff, pany had determined to contest the policy but that when the defendant made such dewhich insured a building of the plaintiff mand he believed that he was demanding and which had been burnt, he made a memoran- receiving said assessment on a different dum in red ink opposite to the memorandum premium note of the said plaintiff than the of the premium note given in consideration | one given under the aforesaid policy menof policy numbered 1,092-"burned and con- tioned in instructions No. 1. 2 and 3, which tested"-which should have been endorsed are asked to be read as a part of this. opposite the premium note given under policy No. 1.091; and made an assessment on the premium note given for policy No. 1,091, 5. We ask the court to give the jury the following instruction: That the application for insurance in this case is a part of the |