future damages, either as costs of suit or interest, for delay. When the instrument is lodged with the bank for collection, the bank becomes the agent of the payee or obligee to receive payment. The agency extends no further, and without special authority an agent can only receive payment of the debt due his principal in the legal currency of the country, or in bills which pass as money at their par value by the common consent of the community. In the case at bar, only one bond was deposited with the Farmers' Bank. That institution, therefore, was only agent of the payee for its collection. It had no authority to receive payment of the other bonds for him or on his account. Whatever it may have received from the obligors to be applied on the other bonds, it received as their agent, not as the agent of the obligee. If the notes have depreciated since in its possession, the loss must be adjusted between the bank and the depositors; it cannot fall upon the holder of the bonds.

But even as agent of the payee of the first bond, the bank was not authorized to receive in its payment depreciated notes of the banks of Virginia. The fact that those notes constituted the principal currency in which the ordinary transactions of business were conducted in Alexandria, cannot alter the law. The notes were not a legal tender for the debt, nor could they have been sold for the amount due in legal currency. The doctrine that bank bills are a good tender unless objected to at the time, on the ground that they are not money, only applies to current bills, which are redeemed at the counter of the bank on presentation, and pass at par value in business transactions at the place where offered. Notes not thus current at their par value, nor redeemable on presentation, are, not a good tender to principal or agent, whether they are objected to at the time or not.

In Ontario Bank v. Lightbody, 13 Wend. 105, it was held that the payment of a check in the bill of a bank which had previously suspended was not a satisfaction of the debt, though the suspension was unknown by either of the parties, and the bill was current at the time, the court observing that the bills of banks could only be considered and treated as money so long as they are redeemed by the bank in specie.

That the power of a collecting agent by the general law is limited to receiving for the debt of his principal that which the law declares to be a legal tender, or which is by common consent con

sidered and treated as money, and passes as such at par, is established by all the authorities. The only condition they impose upon the principal is, that he shall inform the debtor that he refuses to sanction the unauthorized transaction of his agent within a reasonable period after it is brought to his knowledge: Story on Prom. Notes, §§ 115, 389; Graydon v. Patterson, 13 Iowa 256; Ward v. Evans, 2 Ld. Raym. 930; Howard v. Chapman, 4 Carr. & Payne 508.

The objection that the bond did not draw interest pending the civil war is not tenable. The defendant, Ward, who purchased the land, was the principal debtor, and he resided within the lines of the Union forces, and the bonds were there payable. It is not necessary to consider here whether the rule that interest is not recoverable on debts between alien enemies during war of their respective countries, is applicable to debts between citizens of states in rebellion and citizens of states adhering to the National Government in the late civil war. That rule can only apply when the money is to be paid to the belligerent directly. When an agent appointed to receive the money resides within the same jurisdiction with the debtor, the latter cannot justify his refusal to pay the demand, and, of course, the interest which it bears. It does not follow that the agent, if he receives the money, will violate the law by remitting it to his alien principal. "The rule," says Mr. Justice WASHINGTON, in Conn v. Penn, 1 Peters C. C. R. 496, "can never apply in cases where a creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the debt, because the payment to such creditor or his agent could in no respect be construed into a violation of the duties imposed by a state of war upon the debtor. The payment in such cases is not made to an enemy, and it is no objection that the agent may possibly remit the money to his principal. If he should do so, the offence is imputable to him, and not to the person paying him the money;' Denniston v. Imbrie, 4 Wash. C. C. 395. Nor can the rule apply when one of several joint debtors resides within the same country with the creditor, or with the known agent of the creditor. It was so held in Paul v. Christie, 4 Harris & McHenry's Rep. 161.

Here the principal debtor resided, and the agent of the creditor for the collection of the first bond was situated within the Federal lines and jurisdiction. No rule respecting intercourse with the

enemy could apply as between Marbury, the cashier of the bank at Alexandria, and Ward, the principal debtor residing at the same place.

The principal debtor being within the Union lines, could have protected himself against the running of interest on the other two bonds, by attending on their maturity at the bank, where they were made payable, with the funds necessary to pay them. If the creditor within the Confederate lines had not in that event an agent present to receive payment and surrender the bonds, he would have lost the right to claim subsequent interest.

Judgment affirmed.

United States Circuit Court. District of Virginia.

EX PARTE CÆSAR GRIFFIN.

Where a person was regularly indicted, convicted, and sentenced under proceedings in a court of competent jurisdiction, the fact that the judge who presided at the trial and passed sentence was within the class prohibited from holding office by the Fourteenth Amendment to the Constitution of the United States, does not make the sentence a nullity nor entitle the prisoner to a discharge on habeas corpus. The third section of the fourteenth amendment did not by its own direct and immediate effect, remove from office persons lawfully appointed or elected before its passage, though they may have been ineligible to hold such office under the prohibition of the amendment. Legislation by Congress was necessary to give effect to the prohibition by providing for removal.

The exercise of their official functions by these officers until removed in pursuance of such legislation is lawful and valid.

The government of Virginia formed at Wheeling by the loyal citizens of the state after the passage of the ordinance of secession by the convention at Richmond, having been recognised by the executive and legislative departments of the national government, must be treated by the courts of the United States as the lawful government of the state.

THIS was an appeal from an order of discharge from imprisonment made by the district judge, acting as a judge of the Circuit Court, upon a writ of habeas corpus, allowed upon the petition of Cæsar Griffin.

L. II. Chandler and C. S. Bundy, for petitioner.

Bradley T. Johnson and James Neeson, contrà.

CHASE, C. J.-The petition alleged unlawful restraint of the petitioner, in violation of the Constitution of the United States, by the sheriff of Rockbridge county, Virginia, in virtue of a pretended judg

ment rendered in the Circuit Court of that county by Hugh W. Sheffey, present and presiding therein as judge, though disabled from holding any office whatever by the fourteenth amendment of the Constitution of the United States.

Upon this petition a writ of habeas corpus was allowed and served, and the body of the petitioner, with a return showing the cause of detention, was produced by the sheriff, in conformity with its command. The general facts of the case, as shown to the district judge, may be briefly stated as follows :

The Circuit Court of Rockbridge county is a Court of Record of the state of Virginia, having civil and criminal jurisdiction. In this court, the petitioner, Cæsar Griffin, indicted in the County Court for shooting, with intent to kill, was regularly tried, in pursuance of his own election; and, having been convicted, was sentenced according to the finding of the jury, to imprisonment for two years, and was in the custody of the sheriff to be conveyed to the penitentiary, in pursuance of this

sentence.

Griffin is a colored man; but there was no allegation that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of color.

It was not claimed that the grand jury, by which he was indicted, or the petit jury, by which he was tried, was not, in all respects, lawful and competent. Nor was it alleged that Hugh W. Sheffey, the judge who presided at the trial, and pronounced the sentence, did not conduct the trial with fairness and uprightness.

One of the counsel for the petitioner, indeed, upon the hearing in this court, pronounced an eulogium upon his character, both as a man and as a magistrate, to deserve which might well be the honorable aspiration of any judge.

But it was alleged and was admitted that Judge Sheffey, in December 1849, as a member of the Virginia House of Delegates, took an oath to support the Constitution of the United States, and, also, that he was a member of the legislature of Virginia in 1862, during the late rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner, that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any state; and it was specially insisted that the petitioner was entitled to his discharge upon the ground of the incapacity of Sheffey, under the fourteenth amendment, to act as judge and pass sentence of imprisonment.

Upon this showing and argument, it was held by the district judge that the sentence of Cæsar Griffin was absolutely null; that his imprisonment was in violation of the Constitution of the United States, and an order for his discharge from custody was made accordingly..

The general question to be determined on the appeal from this order is whether or not the sentence of the Circuit Court of Rockbridge county must be regarded as a nullity, because of the disability to hold any office under the state of Virginia, imposed by the fourteenth amendment, on the person who, in fact, presided as judge in that court.

It may be properly borne in mind that the disqualification did not exist at the time that Sheffey became judge.

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When the functionaries of the state government, existing in Virginia at the commencement of the late civil war, took part, together with a majority of the citizens of the state, in rebellion against the government of the United States, they ceased to constitute a state government for the state of Virginia which could be recognised as such by the national government. Their example of hostility to the Union, however, was not followed throughout the state. In many counties, the local authorities and majorities of the people adhered to the national government; and representatives from these counties soon after assembled in convention at Wheeling, and organized a government for the state. This government was recognised as the lawful government of Virginia by the executive and legislative departments of the national government; and this recognition was conclusive upon the judicial department.

The government of the state thus recognised was in contemplation of law, the government of the whole state of Virginia; though excluded, as the government of the United States was itself excluded, from the greater portion of the territory of the state. It was the legislature of the reorganized state which gave the consent of Virginia to the forma tion of the state of West Virginia. To the formation of that state, the consent of its own legislature, and of the legislature of the state of Virginia, and of Congress, was indispensable. If either had been wanting, no state, within the limits of the old, could have been constitutionally formed and it is clear that if the government instituted at Wheeling was not the government of the whole state of Virginia, no new state has ever been constitutionally formed within her ancient boundaries.

It cannot admit of question, then, that the government which consented to the formation of the state of West Virginia, remained in all national relations the government of Virginia, although that event reduced to very narrow limits the territory acknowledging its jurisdiction, and not controlled by insurgent force. Indeed, it is well known historically that the state and the government of Virginia, thus organized, was recognised by the national government. Senators and representatives from the state occupied seats in Congress, and when the insurgent force which held possession of the principal part of the territory, was overcome, and the government recognised by the United States was transferred from Alexandria to Richmond, it became in fact, what it was before in law, the government of the whole state. As such it was entitled, under the Constitution, to the same recognition and respect, in national relations, as the government of any other state.

It was under this government that Hugh W. Sheffey was, on the 22d February 1866, duly appointed judge of the Circuit Court of Rockbridge county, and he was in the regular exercise of his functions as such when Griffin was tried and sentenced.

More than two years had elapsed, after the date of his appointment, when the ratification of the fourteenth amendment by the requisite number of states was officially promulgated by the Secretary of State on the 28th of July 1868.

That amendment, in its third section, ordains that "no person shall be a senator or representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as a