MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This is a suit against William N. McVeigh, as indorser of two promissory notes, and the matter in dispute is as to the sufficiency of the notices of dishonor. The notes fell due, one on the 2d and the other on the 23d of August, 1861, at the Exchange Bank of Virginia in Alexandria. The notary, in his certificate of protest, stated that he had delivered "a notice of
At the close of the testimony the court, at the request of McVeigh, charged the jury that "if on or about the 30th of May, 1861, and prior to the maturity of the notes sued on, William N. McVeigh, having previously sent his family, went himself within the Confederate military lines with the intention of not returning to Alexandria during its occupation by the United States forces, and accordingly remained with his family continuously within the Confederate military lines throughout the whole period of the war, and did not return to Alexandria with his family until the year 1874; that such absence at the maturity of said notes, respectively, was known, or, by the exercise of reasonable diligence, must have been known, to the Exchange Bank of Virginia, at Alexandria; that at the time of said maturity the armed forces of the United States and of the Confederate States confronted each other on lines immediately intervening between the city of
This instruction is substantially the same as that considered in Bank v. McVeigh, 98 U.S. 332, and which we held did not present a Federal question. The only difference, even in language, between the instructions in the two cases consists in what is said in this about the establishment and maintenance of the opposing lines of military forces and the prevention of actual intercourse, which was not in the other. No importance was given in the argument, however, to this difference, and it may as well be said now, as it was before, that "All the court below decided was, that by the general principles of commercial law, if, during the late civil war, an indorser of a promissory note abandoned his residence in loyal territory, and went to reside permanently within the Confederate lines before the note matured, a notice of protest left at his former residence in the loyal territory was not sufficient to charge him, if his change of residence was known, or by the exercise of reasonable diligence might have been known, to the holder of the note when it matured." Under the question raised by the charge as given, therefore, we have no jurisdiction.
But the plaintiff asked of the court certain instructions, which were not given, and error is assigned for this. The fourth of these requests presents all the questions relied on, and was as follows:—
"If the jury believe from the evidence that the notes sued on were discounted by the Exchange Bank of Virginia at Alexandria before their maturity, or that they were renewals of notes theretofore discounted; that at the time of discount the makers, indorser, and indorsee were residents of said city; that before the maturity of the said notes the Federal forces had taken permanent possession of said city; that after such possession the indorser, William N. McVeigh, left his residence in said city, with the intention of returning thereto, and went within the Confederate lines to join his family, at the time visiting
The only point presented by this request, not disposed of by the charge as actually given, is that which relates to the ordinance of secession and the proclamations of the President. The plaintiff claimed no "title, right, privilege, or immunity," either under the ordinance or the proclamations; neither did the defendant. The issue in the case was as to the fact of a change of residence by the defendant, not as to his power to make a change. The plaintiff did not claim that by reason of the ordinance, or the proclamation, or even the existence of actual war, the defendant was prevented from abandoning his home in Alexandria and taking up another inside the Confederate lines. Neither did the defendant claim that the ordinance, the proclamation, or the war, of themselves, made the notice left at his former home insufficient. The ultimate fact to be determined was whether, when the notice was left at the house formerly occupied by the defendant, it was left at his place of residence.