between this case and the decisions of this court above referred to, and how any title to relief can be worked out by the sureties, or any of them, on the authority of those decisions, or otherwise, upon the facts, as I think I have conclusively shown them to be, I confess I cannot comprehend. If I am right as to the facts, I think I am certainly right in my conclusion. If the facts were different, I would have some interesting questions yet to consider; but as they are not, it is unnecessary to notice them. I intended to have reviewed at some length the cases of Baird v. Rice, 1 Call, 18 [1 Am. Dec. 497]; Bullitt v. Winstons, 1 Munf. 269; Steele v. Boyd, 6 Leigh, 547 [29 Am. Dec. 218]; and Ward v. Vass, 7 Id. 135; but I do not think it necessary to do so; and the length of this opinion admonishes me of the propriety of drawing it to a close. Before I do so, however, I must notice one or two other matters.

I have thus far considered the case as if the commonwealth, through her agents, had consented to and concurred with the sheriff and the sureties in the discharge of the levy. But such, I think, is not the fact. Evidently neither the attorney-general nor the auditor knew anything of the executions having been levied when they gave their orders of suspension. The question of levy or no levy was one of doubt upon the facts,at least as to some of the parties,- and it does not appear that any of the facts were communicated to these officers of government. Indeed, it appears that even Keen and Walker were probably under the impression that no levy had been made when they applied by telegraphic dispatch to Richmond for indulgence; for the sheriff proves that they made no objection to the levy, otherwise than they desired the levy delayed until they could hear the result of their application. But however that may be, the attorney-general and auditor, even if they knew when they gave their orders that the executions were levied, did not intend thereby to discharge the levy, but merely to suspend proceedings on the executions; and such is the true construction of their acts. They did not direct the property to be restored to the possession of the defendants. A mere suspension of proceedings on a levied execution does not authorize a restoration of the property to the possession of the defendant, nor release the levy: Fisher v. Vanmeter, 9 Leigh, 18 [30 Am. Dec. 221]. That the auditor did not intend to release the levy of the first execution is shown by the conversation which occurred between the sheriff and the auditor's clerk, when the first executions were returned, from which it

is obvious that the auditor expected the money to be made on the first executions, if not paid on or before the 1st of August. That the act of assembly did not operate a discharge of the levy has already been shown. So that if this view be, as it seems, correct, the release of the levy in this case has resulted, not from any act or consent of the commonwealth or her agents, but solely from a misconception by the sheriff and the sureties of the meaning and effect of the orders of the attorneygeneral and auditor, and act of assembly aforesaid, and from the consequent abandonment of the property by the sheriff, and conversion of it by the sureties to their own use. In this view of the case, the right of the commonwealth to sue out the new executions would, if possible, be still more manifest.

In regard to the last assignment of error, which was not relied on or noticed, if it was not in fact withdrawn, in the argument, to wit, that the judgments rendered against Walker, Keen, and Withers at one time, and the judgments rendered against Watkins at another time, the first process not having been executed as to him, are not joint judgments against all the said parties, whereas the executions are against all the said parties jointly, and therefore do not pursue or correspond with the judgment. If that be any defect at all, it is only formal, and not substantial, and has not injured, but rather benefited, the plaintiffs in error. I therefore think it is not a good ground for reversing the judgment, especially as it does not appear that the objection was taken in the court below. The commonwealth had a right to have her motion against the sureties continued until the notice was served on the principal, and then to take a joint judgment against all; or she had a right to take several judgments against the sureties and the principal, as they were respectively served with notice, as she did; and she might lawfully have sued out several executions on the judgments as they were obtained. But she chose to wait after getting judgments against the sureties until she bad also gotten judgments against the principal in the joint proceeding against all, and then to sue out joint executions against all. I can see nothing objectionable in this, and certainly nothing of which the plaintiffs in error have any reason to complain.

In regard to the right of the judge in vacation to give the sheriff leave to amend his returns, there can be no doubt, I think, but that he has that right, as incidental to the right expressly given him by the code, chapter 187, section 23, to hear

and decide on in vacation a motion to quash an execution. A return on a former execution is generally very material evidence on the hearing of such a motion, and it is often important, in the course of the proceedings, to permit the sheriff to make or amend his return according to the truth of the case, and with a view to its effect upon the decision of the motion. Such permission has always been given by our courts. Bullitt v. Winstons, 1 Munf. 269, is an instance of this kind. When, therefore, the statute gave to the judge in vacation power to quash an execution, it gave him also, by implication, power to permit the sheriff to make or amend his return, as the case may be, on the former execution, and I think the judge did not err in permitting the amendments in this case. But whether we look to the original or the amended returns, the result will not be varied. In either case, we must look also to all the facts of the case as contained in the record, and decide accordingly: Ward v. Vass, 7 Leigh, 135. There is, indeed, no material conflict between either of these two sets of returns and the other facts of the case.

I am of opinion that there is no error in the judgment, and that it ought to be affirmed.

The other judges concurred in the opinion of MONCUBE, President.

Judgment affirmed.

LEVY OF EXECUTION OPERATES AS SATISFACTION WHEN: See the note to Trapnall v. Richardson, 58 Am. Dec. 350, and Cornelius v. Burford, 91 Id. 309, discussing all the points raised in the principal case. In Commonwealth v. Goode, 20 Gratt. 207, and Gatewood v. Goode, 23 Id. 884, 889, the principal case is cited to the point that if property levied on is lost by the negligence or misconduct of the sheriff, the execution is satisfied to the extent of the value of the property taken; but that if the property is merely restored to the defendant, the execution is not satisfied.

DE VOSS v. CITY OF RICHMOND.

[18 GRATTAN, 838.]

MUNICIPAL CORPORATION, IN EXERCISING POWER TO BORROW MONEY and to issue bonds therefor, is not exercising sovereign powers, but is acting merely as a private corporation, and is responsible as such for the act or default of its agent.

PARTY WILL NOT BE CHARGED WITH CONSTRUCTIVE NOTICE unless the circumstances are such that the court can say that it was his duty to acquire the knowledge in question, and that his failure to obtain it was the result of culpable negligence.

PERSON TO WHOM BOND IS ISSUED BY MUNICIPAL CORPORATION is not charged with constructive notice of resolutions of the common council, giving to the officers of the corporation special directions concerning the form of the bonds. MUNICIPAL CORPORATION HAVING POWER TO BORROW MONEY AND ISSUE BONDS therefor cannot avail itself, as against one to whom a bond was issued, and who took it without notice, of the defense that its officers, having apparent authority to issue bonds in the form of the bond in question, exceeded their authority in not issuing that particular bond in a different form.

MUNICIPAL BONDS - MISCONDUCT OR WANT OF AUTHORITY BY OFFICER IN ISSUING AS DEFENSE. —A confederate court confiscated certain city bonds, and by its decree directed the city council to issue bonds in lieu thereof to its receiver. The council, on the assumption that the reissued bonds would be void in case of the suppression of the confederate government, by resolution directed its officers to insert in the reissued bonds a statement that they were issued in lieu of confiscated bonds, and to do this upon every reissue of such a bond. The officers obeyed the direction on the first reissue, but failed to do so on subsequent issues, and the bonds were purchased by one who had no knowledge of their history and character. Held, that the city would be estopped to set up as a defense to an action on the bonds the fact of the officer's misconduct or want of authority in reissuing the bonds in a form which failed to include such statement. MUNICIPAL BONDS MADE TO PASS BY ASSIGNMENT MERELY confer on each successive assignee only an equitable title, and the bonds are subject in his hands to the same defenses to which they would be subject in the hands of his assignor.

BILL against De Voss, Maury, and Otis, alleging that De Voss and Otis each hold a bond for the same sum of two thousand three hundred dollars of the funded debt of the city of Richmond, and that plaintiff is advised that the bond held by De Voss is void, and that the one held by Otis is valid, and praying that the former be surrendered and canceled. It appeared that Otis, being a citizen of Massachusetts prior to the civil war, purchased a bond of the city of Richmond, upon which he received interest to July 1, 1861; that at that date the confederate government, exercising its authority over the city of Richmond and state of Virginia, enacted certain laws sequestrating and confiscating to the use of the confederate states all property within its limits belonging to citizens of the United States as alien enemies; that in a suit in the district court of the Confederate States, by the government of the Confederate States against the city of Richmond, the debt due upon the bonds held by Otis and others was so confiscated, and a decree entered directing said city to issue to the receiver of the confederate government new bonds in lieu of the ones so confiscated; that the council of the city, on the assumption

that such reissued bonds would be void in case of the suppression of the confederate government, by resolution directed its officers in issuing the bonds as directed by the decree, to insert on the face thereof a statement that they were issued in lieu of confiscated bonds, and to do this upon every reissue of the bonds. The officers obeyed the directions upon the first issue, but failed to do so upon subsequent reissues. Maury purchased of the receiver of the confederate government the bond issued in lieu of the confiscated bond of Otis, and had a new bond issued in his name, which bond failed to state that it was issued in lieu of a confiscated bond. De Voss, without knowledge of the history or character of the bond, purchased it of Maury, and had a new bond issued in his name, which bond also failed to state that it was so issued in lieu of a confiscated bond. The remaining facts appear in the opinion.

Page and Maury, and J. Alfred Jones, for the appellants.
Daniel, for the appellee.

By Court, JOYNES, J. The only point decided by the circuit court was that the bond held by De Voss imposed no valid obligation on the city; and the propriety of that decision is the only question upon which our decision has been invoked.

The bill proceeds upon the assumption that the decree of the court of the Confederate States by which the bond held by Otis is alleged to have been sequestered and confiscated, and in pursurnce of which it was sold, did not protect the city against his claim after the suppression of the confederate government. This assumption is controverted by the answer of De Voss, which denies that rights growing up under the laws of that government and the decrees of its courts while it was de facto the government expired with it on its overthrow. This question, however, was not discussed in the argument in this court. The proceedings and decree of the confederate court are not exhibited, nor their existence even admitted by the pleadings; and though the existence of a law for the confiscation of the property of alien enemies is admitted, the special terms of the law do not appear. There are not sufficient materials in the record, therefore, to enable the court to consider and decide upon the legal effect of the decree of confiscation, if we were asked to do so. And accordingly we have not considered that question. I shall assume, for the pur