Syllabus.

Mr. J. B. Heiskell, for the motion, cited Lorymer v. Hollister, Strange, 693; 1 Tidd's Practice, 241, 1163; Green v. Watkins, 6 Wheat. 260; Wicket v. Cremer, 1 Ld. Raym. 439; State v. McLean, 8 Heiskell, 289.

PER CURIAM: It is ordered that

The decree of this court of November 26, 1888, be made absolute against the heirs and representatives of Sallie S. Blackburn, deceased.

MENKEN v. ATLANTA.

ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA.

No. 674. Decided April 18, 1889.

The death of the accused in a criminal case brought here by writ of error abates the suit.

THE case is stated in the opinion.

Mr. Hoke Smith for plaintiff in error.

Mr. S. W. Packard for defendant in error.

PER CURIAM: The death of Fritz Menken, the plaintiff in error in the cause having been suggested by Mr. Pope Barrow, in behalf of Mr. Hoke Smith of counsel for the said plaintiff in error, and it appearing to the court that this is a criminal case, it is considered by the court that this cause has abated. Therefore, it is ordered and adjudged by the court that the writ of error in this cause be, and the same is hereby,

Dismissed.

FREELAND v. WILLIAMS.

ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA.

No. 267. Argued April 17, 18, 1889. Decided May 13, 1889. .

The provision in the constitution of West Virginia of 1872 that the property of a citizen of the State should not" be seized or sold under final process

Opinion of the Court.

issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done according to the usages of civilized warfare in the prosecution of the war of the rebellion,' by either of the parties thereto," does not impair the obligation of a contract, within the meaning of the Constitution of the United States, when applied to a judgment previously obtained, founded on a tort committed as an act of public war.

A bill in equity to invalidate a judgment obtained against the defendant for a tort committed under military authority, in accordance with the usages of civilized warfare and as an act of public war and to also enjoin its enforcement, is "due process of law" and is not in conflict with the Constitution of the United States.

IN EQUITY in a state court of West Virginia to enjoin the enforcement of a judgment obtained against the complainant. Decree for the complainant. The defendant brought the case here by writ of error. The Federal question is stated in the opinion of the court.

Mr. W. L. Cole (with whom was Mr. C. C. Cole on the brief) for plaintiff in error.

Mr. Charles J. Faulkner and Mr. Robert White for defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

This case is brought before us by a writ of error directed to the judges of the Supreme Court of Appeals of the State of West Virginia.

We can, perhaps, best present the questions of Federal cognizance, which are supposed to give this court jurisdiction, by a short statement of its history.

David Freeland, the present plaintiff in error, brought, in the Circuit Court of Preston County, in the State of West Virginia, against Joseph V. Williams and his brother Charles Williams, an action of trespass de bonis asportatis for the taking and conversion of cattle which were the property of the plaintiff; and on the 22d day of December, 1865, he recovered a judgment in that court against Joseph V. Williams, for $1110, with interest and costs, there being a verdict in favor of the other defendant. From that judgment the

Opinion of the Court.

defendant took a writ of error, on which it was affirmed in the Supreme Court of Appeals of the State of West Virginia. Williams v. Freeland, 2 West Virginia, 306. The trespass took place while the late civil war was flagrant in that part of the country. The records of the Circuit Court of Preston County, in which this judgment was rendered, have been destroyed by fire, and no transcript of the proceedings of that case is to be found in the record presented to us, except that a certified copy of the judgment of the Supreme Court of Appeals, affirming the judgment of the Circuit Court, is appended as an exhibit to the answer of Freeland made in the suit now under consideration.

The judgment thus recovered remaining unsatisfied, the defendant in that case, Joseph V. Williams, on the 15th day of August, 1883, filed his bill in chancery in the Circuit Court of Preston County, which, as it is short and contains the matter which we are called upon to review, will be here inserted, as follows:

"The bill of complaint of Joseph V. Williams, plaintiff, against David Freeland, defendant, filed in the Circuit Court of Preston County.

"To the Honorable Wm. T. Ice, Judge of the Circuit Court of Preston County:

"The plaintiff complains and says that the defendant instituted in the Circuit Court of said county his action of trespass against the plaintiff and a certain Charles Williams, and on the 22d day of December, 1865, recovered a judgment therein against the plaintiff alone for $1110, with interest thereon from the 4th day of January, 1864, and for the costs of the plaintiff therein expended. The record of said judgment has been destroyed by the burning of the court-house of said county. From said judgment the plaintiff obtained a writ of error and supersedeas, and the said judgment was by the Supreme Court of Appeals, at the July Term thereof, in the year 1867, affirmed; and thereafter, on the day of 1875, the said defendant sued out an execution on said sum of

Opinion of the Court.

$

with interest from the

day of

and for costs and damages as was in said case then provided for by law; that the plaintiff then proceeded to invalidate and have said judgment set aside, according to an act of the legislature of the State of West Virginia, on the day of and said judgment was by the Circuit Court of said county, by order entered in said proceedings, set aside, and a new trial ordered in said original action; that from said order an appeal was taken by said Freeland, and said order was reversed and said proceedings to set aside said judgment were dismissed; and so, therefore, the said original judgment is apparently in force, although, in fact, void, for reasons hereinafter stated. The plaintiff further states that said action in which said judgment was obtained was not an action ex contractu, but was an action ex delicto; that it was, in fact, for cattle or other personal property alleged by the defendant to belong to him taken by the military authorities of the Confederate States, and taken by the soldiery and military authorities aforesaid during the late war between the government of the United States and a part of the people thereof; and the plaintiff says that said judgment was for acts done according to the usages of civilized warfare in the prosecution of said war by the said Confederate States and the military power and authority thereof. The plaintiff further states that during said war he was a citizen of the State of Virginia until the formation of the State of West Virginia, and thereafter was and has been continually since a citizen of the State of West Virginia, and is now a citizen of the State of West Virginia; that he aided and participated in said war in the armies of the said Confederate States from the time he entered the service thereof, in the year 1862, until the termination thereof. The plaintiff further states that he resides in the county of Grant, and is the owner of real estate therein; that said judgment has been docketed in his said county, as he believes, and has occasioned a cloud upon his title to said property. The plaintiff further says that he is advised that said judgment is void, and that his property is not liable to be seized or sold therefor, and, notwithstanding said judgment is void, he is threatened

Opinion of the Court.

and is in danger of having his property so seized and sold to satisfy said judgment, and the value and salable character of his said real estate by reason of the cloud on the title thereof as aforesaid is greatly impaired. The plaintiff further states that he has not full or adequate relief against said judgment, except by this his bill and the due process of law thereby, and by the enforcement of the protection afforded by the 35th section of the 8th article of the constitution of this State in his behalf, and to have said judgment by judicial authority declared void and inoperative. The plaintiff therefore prays that said judgment be declared void; that the defendant be perpetually enjoined and restrained from collecting the same and every part thereof, whether of principal, interest, cost, or damages, and from suing out execution thereon; and that he may have such other relief as the court may see fit to grant. "JOSEPH V. WILLIAMS,

answer.

"By Counsel."

To this bill there was a demurrer by Freeland, and also an The demurrer relies upon the proposition that the 35th section of article 8 of the constitution of the State, which the plaintiff in that case sets up as the foundation of his relief, is in conflict with the 10th section of the first article of the Constitution of the United States, and also with the 1st section of the 14th article of amendment to that constitution, and is therefore null and void. The answer sets out the same matter, and also says that the judgment was for a lot of cattle owned by Freeland and taken and converted by the plaintiff, but not in accordance with the usages of civilized warfare; and that Williams went to trial on the plea of not guilty to the action of trespass for the recovery of the value of these cattle, though the plaintiff might have waived the trespass and declared in assumpsit.

To this there was a replication, and testimony by way of depositions was taken on the issue as to whether the taking, on which the original judgment for the plaintiff rested, was an exercise of belligerent rights, and was done according to the usages and principles of public war. There can be no question