
    THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. THE UNITED STATES.
    [No. 13427.
    Decided March 24, 1884.]
    
      On the Facts.
    
    The C. & O. Railroad perform mail transportation service in 1861. After the war their property and franchises pass to the C. & O. Railway. This last named company brings an action in due time to recover the earnings of the former, which also brings an action, but not till its demand is barred by the statute of limitations.
    I. The State of Virginia “ engaged in war against the United States ” within the intent of the Aet 3d March, 1877 (19 Stat. L., p. 342, 362 ch.), April 17, 1861, on which day the convention passed an ordinance requiring the governor to call out volunteers, and he issued his proclamation, and the State authorities took possession of the custom-house in Richmond.
    
      II.Where no debts due to a corporation are included in terms in a mortgage of its property and franchises, and where the law of the State likewise provides that debts due to a corporation shall not pass to-the purchaser by virtue of a mortgage and sale, a claim against the government for mail transportation services does not pass.
    III. Where there are two corporations distinct in name and adverse in interest, the one having a claim without a suit and the other a suit without a claim, and the party with the suit is in danger of defeat because of a defect of title and the party without a suit is barred, from bringing one by the statute of limitations, the defect cannot be cured by amendment or change of parties though both consent.
    IV. Amendments to substitute new parties as claimants can be allowed only when those sought to be brought in are in privity with those who instituted the proceeding.
    V.There is no privity between two corporations seeking to recover the same thing, if the one was never in law nor in equity the owner of the claim and the other never assigned nor attempted to assign it. Succession in franchises and property creates no privity as to a chose in action not assigned. *
    
      The Reporters'1 statement of tbe case:
    This action the claimant brought by the voluntary filing of their petition. The following are the facts as found by the court:
    I. The claimant is a corporation organized, existing, and doing business under and by virtue of the laws of the States of Virginia and West Virginia, and as such is the successor of the Virginia Central Eailroad Company, late a corporation of the said State of Virginia, and no longer in existence, with all its property in possession or action, rights, privileges, and franchises, including all rights of action, but only to the extent and in the manner set forth in claimant’s last amended petition, filed February 28, 1884, in the following extracts of the mortgage and deed as qualified by the laws of Virginia, which, for convenience, are inserted in this finding:
    
      11 Extract of mortgage executed by the Chesapealce and Ohio Railroad Company, January 15, 1870.
    “The following property, part of which is now constructed and part to be hereafter constructed, purchased, acquired, held, possessed, and owned by the said company, to wit, all that portion of the railroad and the railroad line of the said company from and including the terminus and depot at Eichmond, in the State of Virginia, and thence to the mouth of the Big Sandy Eiver on the Ohio Eiver, in the State of West Virginia, including all of said line of railroad now completed and in process of construction as well as that portion of the same which may hereafter be constructed or completed, including therein the roadway and track, together with all the superstructures, depots, depot-grounds, station-houses, engine-houses, car-houses, freigt-houses, wood-houses, sheds, watering places, workshops, machine-shops, buildings, bridges, tools, machinery, side-tracks, turn-outs, turn-tables, weighing scales, fixtures, locomotives, tenders, rolling-stock, fuel, equipments, and all other property which is necessary or ordinarily used in operating the said railroad, and all rights and privileges of way and transit, and all other rights and privileges which are now or may be hereafter constructed, purchased, acquired, held, possessed, or owned by the said company and pertaining to the said line of railroad, and all corporate rights, privileges, and franchises of said company, together with all and singular the tenements, heredita-ments, and appurtenances- thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, tolls, rents, incomes, issues, and profits thereof, with all the right, title, interest, estate, property, possession, claim, and demand, in law and in equity, of the said parties .of the first part, of, in, and to the same and every part and parcel thereof.
    “ Extract from an indenture made the 1st day of July, 1878, by and between Williams G. Wickham, a special commissioner of the circuit court of the city of Eichmond, in the State of Yirginia, duly appointed in the suit in chancery hereinafter mentioned, and also a special commissioner of the circuit court of the county of Kanawha, in the State of West Yir-ginia, in the shit in chancery hereinafter mentioned, party of the first part, and A. S. Hatch, C. P. Huntington, A. A. Low, Isaac Davenport, junior, and John Gastree, parties of the second part:
    “Now, therefore, this indenture witnesseththa-t the said William C. Wickham, special commissioner, as aforesaid, party hereto of the first part, in consideration of the premises, and of two million seven hundred and fifty thousand dollars in hand paid, and secured to be paid by a deed of trust, bearing even date with these presents, hath granted, bargained, sold, assigned, aliened, released, and confirmed, and by these presents doth grant, bargain, sell, assign, alien, release, and confirm with special warranty unto the said A. S. Hatch, O. P. Huntington, A. A. Low, Isaac Davenport, jr., and John Gastree, for the use, benefit, and advantage of the said corporation, which is hereby created under the name and style of The Chesapeake and Ohio Eailway Company, all and singular the rights, privileges, interests, franchises, lands, tenements, hereditaments, appurtenances, and property of every description, whether real, personal, or mixed, embraced and included in the said judgments and decrees, and the sale under the same, described as follows, that is to say: The entire railroad of the said Chesapeake and Ohio Railroad Company, extending and now in operation from a point on the James River, below Richmond, in the State of Virginia, to a point on the Ohio River, in the State of West Virginia, together with all'its franchises, rights, and privileges, including its franchises for extensions, branches, bridges, and all other rights and privileges whatsoever, to the said company belonging, lands, buildings, machinery, rolling stock, materials, and other property, real and personal, a more particular description whereof is contained in the inventory and reports made by the receiver under the orders of the said courts, that is to say, all and singular the premises embraced in the mortgage or deed of trust to the Board of Public Works of Virginia, executed by the Virginia Central Railroad Company, bearing date on the 1st day of April, 1850, including the rights, privileges, and franchises embraced in the said mortgage or deed of trust; all and singular the premises, rights, privileges, and franchises included and conveyed in and by the trust-deed to H. W. Fry, W. H. McFarland, and James Lyons, executed by the said Virginia Central Railroad Company, bearing date on the 2d day of June, 1854; all and singular the premises, rights, privileges, and franchises included and conveyed in and by the trust-deed to John B. Young and Robert R. Howison, executed by the said Virginia Central Railroad Company, bearing date on the 6th day of February, 1866; all and singular the premises, rights, privileges, and franchises included and conveyed in and by the trust-deed, to Philo O. Calhoun, William Butler Duncan, William Orton, and M. F. Maury, executed by the Chesapeake and Ohio Railroad Company, bearing date the 1st day of October, 1868; all and singular the premises, rights, privileges, and franchises included and conveyed in ana by the trust-deed executed by the said Chesapeake and Ohio Railroad Company, to William Butler Duncan and Philo O. Calhoun, bearing date the 15th day of January, 1870; and all and singular the premises, rights, privileges, and franchises included and conveyed in and by the trust-deed executed by the said Chesapeake and Ohio Railroad Company to the said Philo O. Calhoun and William K. Kitchen, bearing date the first day of October, 1872; and all other property of every kind and description, if any, of which the said corporation was possessed at the time of the said sale, in accordance with the statutes in such case made and provided.”
    Sections 44 and 45, chapter 61, of the Code of Virginia, 1873, provide as follows:
    “ 44. If a sale be made under a deed of trust or mortgage executed by a company on all its works and property, and there be a conveyance pursuant thereto, such sale and conveyance shall pass to the purchaser at the sale, not only the works and property of the company as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it. Upon such conveyance to the purchaser the said company shall ipso facto be dissolved. And the said purchaser shall forthwith be a corporation by any name which may be set forth in the said conveyance, or in any writing signed by him and recorded in the court in which the conveyance shall be recorded.
    “ 45. The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights, and privileges, and perform all such duties as would have'been had or should have been performed by the first company but for such sale and conveyance, save only that the corporation so created shall not be entitled to the debts due to the first company, and shall not be liable for any debts of or claims against the said first company which may not be expressly assumed in the contract of purchase, and that the whole profits of the business done by such corporation shall belong to the said purchaser and his assigns.
    “ Sec. 46. Old company subject to 31 st section of 56th chapter.— The debts due to and by, and claims against the said first company mentioned in the preceding section shall be subject to the provisions contained in the 31st section of the 56th chapter, and the said company, notwithstanding its dissolution aforesaid, shall, as to said debts and claims, have the power and perform the duties prescribed by that action.” (Code of Virginia, 1873, chap. 71, sections 44, 45, 46, pp. 585-6.)
    The thirty-first section of the fifty-sixth chapter, here referred to, is as follows:
    “ Sec. 31. Disposition of its property when the corporation is dissolved; it may sue and be sued, &c. — When any corporation shall expire or be dissolved, or its corporate rights and1 privileges shall have ceased, all its works and property and debts due to it shall be subject to the payment of debts due by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before, for the purpose of collecting debts due to it, prosecuting rights under previous contracts with it, and enforcing its liabilities and distributing the proceeds of its works, property, and debts among those entitled thereto.” (Code of Vir- ■ ginia, 1873, chap. 56, see. 31, p. 543.)
    At an early day after the passage of the Sundry civil appropriation Act March 3,1877 (19 Stat. L., 344, 362, ch. 105), which contains a certain appropriation of $375,000, referred to in the claimant’s petition, the Secretary of the Treasury issued an order that no payments should be made out of that appropriation until all claims covered by its terms should have been received and adjusted, and if the appropriation should prove insufficient, they should then be paid pro rata. In consequence of this order no claims were adjusted within two years of the date of the act, and the appropriation was therefore covered into the Treasury under the requirement of section 5 of the Legislative, executive, and judicial appropriation Act June 20, 1874 (18 Stat. L., ch. 328, p. 85).
    II. Said Virginia Central Railroad Company carried the mails of the United States by authority of the Post-Office Department continuously from January 1, 1861, to May 31,1861, on its railroad known as route No. 4381, from Richmond, in the State of Virginia, to Selma, in the State of Virginia; and said mails had'been previously so carried between those points continuously from July 1, 1859.
    The service of said Virginia Central Railroad Company in carrying said mails on its said railroad for the quarter ended March 31, 1861, was recognized by the Postmaster-General by the following order, dated April 1, 1861':
    “April 1, 1861. — Recognize service of the Virginia Central Railroad Company in conveying mails between Richmond and Selma (daily) to Gordonsville, six times a week, thence to Staunton, and three times a week thence to Selma, for quarter ended 31st March, 1861, at the rate of $21,408.33 per annum, and refer to the Auditor to adjust, subject to fines and deductions.”
    The same was audited at $4,288.91.
    The rate of $21,408.33 a year' named in the above order was the reasonable value of the service. The service for the remainder of the time for which payment is claimed, viz, from April 1, 1861, to May 31, 1861, inclusive, is certified by the Post-Office and Treasury Departments to have been performed.
    . A deduction by the department of $153.15 is chargeable against the service rendered subsequent to April 1, 1861, and $464.27 was paid thereon to the Virginia Central Railroad Company by the postmasters along the route.
    III. The following general order discontinuing, the postal service in Southern and border States was issued by the Postmaster-General under authority of the act of Congress approved February 28,1861 (12 Stat. L., 177, 178):
    “ May 27, 1861.
    “ Ordered: All postal service in the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas to be suspended from and after the 31st inst. Letters for offices temporarily closed by this order will be forwarded to the Dead-Letter Office, except those for Western Virginia, which will be sent to Wheeling.”
    The following special order was issued in regard to the aforesaid route of the Virginia Central Railroad Company :
    “ May 27, 1861. — Discontinue service from and after 31st May 1861, till the same can be safely restored (per Postmaster-General’s printed notice of this date, acting under law of Congress of 'February 28,1861.)”
    In accordance with the above orders said mail service of the United States was discontinued on said railroad after May 31, 1861.
    
      “Extract from the report of the Confederate postmaster-general, April 29, 1861.
    “ (Circular letter No. 3.)
    “ Post-Office Department,
    “ Montgomery,-, 1861.
    “ Sir : All postmasters and other employés in tbe postal service are directed to continue the performance of their respective duties as such, and render all their accounts and pay all moneys to the order of the government of the United States as they have heretofore done, until the government of the Confederate States shall be prepared to assume the entire control ' of its postal affairs.
    “ The congress of the Confederate States has, by an act approved March 15, 1861, provided ‘that the postmaster-general shall have power to issue circular instructions to the several postmasters and other officers still performing service under the appointment of the United States, in order to enforce the rendition of the proper accounts and payment of the moneys collected by them per account of the United States, until the postmaster-general shall have issued his proclamation announcing that the former service is discontinued and is replaced by the new service organized under the authority of this government.’
    “ In order that you may be enabled to comply strictly with the foregoing direction, issued in conformity with the authority conferred by said act, your attention is specially directed to the regulations of the Post-Office Department of the United States, embraced in chapters 19, 20, 21, 22, 23, and 26, of the volume of laws and regulations issued loth May, 1859.
    “The post-office department of the Confederate States will be organized as soon as practicable; but the causes of delay incident to its organization are such as to place it out of my power to determine definitely when the new service will be substituted for the old.
    “Any attempt to mix the einployés of the two governments in the same service would be wholly impracticable, and no removals or appointments of postmasters or others in the postal service will be made by this department, nor will it receive returns relating to or moneys derived from'the postal service until it shall assume the entire control of the service.
    “ If the government of the United States should cease to carry on this service before thi-i department shall be organized and prepared to take charge of it, mo great shock to the public interests will be produced by such a course, as the postmaster-general is authorized to continue provisionally, by proclamation, the present postmasters and others in the postal service in office, and to continue existing contracts for carrying the mails until new appointments and new contracts can be made.
    “ We must regard the carrying of our mails at this time by that government as a great public.necessity to the people of both governments, resulting from their past intimate political, commercial, and social relations,-and alike important to the preservation of the present interests of the people of both countries; and while that government, by its action, consults such considerations, our government and people should act with the same high regard for great public interests. Such a course on our part, springing from such motives, will preserve the character of our people without impairing the dignity of our (Government, and may lead to the transfer of our postal service from the control of the old to that of the new government with far less injury to the people of both than would necessarily flow from precipitate and inconsiderate action on the part of either.
    “ You will please acknowledge the receipt of this circular.
    “ I am, very respectfully, your obedient servant,
    “ John H. Eeagan,
    
      “ Postmaster-General.
    
    “ To --, Esq., Postmaster at-.”
    “ Extract from report of the Confederate postmaster-general,
    
    27 Nov., 1861.
    “ Post-Oeeice Department,
    “ Richmond, Va., Nov. 27, 1861.
    “ Sir: I have the honor to submit the following statement of the condition of the business of the post-office department:
    “On the 29th day of April last I had the honor of submitting to you a report of the condition and progress of organization of the post-office department, and of presenting a plan for the organization of its several bureaus and of the office of auditor of the treasury for the post-office department, and of suggesting such changes and modifications in the laws relating to the postal service as our new condition required, and of asking for authority to assume the entire control of the postal service in the Confederate States.
    “Under the provisions of the first section of the act of congress of May 9th, 1861, ‘to amend an act vesting certain powers in the postmaster-general, approved March 15th, 1861,’ the requisite authority was given to him to issue his proclamation fixing a day on which he would assume the control of the postal service. Pursuant to that authority, the following proclamation was issued on the 13th day of May, fixing the first day of June for the commencement of the service, to wit:
    “‘■Whereas by the provisions of an act approved March 15, 1861, and amended by the first section of an act approved May 9, 1861, the postmaster-gen eral ‘is authorized, on and after a day to be named by him for that purpose, to take the entire charge and direction of the postal service in the Confederate States,’ and all conveyance of mails within their limits from and after such day except by authority of the postmaster-general is hereby prohibited:
    “ ‘ Now, therefore, I, John H. Reagan, postmaster-general of the Confederate States of America, do.issue this my proclamation notifying all postmasters, contractors, and special and route agents in the service of the post-office department and engaged in tiie transmission and delivery of the mails, or otherwise in any mariner connected with the service within the limits of the Confederate States of America, that on and after the first day of June next I shall asRume the entire control and direction of the postal service therein. And I hereby direct all postmasters, route agents, and special agents within these States, and now acting under the authority and direction of the Postmaster-General of the United States, to continue in the discharge of their respective duties, under the authority vested in me by the congress of the Confederate States, in strict conformity with such existing laws and regulations as are not inconsistent with the laws and constitution of the 'Confederate States of America, and such further instructions as may hereafter be issued by my direction. And the said postmasters, route agents, and special agents are also required to forward to this department, without delay, their names, with the names of the offices of which they are postmasters (giving the State and county), to be directed to the “chief of appointment bureau, post-office department, Montgomery, Alabama,” in order that new commissions may be issued under the authority of this Government; and the postmasters are hereby required to render to the Post-Office Department, at Washington, D. C., their final accounts and their vouchers for postal receipts and expenditures up to the 31st day of this month, taking care to forward with said -accounts all postage-stamps and stamped envelopes remaining on hand belonging to the Post-Office Department of the United States, in order that it may receive the proper credits therefor in the adjustment of their accounts; and they are further required to retain in their possession, to meet the orders of the Postmaster-General of the United States for the payment of mail service within the Confederate States, all revenue which shall have accrued from the postal service prior to the said 1st day of June next,
    “ ‘All contractors, mail messenger!?, and special contractors for conveying the mails within the Confederate States, under existing contracts with the Government of the United States, are hereby authorized to continue to.perform such service under my direction from and after the day last above named, subject to such modifications and changes as,may be found necessary, under the powers vested in the postmaster-general by the terms of said contracts and the provisions of the second section of an act approved May 9,1861, conformable thereto. And the said contractors, special contractors, and mail messengers are required to forward without delay the number of their route or routes, the nature of the service thereon, the schedule of arrivals and departures, the names of the offices supplied, and the amount of annual compensation for present service, together with their address, directed to the “ chief of the contract bureau, post-office department, Montgomery, Alabama.”
    “‘Until a postal treaty shall be made with the Government of the United States for the exchange of mails between that Government and the Government of this Confederacy, postmasters will not be authorized to collect “ United States postage on mail matter sent to or received from those States; and until supplies of postage-stamps and stamped envelopes are procured for the prepayment of postage within the Confederate States” all postages must be paid in money, under the provisions of the first section of an act approved March 1st, 1861.
    “ ‘ Given under my hand and the seal of the post-office department of the Confederate States of America, at Montgomery, Alabama, the 13th day of May, in the year 1861. '
    [seal.] ' “‘John H. Reagan,
    ‘ ‘ ‘ Postmaster-GeheraU ”
    In accordance with the above-cited circular and proclamation the Confederate government took charge of the postal service of said Virginia Central Railroad on the 1st day of June, 1861.
    IY. “AN ACT to collect-, for distribution, the moneys remaining in the - several post-offices of tbe Confederate States at the time the postal service was taken in charge by said government.
    “ The Congress of the Confederate States of America do enact, That it shall be the duty of the postmaster-general to collect all moneys clue from the several postmasters within the Confederate States, and which they had not paid over at the time the Confederate States took the charge of the postal service, and the several postmasters are hereby required to account to the general post-office of this government under the same rules, regulations, and penalties that were prescribed by the law under which said moneys were received.
    “Sec. 2. The moneys so received shall be kept separate and distinct from the other funds of the post-office department, and shall constitute a fund for the pro rata payment of claims for the postal service which accrued before the postmaster-general took charge of the postal service in the States respectively comprising this Confederacy, as may hereafter be provided.
    “Sec. 3. It shall be the duty of the postmaster-general to make proclamation that all persons who are citizens of the Confederate States of America, and who may have rendered postal service in any of the States of this Confederacy, under contracts or appointments made by the United States Government before the Confederate States Government took charge of such service, shall present their claims to his department, verified and established according to such rules as he shall prescribe, by a time therein to be set forth not less than six months, aud requiring the claimant to state, under oath, how much has been and the date of such payments, on account of the contract or appointment under which said claim occurred, and what fund or provision has been set apart or made for the further payment of the whole or any portion of the balance of such claim, by the Government of the United States, or of any of the States; and they shall also state, on oath, whether they performed fully the service according to their contracts or appointments during the time for which they claim pay, and if not, what partial service they did perform, and what deductions have been made from their pay, so far as they know, on account of any failure, or partial failure, to perform such service; and the postmaster-general shall, as soon as he shall have collected such moneys from said postmasters, and ascertained the amount of claims against the post-office department and the amount received respectively by the claimants as aforesaid, and the provisions, if any, for future payment, make a report of the same, so that future action may be taken thereon as respects the distribution.
    “ Sec. 4. All claims for postal service required to be presented by this bill shall be barred as against this fund unless presented within six months after the proclamation of the postmaster-general shall have been made.
    “ Approved August 30, 1801.”
    “AN ACT to pro vide for the payment, of sums ascertained to be due for postal service to citizens of the Confederate States by the postmaster-general.
    “ The Congress of the Confederate States of America do enact, That the postmaster-general of the Confederate States do proceed to pay to the several persons, or their lawfully authorized agents or representatives, the sums respectively found due and owing to them for postal service rendered in any of the States of this Confederacy, under contracts or appointments made by the United States Government, before the Confederate States Government took charge of such service, as the said sums have been credited and ascertained by him under the provisions of an act entitled ‘An act to collect for distribution the moneys remaining in the several post-offices of the Confederate States at the time the postal service was taken in charge by said government,’ approved the thirtieth day of August, 1861; but the sums authorized by this act to be paid are only the balances found due after all proper deductions shall have been made on account of previous payments made by the United States, or any of the States, or of available provisions made in whole or in part for such payment by said government, or of any of the States, and after making all proper deductions for failures or partial failures to perform the service according to their several contracts or appointments during the time for which they claim pay: Provided, That the provisions of this act shall only extend to loyal citizens of the Confederate States.
    “Approved September 27, 1862.”,
    In pursuance of these acts the Confederate government settled and paid up to September 30,1863, claims of the character described to the amount of $502,017.19.
    It does not appear from the evidence thereon whether the claim of the Virginia Central Eailroad for the transportation of the United States mails from January 1 to May 17, 1861, was or was not paid by the Confederate government.
    It does appear that the offices of the said company were in Eickmond, Va., during the rebellion, and located within five blocks of the Confederate capitol and the Confederate post-office department; that the said company was largely engaged in transporting troops, freight, and mails for the Confederate government, and receivedlarge and frequentpayments for its services from time to time;, and that the president of the company was in the habit of keeping himself informed of the jmblic acts of the Confederate government concerning postal matters.
    The books and accounts of the Virginia Central Eailroad Company were kept in accordance with the above-mentioned discontinuance of the postal service by the United States Post-Office Department on May 31, 1861, and its resumption by the Confederate post-office department on June 1, 1861; and all postal service to the 31st of May, 1861, was charged to the United States Post-Office Department; and all postal service from and after the 1st of June, 1861, was charged to the Confederate post-office department.
    The books of the said Virginia Central Eailroad Company during the entire period of the war were regularly kept, and show continuous transactions with the Post-Office Department of the United States, and of the Confederate States, as well as other financial transactions with the Confederate States, They contain no entries or other evidence showing any payments by the Confederate States government or by any State in rebellion for mail service performed prior to June 1, 1861. Said books have been produced before the court, verified by the oath of the treasurer of the claimant, who was also treasurer of the Virginia Central Eailroad Company before and during the war, and of said Virginia Central Eailroad C.ompany and its sue-, cessors, including the present claimant, continuously since the war.
    No evidence of any payment by the Confederate States government of any of the moneys claimed in this case has been found on the files of the Post-Office Department of the United States or the War Department of the United States, although such files have been searched for a record of such payment.
    
      Mr. George A. King for the claimant.
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendant.
   Scofield, J.,

delivered the opinion of the court:

June' 1, 1861, the United States were indebted to the Virginia Central Eailroad for carrying the mail in the State of Virginia from January 1,1861, to May 31,1861, over aud above all credits, in the sum of $7,239.54.

Prior to March 3, 1877, this whole demand was barred by the statute of limitations. At that time so much of it as originated before the State of Virginia “ engaged in war against the United States” was revived and brought within the jurisdiction of the court in the following manner:

“By the act of March 3, 1877 (19 Stats. L., 362,), Congress appropriated—
“ ‘ Three hundred and seventy-five thousan dollars to pay the amount due to mail contractors for mail se vice performed in the States of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Texas, Tennessee, Virginia, and West Virginia, for the years 1859, 1860, and 1861, and before said States respectively engaged in war against the United States. * * * Provided, That any such claims which have been paid by the Confederate States government shall not be again paid.’
“In order that the claims embraced in this appropriation might be paid pro rata, in case it should be found insufficient to cover them all, the Secretary of the Treasury directed that none should be paid until all should have been received and adjusted. In consequence of this order no claims were paid within two years. The whole appropriation, as the law requires, was therefore returned to and covered into the Treasury. The claimant sues to recover the amount to which he might have been entitled under the lapsed appropriation.
“In Hukill's Case (16 C. Cls. R., 562) this court held that the rights of parties provided for in this appropriation were not lost by its return to the Treasury, but remained subsisting rights which this court had jurisdiction to enforce. That case also decided that the legislation of the Confederate States created a presumption that contractors on routes within the insurrectionary States were paid by that government, which presumption the claimant must, as a condition precedent to recovery, in some measure rebut.”

All the facts tending to overthrow such presumption, in the case at bar, are set forth in finding IV, but no opinion thereon is now given by the court.

At what time Virginia “ engaged in war against the United States” is more a question of fact and'history than of law.

‘ In January, 1861, the legislature passed an act providing for the assembling of a convention to consider the question of secession. The convention assembled February 13,1861, and on April 17,1861, passed the ordinance of secession with this provision: “This ordinance shall take effect and be an act as of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken on the fourth Thursday in May.” It was ratified on that day. April 16, 1851, the governor of the State refused to furnish its quota of volunteers called for by the President, and concluded his letter of refusal as follows: “You have chosen to inaugurate civil war, and having done so we will meet it in a spirit as determined as the administration has exhibited towards the South.” April 17, 1861, the convention passed an ordinance requiring the governor to “ call out as many volunteers as might be necessary to repel invasions and protect the citizens of the State.” In pursuance thereof the governor, on April 16,1861, did issue a proclamation reciting the supposed grievances against the United States, and ordering “ all volunteer regiments and companies to hold themselves in readiness for immediate orders, and to report at once to the Adjutant-General their organization and numbers, and prepare themselves for efficient service.” On the same day the State authorities took possession of the custom-house at Richmond, and soon after of the navy-yard at Norfolk and the arsenal at Harper’s Ferry. April 24, 1861, the convention placed the military forces of the State under the control of the President of the Confederacy, and on the next day adopted the provisional constitution of the Confederate States. By the subsequent ratification of the ordinance all these preparations for and declarations and acts of war, and seizures of United States property, were also ratified.

From these facts the court is of the opinion that Yirginia should be held to have “ engaged in war against the United States” April 17, 1861.

The amount earned by services in carrying the mail over and above the credits prior to April 17, 1861, was $4,682.31.

By a simple change of name the Virginia Central Railroad Company became the Chesapeake and Ohio Railroad Company, and in the latter name was entitled to recover the amount due from the United States. Upon this question there is no dispute. But the Chesapeake and Ohio Railroad Company is not the claimant of record.

The Chesapeake and Ohio Railway Company is the party on record, and derives whatever title it has to the claim through the mortgage sale and deed, as shown in Finding I. Several sections of the Code of Yirginia affecting the case are, for convenience, also printed in finding I. From these documents it appears that no debts due the Chesapeake and Ohio Railroad Company were included in the mortgage, sale, or deed. By the Code of Yirginia, as shown in finding I, it is also provided that debts due to a corporation shall not pass to the purchaser by virtue of a mortgage and sale. It can hardly be doubted, therefore, that the claim still belongs to the Chesapeake and Ohio Railroad Company and not to the claimant of record. In this view of the case no question under section 3477 of the Revised Statutes is involved, because no assignment has been made or attempted.

A suit now begun in the name of the Chesapeake and Ohio Eailroad Company, the legal and equitable owner of the claim, would be defeated by the statute of limitations.

To avoid this difficulty two motions, alternate in character, have been made to amend the petition. One proposes to insert the Chesapeake and Ohio Eailroctd Company for the use of the Chesapeake and Ohio Raib«M/ Company, and the other to strike out the latter name and insert the former.

Here we have two parties distinct in name and adverse in interest, but both consenting to the motions: The one party has a claim without a suit, and the other a suit without a claim. The party with a suit is in danger of defeat because of defect of title, and the party without a suit is forbidden by the statute of limitations to begin one now. To bring the suit and claim together so as to avoid failure of title on the one hand and the statute of limitations on the other is the object of the motions. One motion proposes to assign in effect, though not in form, the claim to the present suitor, and the other to assign the suit to the owner of the claim.

We do not see our way clear to allow either motion.

In the Thomas Case (15 C. Cls. R., 343), cited by the claimant in support of the motion, certain rules are laid down governing amendments for the introduction of new parties. The first rule there stated is that, “ The court will refuse amendments when they propose to introduce new parties, not in privity of interest with those who instituted the proceedings.” In that case the claim belonged to the estate of John H. Thomas, deceased. His widow, who was sole executrix and principal legatee, brought the suit in her own name. The amendment proposed to add “ executrix of John H. Thomas.” About the rule above stated there appears to have been-no disagreement in the court, but whether the facts of that case came within the rule was the subject of difference. Upon that question the chief justice gave a vigorous dissent, and Judge Nott said, “As the diversity of opinion which exists, concerning the power of the court to allow this amendment, shows that the question is a doubtful one, I am of the opinion that, for the purposes of a review in the Supreme Court, the amendment should be allowed, as of course.” It cannot well be doubted that the rule above stated is a correct one, whatever may be thought, of its application to the facts of that case. That case had been before the court (12 C. Cls. R., 278) on a similar motion, but based upon a statement of facts somewhat different. The same rule was laid down there. Judge Nofct, speaking for the court, saidr

u In numerous cases under the abandoned and captured property act, such changes of parties have been allowed after the jurisdictional period for bringing such suits has expired, but in all of them * * * the party substituted possessed some legal relations concerning the thing in suit, with the party who, in due time, instituted the action.”
At that time the motion to amend was dismissed $ two of the judges dissenting.

In the case of Payan (7 C. Cls. R., 401), cited by the claimant in support of the motion, the suit was begun in the name of the equitable owner, and the amendment allowed the party holding the legal title to be placed upon record for the use of the petitioner. In that case the privity of interest existed, as required by the rule above cited. A similar privity of interest was shown in Green’s Case (7 C. Cls. R., 496), also cited in support of the motion.

In the case at bar there is no privity of interest whatever between the two corporations. The claimant was never in law or equity the owner of the claim, but, on the contrary, was, in the eye of the law, an entire stranger to it; The original owner never assigned it nor attempted to assign it to the claimant or any one else.

For these reasons we are constrained to overrule the motions to amend.

The motions being overruled, the claimant’s petition must be dismissed.  