CHASE, Circuit Justice.
The general principles on which this case must be adjudicated were announced at the last term. But a suit commenced by the defendant (Waller), in a state court of New York against the plaintiff (Bigler), prior to the bringing of the present suit in this court was then pend-' ing and undetermined, and we did not think proper until that suit should be disposed of to proceed to final decree here.
That suit, however, has been terminated by discontinuance, and there is no reason why a final disposition of the litigation should not now be made.
The principles stated at the last term require that all the exceptions taken to the report of Commissioner Chahoon be sustained, except so far as the views now to be stated may affect this general order.
It is not denied that on May 10, 1860, the sum of thirteen thousand dollars was due from the plaintiff (Bigler) to the defendant (Waller), as a balance of the purchase money agreed to be paid for the estate sold to the former by the latter.
The questions to be considered are these:
1. By what rule shall interest be computed on this balance? In other words, shall interest be allowed for the period during which intercourse between the parties, and between the parts of the country in which they respectively lived was suspended by the civil war?
In a case decided by the circuit court of the United States for the district of North Carolina, [Shortridge v. Macon, Case No. 12, 812,] it was held that interest did not cease during the recent civil war, in consequence of the residence of the parties to the contract in the hostile sections of the country. Since that decision was made it has been held by the supreme court of the United States, in the case Hanger v. Abbott, 6 Wall. [73 U. S.] 532, that the statute of limitations was suspended by the civil war in the insurgent states as to non-residents, having causes of action against residents of those states. And in the case of Ward v. Smith, 7 Wall. [74 U. S.] 452, while it was held that under the circumstances of that particular case interest did not cease, the opinion of the court was put upon circumstances wearing an exception to the general rule that interest does not accrue during war between citizens or subjects of belligerent states. The general rule •was neither affirmed nor denied; but it may not unreasonably be inferred from the language of the court, that if the direct question presented by this case were before that tribunal, it would be resolved in favor of the maker of the bond. Bigler, the maker, was in occupation of the estate purchased at the commencement of the war by his agent; and not only was he wholly excluded from occupancy and from possession during its continuance, but the improvements put on the property by him at great cost were destroyed, and the estate otherwise was greatly injured. Waller, the obligee, was in the Confederate army, and at a sale made under the trust deed executed by Bigler to secure the bond became himself the purchaser; and he was doubtless, though since the war he has disclaimed title to the land as against Bigler, entitled as such purchaser to the possession.
We have already said that Waller is not to be held responsible for the injuries sustained by Bigler in consequence of the war; but, on the other hand, we can not doubt that if interest on a debt should cease in any case it should cease in this; and our duty is to determine this question as we believe it would be determined by the supreme court if submitted to its consideration.
It is more difficult to determine the period during which interest should cease. The actual beginning of war against the United States, doubtless, preceded the proclamation of the president of April 15, 1861, calling out the militia to suppress insurrection; but the proclamation declaring the blockade of the ports of the insurgent states must be regarded as the first formal recognition of the existence of civil war by the national government.
That proclamation was issued on April 19, 1861, and that date, therefore, must be taken as the date of the commencement of the war. The period of its termination has not been so definitely ascertained.
It was declared by the concurrent action of the President and of congress to have ended on August 2,1S06, and this date has been recognized by the supreme court as the end of the rebellion, intended by the abandoned and captured property act and some other legis[375]*375lative provisions. In another case depending on the effect of the statute of limitations the court thought fit to decline fixing any precise date of termination applicable to all cases.
[NOTE. Complainant appealed from the decree of the circuit court, directing the payment of 817,377.48, in United States coin, to the administrator of Waller; and in delivering the opinion of the supreme court in Bigler v. Waller, 14 Wall. (81 U. S.) 297, Mr. Justice Strong held that there was no sufficient reason for the allowance of a credit on complainant’s bond in consequence of Waller’s refusal to execute releases, passed on several questions not raised in the principal cause, and reversed the decree of the lower court, on the ground that it directed the amount of the decree to he paid in United States coin. For a hearing on motion to dismiss the appeal, in the supreme court, see 12 Wall. (79 U. S.) 142.]
This question being thus left open, we think it right in this case, to take the establishment at Richmond of the adhering government of Virginia as the recognized government of the whole state as the end of the war in this state. This event may be said to have taken place when the executive department of that government was removed from Alexandria to Richmond, on May 26, 1S65. The period, then, to be excluded in the computation of interest is the time from April 19, 1861, to May 26, 1S65.
2. What credit, if any, is to be given to Bigler for money received by Waller from the Confederate government?
The evidence shows that the sum of two thousand dollars, was thus received in October, 1863, by way of compensation for use made of the property and of indemnity for waste committed upon it At that time it appears that the rate of Confederate notes for gold was thirteen for one. For this sum of two thousand dollars, reduced to the specie equivalent, with interest on the sum thus ascertained, credit is to be given on the bond.
3. What credit, if any, should be given to Bigler for damage sustained by reason of non-fulfillment on the part of Waller of his contract to release to purchasers? It is clear enough upon the evidence that under the original contract of purchase, Bigler had a right to sell portions of the estate, and to have these portions released to the purchaser on payment to Waller of so much of the purchase money as would leave his security unimpaired. And it is sufficiently proved that some time after the purchase, in 1853 or 1854, Bigler had some offers to buy small parcels of the tract, and applied orally to Waller for a release; and that Waller, for some reason, refused. But it does not appear that Bigler at that time, or at any time afterwards, until this controversy arose, set up any claim for damages. On the contrary, Bigler continued to make payments on account of the purchase until May, 1860. Under these circumstance# it would be difficult to sustain the claim for damages were the proof of the quantity of land sold, the price offered, and the demand for release under the contract much clearer and more specific than it is.
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CHASE, Circuit Justice.
The general principles on which this case must be adjudicated were announced at the last term. But a suit commenced by the defendant (Waller), in a state court of New York against the plaintiff (Bigler), prior to the bringing of the present suit in this court was then pend-' ing and undetermined, and we did not think proper until that suit should be disposed of to proceed to final decree here.
That suit, however, has been terminated by discontinuance, and there is no reason why a final disposition of the litigation should not now be made.
The principles stated at the last term require that all the exceptions taken to the report of Commissioner Chahoon be sustained, except so far as the views now to be stated may affect this general order.
It is not denied that on May 10, 1860, the sum of thirteen thousand dollars was due from the plaintiff (Bigler) to the defendant (Waller), as a balance of the purchase money agreed to be paid for the estate sold to the former by the latter.
The questions to be considered are these:
1. By what rule shall interest be computed on this balance? In other words, shall interest be allowed for the period during which intercourse between the parties, and between the parts of the country in which they respectively lived was suspended by the civil war?
In a case decided by the circuit court of the United States for the district of North Carolina, [Shortridge v. Macon, Case No. 12, 812,] it was held that interest did not cease during the recent civil war, in consequence of the residence of the parties to the contract in the hostile sections of the country. Since that decision was made it has been held by the supreme court of the United States, in the case Hanger v. Abbott, 6 Wall. [73 U. S.] 532, that the statute of limitations was suspended by the civil war in the insurgent states as to non-residents, having causes of action against residents of those states. And in the case of Ward v. Smith, 7 Wall. [74 U. S.] 452, while it was held that under the circumstances of that particular case interest did not cease, the opinion of the court was put upon circumstances wearing an exception to the general rule that interest does not accrue during war between citizens or subjects of belligerent states. The general rule •was neither affirmed nor denied; but it may not unreasonably be inferred from the language of the court, that if the direct question presented by this case were before that tribunal, it would be resolved in favor of the maker of the bond. Bigler, the maker, was in occupation of the estate purchased at the commencement of the war by his agent; and not only was he wholly excluded from occupancy and from possession during its continuance, but the improvements put on the property by him at great cost were destroyed, and the estate otherwise was greatly injured. Waller, the obligee, was in the Confederate army, and at a sale made under the trust deed executed by Bigler to secure the bond became himself the purchaser; and he was doubtless, though since the war he has disclaimed title to the land as against Bigler, entitled as such purchaser to the possession.
We have already said that Waller is not to be held responsible for the injuries sustained by Bigler in consequence of the war; but, on the other hand, we can not doubt that if interest on a debt should cease in any case it should cease in this; and our duty is to determine this question as we believe it would be determined by the supreme court if submitted to its consideration.
It is more difficult to determine the period during which interest should cease. The actual beginning of war against the United States, doubtless, preceded the proclamation of the president of April 15, 1861, calling out the militia to suppress insurrection; but the proclamation declaring the blockade of the ports of the insurgent states must be regarded as the first formal recognition of the existence of civil war by the national government.
That proclamation was issued on April 19, 1861, and that date, therefore, must be taken as the date of the commencement of the war. The period of its termination has not been so definitely ascertained.
It was declared by the concurrent action of the President and of congress to have ended on August 2,1S06, and this date has been recognized by the supreme court as the end of the rebellion, intended by the abandoned and captured property act and some other legis[375]*375lative provisions. In another case depending on the effect of the statute of limitations the court thought fit to decline fixing any precise date of termination applicable to all cases.
[NOTE. Complainant appealed from the decree of the circuit court, directing the payment of 817,377.48, in United States coin, to the administrator of Waller; and in delivering the opinion of the supreme court in Bigler v. Waller, 14 Wall. (81 U. S.) 297, Mr. Justice Strong held that there was no sufficient reason for the allowance of a credit on complainant’s bond in consequence of Waller’s refusal to execute releases, passed on several questions not raised in the principal cause, and reversed the decree of the lower court, on the ground that it directed the amount of the decree to he paid in United States coin. For a hearing on motion to dismiss the appeal, in the supreme court, see 12 Wall. (79 U. S.) 142.]
This question being thus left open, we think it right in this case, to take the establishment at Richmond of the adhering government of Virginia as the recognized government of the whole state as the end of the war in this state. This event may be said to have taken place when the executive department of that government was removed from Alexandria to Richmond, on May 26, 1S65. The period, then, to be excluded in the computation of interest is the time from April 19, 1861, to May 26, 1S65.
2. What credit, if any, is to be given to Bigler for money received by Waller from the Confederate government?
The evidence shows that the sum of two thousand dollars, was thus received in October, 1863, by way of compensation for use made of the property and of indemnity for waste committed upon it At that time it appears that the rate of Confederate notes for gold was thirteen for one. For this sum of two thousand dollars, reduced to the specie equivalent, with interest on the sum thus ascertained, credit is to be given on the bond.
3. What credit, if any, should be given to Bigler for damage sustained by reason of non-fulfillment on the part of Waller of his contract to release to purchasers? It is clear enough upon the evidence that under the original contract of purchase, Bigler had a right to sell portions of the estate, and to have these portions released to the purchaser on payment to Waller of so much of the purchase money as would leave his security unimpaired. And it is sufficiently proved that some time after the purchase, in 1853 or 1854, Bigler had some offers to buy small parcels of the tract, and applied orally to Waller for a release; and that Waller, for some reason, refused. But it does not appear that Bigler at that time, or at any time afterwards, until this controversy arose, set up any claim for damages. On the contrary, Bigler continued to make payments on account of the purchase until May, 1860. Under these circumstance# it would be difficult to sustain the claim for damages were the proof of the quantity of land sold, the price offered, and the demand for release under the contract much clearer and more specific than it is. But on all these points the evidence is vague and indefinite — much too vague and indefinite to form the basis of a decree. We are obliged, therefore, to deny any credit on account of damages. A decree may be entered in comformity with these principles.