letter of the statute, even though the difference be enforcement, collection, or recovery of any debt, In Ihmsen v. Lathrop, Pennsylvania Supreme transacted the business for and in the name of the as a partner. It is unusual for an agent or salesman, In Kansas City v. Ridenour, Missouri Supreme Court, February, 1885, 19 Rep. 687, under a statute providing that "in all actions at law, or other legal proceedings by any city against any person for the class, and clearly embrace a cause of action founded upon a trespass to personal property. Littleton says that the most beneficial release which a man can have is a release from all demands (§ 508); and Lord Coke declares that a release from all claims extends to all demands. Co. Litt. 291 b.' If it be urged that the city is not the real party in interest, and for that reason section 3870 can have no application, we may wonder what principles of law or equity, or what consideration of public policy, requires that the contractor's insolvent assignees should in such a case as this have a tighter grip on defendant and his property than the city itself could have, if by law the city could be, and in fact were, the real plaintiff. Here, by the law, without which no contract could be made, the contractor must look exclusively to the individual lot-owners and their several lots for the satisfaction of his demands, and must depend upon 'the ordinary process of law' for the enforcement of his right. When the im. provement has been completed, the assessment nection of the public with the transaction has ended. And when the owner of the tax-bill, and the owner of the lot against which the assessment was made thereafter, meet in court, they are on equal footing, the demand of the one ought not to be treated as a sacred thing, nor that of the other as blighted in the contract. The policy of our laws, as lettered in the statutes, and interpreted by this court, is, I think, to preserve, as a thing of substance and of importance, the distinction between general taxes, and local or special assessments. There is public policy in the conservation of individual rights, and in the enforcement of individual to the individual the right to set off in suits for equality before the law. The doctrine that denies formula, but in the reason of the rule, is its binding taxes finds no application in this case. Not in the force." As to "claim or demand," see McGaffin v. City of Cohoes, 74 N. Y. 387; Kelley v. City of Madison, 43 Wis. 638; S. C., 28 Am. Rep. 576. consisted in putting off an action, not in making a wrong decision." Does he mean to intimate that the scriptural judge is a type of modern judges or of some modern judges? He says "Lords Kenyon and Ellenborough tried cases at the rate of twenty-five a day, The very last day that Lord Ellenborough sat at Guildhall when he was laboring under great infirmity and weakness, he tried seventeen defended cases," does he hold up such despatch as an example to be imitated in these modern days? A judge who at tempted to follow the abitrary methods of the judges named would shock the public sense of justice and would be speedily impeached as unfit to wear the ermine. He says "the right of appeal, the chances of a new trial, the deliberations of courts especially in the case of a capital offense, put off punishment to such a time that its infliction seems to be a cruelty." Should there, then, be no right of appeal, no chance for a new trial, no deliberations of courts in capital cases? Should lynch law take the place of the slow and deliberate methods of modern courts ? He refers to several cases which were pending in the courts before final decisions for many years. They were exceptional cases and by no means typical law suits. Most law suits are brought to a termination with all the speed any reasonable person could expect or desire, and when they are not, the judiciary is not to blame. There are motions and counter-motions, demurrers, answers, amendments, appeals upon all sorts of questions, delays and postponements on account of deaths, engagements of counsel and absence or sickness of witnessss. How can all this be helped? The judges cannot help it without the exercise of arbitrary power which in this country would not be tolerated. A party unjustly attacked by a law suit has the right to defend himself by all the methods the law places at his diposal, and among them is delay so far as he can legitimately obtain it. Like a nation taken at a disadvantage by a powerful adversary in war, he may adopt the Fabian policy of delay and thus weary out and circumvent an antagonist seeking to enforce what he believes to be an unjust claim. The courts are powerless to prevent this, and always will be and always have been except by the exercise of arbitrary power limited only by the will and whim of the presiding judge. If the parties desire a speedy settlement of the controversy, they can usually have it. They can arbitrate, or an action may be commenced and referred, and speedily tried, or the action can, without much delay, be tried at a regular term of some court. There need be no great delay unless one or both of the parties desire it. He says "the doubting Lord Eldons are the curse of suitors." Is that really so? Was Lord Eldon, the greatest of judicial doubters, really a curse to suitors? Is the painstaking judge who carefully scans all arguments, examines all points, weighs all doubts, solves all difficulties, and thus, slowly it may be, reaches a conclusion, a greater curse than one whose decisions, rashly, hastily and He seems to complain that many cases are several He says appellate courts seem at times to care more about making precedents than about deciding the case in hand justly. This comes from the fact so often discussed that our law is largely judgemade law. Instead of being guided by the rules of codes of law, or by sound judgment as to the merits of the case, appellate courts are constantly searching for precedents in other cases and are anxiously making a precedent out of the case in hand. When a case is argued, the question is not whether justice was done in the court below; but it may be whether some witness said something which might be con sidered irrelevant, perhaps no more important to the merits than whether he stood at right angles to the jury when he testified. When we consider that an important trial may continue a week or more, and when we think how little of the testimony the jury remember at the end of the trial, it is laughable to observe appellate courts granting new trials because they cannot say that such a piece of evidence did not affect the jury." This arraignment is too severe to be laughable. With large experience, I have never known a judge to write an opinion merely or mainly to make a precedent, or for any Are other purpose than to reach a just conclusion. they to cut loose from the wisdom and labors of the past, and lose sight of the maxim that " every man's wisdom is better than any man's wisdom?" In all the appellate courts I know any thing about, the rule is rigidly enforced that an error which could have done no harm shall be disregarded; and judgments are never reversed for trifling errors of the character mentioned. It is really laughable for appellate courts to grant new trials for errors which they cannot say did not affect the jury? Are they to guess that errors that have influenced the verdict did not influence it? A new trial is doubtless an evil, but an unjust judgment is a still greater one. He says that a jury is affected much" by what may be called the atmosphere of the trial which cannot be felt by the appellate court." This is too true, and so much the more reason for the existence of appellate courts which will review judgments in the calm, serene atmosphere of the law, undisturbed by an atmosphere created by sympathy, passion or prejudice or by interested persons or able and influential counsel. Such an atmosphere, like the impalpable understanding before noticed, may play a great part upon the trial of an action, but can have no place in an appellate court. He seems to complain that appellate courts will not disregard improper evidence received upon a trial by a judge without a jury, and that the same rules of evidence are applied in equitable actions as in legal actions triable by a jury. Why should they not be? If a judge trying a case without a jury received improper evidence when objected to, his ruling shows that he considered it important and material; and hence how can it be said that it did not, or may not have influenced his decision? Having decided that the evidence was pertinent and material, can it be presumed that he afterward disregarded it? He says "not merely in matters of evidence, but upon the whole merits of the case, appellate courts might well take broader views than they do; and if they see, that on the whole, justice has been done, they might wisely disregard errors even more important than pertains to evidence." What would such a practice lead to? Every appellate court would have to consider and weigh the evidence presented to it upon paper to see whether on the whole justice had been done; and when proper evidence had been excluded or improper evidence received or an erroneous charge given or a proper instruction refused, how could an appellate court determine that justice had been done? A party has not had justice done to him until his case has been legally tried; and if appellate courts are to dispose of each case as they deem just upon the whole record, disregarding errors of law, what will become of the value of precedents and the certainty of the law, exceedingly desirable so far as can be obtained? An appeal under such circumstances would be little more than an arbitration. He says "" one other cause of legal delay may be briefly mentioned with due deference to the judiciary, and that is the writing of long opinions. "Tis pleasant sure to see one's self in print. A book's a book, although there's nothing in't.' Long opinions take up time in writing. And they cause another evil. Besides the point of law decided, there is often much in an opinion which is not decided and is not law. There passages are caught up and used as if they were accurate statements and authorities. They lead some lawyers astray." For sooth, let us have short opinions for fear some dullard upon the bench or at the bar will mistake the arguments or the illustrations for points decided! It is important for an appellate court not only to decide right, but to satisfy the parties that their case has been fully examined and considered; and this is best accomplished by an opinion fully covering the points made. Appeals to the highest appellate court are usually brought under the advice of able counsel. Frequently a dozen or more points are argued with equal zeal and apparent confidence; and if a judgment be affirmed without noticing them all in the opinion, counsel making the argument generally think that the omitted points were overlooked or not duly considered, and the result is swearing at the court or a motion for re-argument. A thorough discussion of a case on paper leads to accuracy of examination and reasoning and conduces to correct results. Would any one advise that no opinions or that mere skeleton opinions be written simply giving results and conclusions? Such a practice would certainly be unsatisfactory to the bar and to suitors. Judicial opinions in this State are not often long, and their length certainly does not contribute to the law's delays. It is the careful study and examination of cases that take time. The putting the argument upon paper is but a small portion of the work. Thus too it is not the long opinion that takes the most time. It would be more laborious to eliminate from an opinion every superfluous idea, every unnecessary phase and every idle word, as if one were writing a treatise on logic or metaphysics. There is no time for that. As if advising that no opinions be written, he says "the danger of attempting to give reasons for a conclusion is sometimes seen even in judges who have enjoyed a legal training." If a judge in an appellate court can give no reasons on paper for his conclusions, so much the worse for the conclusion. yers are jealous of this right, and are averse to putting much limitation upon it. We are an active, wide-awake, litigious people, generally ready to fight for our rights upon the field of battle or in the courts of law until final victory or defeat. It is the characteristic of our race, and must be taken into account in our legislation. It is difficult to draw the line between cases which should be appealable and those which should not be. But the effort should be made, and in that direction something may be done to lessen the law's delays. So too some relief should be given to the court of appeals by an increase in its working force, and then generally there will be no delay in the administration of justice in this State, except what is in the nature of things inevitable. The progress which we can make in any direction in a given time depends upon the distance to be travelled and the obstacles to be overcome. In the late Civil War, it took the Federal Government four years with all its resources to put down the rebellion. There were advances and retreats, marches and counter-marches, victories and defeats, before the end was reached. So in legal warfare, the obstacles in the pathway of one or of the other of the litigants may be great and the progress may be slow. Frequently the delays are beyond remedy and the burden of them must be borne. I am quite sure that they cannot in any great measure be attributed to the judiciary. My thoughts upon this subject are not all expressed, but I must stop here as a long article is probably as abhorrent to many as a long judicial opinion appears to be to some. JUDEX. THE VIRGINIA COUPON QUESTION. THE Legislature of Virginia, by the act of March 30, 1871, known as the Funding Act, provided for the issue of bonds in exchange for bonds, stocks, and interest certificates of the State, and declared that the coupons annexed thereto shall be payable to bearer, and also "receivable at and after maturity for all taxes, debts, dues, and demands due the State." Under the provisions of this act about $30,000,000 of old bonds were surrendered by the creditors of the State, and in place of them these creditors received about $20.000.000 of new bonds. The act, when thus carried into effect, constituted a contract between the State and these creditors and all subsequent holders of the new bonds and the coupons thereof. On the 7th of March, 1872, which was less than a year after the passage of the Funding Act, the Legislature passed another act, declaring that it shall "not be lawful for the officers charged with the collection of taxes or other demands of the State," then due or which might thereafter become due, "to receive in payment thereof any thing else than gold or silver coin, United States treasury notes, or notes of the National banks of the United States." The Supreme Court of Appeals of the State, at the November Term of 1872, held, in Antoni v. Wright, 22 Gratt. 833, that Virginia, in issuing her bonds in pursuance of the act of 1871, had entered into a valid contract with the holders of these bonds, and with all persons holding the coupons thereof, to receive the coupons in payment of all taxes due to the State, and that the act of March 7, 1872, so far as it conflicted with this contract, was void and of no force. The authority of this case was recognized by the same court in Wise v. Rogers, 24 Gratt. 169; and in Clarke v. Tyler, 30 id. 134, 137, which was decided in 1878, the court said the decision in Antoni v. Wright "must be held to be the settled law in this State." In 1873 the Legislature passed still another act, which was modified in 1874 and substantially re-enacted in 1876, providing "that from the interest payable out of the treasury on the bonds of the State, whether funded or unfunded, there should be retained a tax equal in amount to fifty cents on the one hun. dred dollars of their market value, on the first day of April in each year, and made it the duty of every offcer of the Commonwealth, charged with the collection of taxes, to deduct from the matured coupons which might be tendered to him in payment of taxes, or other dues to the State, such tax as was then and or might thereafter be imposed on the bonds." This legislation, so far as it relates to the deduction of the tax from the matured coupons of the bonds issued under the Funding Act of 1871, was considered by the Supreme Court of the United States in Hartman v. Greenhow, 102 U. S. 672; and the doctrine of the court was, that under the Funding Act of 1871, Virginia had entered into a contract with the holders of these coupons from which she could not, without their consent, be released, and that any subsequent enactment requiring a tax on the bonds issued under that act to be deducted from the coupons originally attached to them, when tendered in payment of taxes or other dues to the State, cannot be applied to coupons separated from the bonds, and held by a different owner, without impairing the contract, and that such owner is entitled to a mandamus to compel the proper officer to receive for their full amount the coupons so tendered. The judgment of, the Supreme Court of Appeals of Virginia, denying a mandamus to Hartman, was accordingly reversed, and the case remanded for further proceedings in accordance with this view. The next legislation of Virginia relating to the tax. receivable coupons, authorized by the Funding Act of 1871, we have in the act of January 14, 1882, not inaptly spoken of as the "Coupon Killer." The substance of this act, briefly stated, is the following: 1. That the tax-receivable coupons are to be received by tax-collectors for identification and verifi cation. 2. That all taxes due to the State are to be paid in coin, legal-tender notes, or National bank bills, and in default of such payment, to be collected as other delinquent taxes are collected. 3. That the tax payer having offered the coupons in payment of his taxes, and having been compelled to make the payment in money, may theu if he chooses, bring a suit to test the genuineness of his coupons, and that if the suit is decided in his favor, the coupons shall be accepted in payment of his taxes, and the money paid refunded to him out of the treasury of the State. 4. That if the tax payer applies for a mandamus to compel the acceptance of the tax-receivable coupons, substantially the same proces as to a suit shall be pur sued, and that the mandamus shall be issued only after the genuineness of the coupons offered shall have been judicially ascertained by a formal trial before a court and jury. majority of the court on this point. They maintained that the remedy was so changed by the act of January 14, 1882, as to violate the contract made under the Funding Act of 1871; and with all due respect to the majority, their view seems the better view. The right of the coupon holder to have his coupons "received for taxes when offered," as provided for under the Funding Act of 1871, and his right to have them so received only after they have been reduced to a judg ment by a lawsuit at the expense of the coupon holder, as provided for under the act of January 14, 1882, are very different things as to the value of these coupons to the holder, and as to the obvious intention and understanding of the parties to the contract when it was made. Common sense gives to the contract the former and not the latter meaning; and if so, then a law establishing the latter meaning impairs the obligation of the contract in respect to the remedy for its enforcement, especially when the remedy by a mandamus is excluded altogether, as was done by the act of January 26, 1882, and the act of April 7, 1882. The receivability of the coupons, as secured by the Funding Act, is so hampered and embarrassed by subsequent legislation as to be substantially destroyed; and this was evidently the intention of the legislation. This act was supplemented by the act of January 26, 1882, providing that the several tax collectors of Virginia "shall receive, in discharge of the taxes, license taxes, and other dues, gold, silver, United States treasury notes, National bank currency, and nothing else," and further providing that "no writ for the prevention of any revenue claim, or to hinder or delay the collection of the same, shall in any wise issue, either injunction, supersedeas, mandamus, prohibition, or any other writ or process whatever. The latter act was amended by the act of March 13, 1884, declaring that " no action of trespass or trespass on the case shall be brought or maintained against any collecting officer for levying upon the property of any tax payer who may have tendered in payment, in whole or in part, auy coupon or paper purporting to be a coupon cut from the bonds of this State for such taxes, and who shall refuse to pay his taxes in gold, silver, United States treasury notes, or national bank notes." The act of April 7, 1882, declared that "no writ of mandamus, prohibition, or any other summary process whatever shall issue," from the Supreme Court of Appeals, "in any case of the collection or the attempt to collect revenue, or compel the collecting officers to receive any thing in the payments of taxes other than as provided" in the act of January 26, 1882. Andrew Antoni, a tax payer, on the 20th of March, 1882, offered in payment of his taxes, a tax-receivable coupon to the treasurer of the city of Richmond in Virginia; and the acceptance thereof for this purpose being refused, he on the 28th of March, petitioned the Supreme Court of Appeals for a mandamus to compel such acceptance. The members of the court, upon the hearing of the case, were equally divided in opinion; and hence the writ was denied. Antoni then, by writ of error, carried the judgment to the Supreme Court of the United States; and this court in Antoni v. Greenhow,107 U. S. 679, affirmed the judgment of the court below. The single question decided by the court was whether the remedy for the enforcement of the contract with the coupon holder, as it existed when the contract was made, was so changed by the "coupon killing" act of January 14, 1882, as to violate the provision of the Constitution which declares that no State shall pass any "law impairing the obligation of contracts;" and the majority of the court were of opinion that no such change had been made in the remedy, and hence sustained the judgment of the lower court in refusing to issue a mandamus. Chief Justice Waite in stating the opinion of the court, said expressly that "the right of the coupon holder is to have his coupon received for taxes when offered," and that the question before the court was "not as to that right, but as to the remedy the holder has for its enforcement when denied." He said again: "The question presented by this record is not whether the tax collector is bound in law to receive the coupon, notwithstanding the legislation which, on its face, prohibits him from doing so, nor whether, if he refuses to take the coupon and proceeds with the collection of the tax by force, he can be made personally responsible in damages for what he does, but whether the obligation of the contract has been impaired by the changes which have been made in the remedies for its enforcement in case he refuses to accept the coupons. We decide only the question which is actually before us. "" The remedy under the act of January 14, 1882, though not identical with the one existing when the contract was made, was, as the Chief justice said, "substantially equivalent to that in force when the coupons were issued." Messrs. Justices Field and Harlan, in their dissenting opinions given in this case, took issue with the Mr. Justice Matthews speaking for the court in Poindexter v. Greenhow, 5 Sup. Ct. Rep. 903, 909, and referring to the case of Antoni v. Greenhow, supra, said: "That was a case in which it was sought, by mandamus, specifically to enforce the contract of the State with the coupon holder, by compelling, by affirmative action and process of law, the collector actually to receive the coupons tendered in satisfaction of taxes. It left unaffected the right of the coupon holder and taxpayer, after his tender had been unlawfully refused to stand upon his contract and the law in the defense of his rights, both of person and property, against all unlawful assaults and seizures. In the former he was an actor, seeking affirmative relief to compel the specific performance of the contract. In the latter he is a defendant, passively resting on his rights, and resisting only demands and exactions sought to be enforced against him in denial of them. He has himself, in all things, performed the contract on his part, and obeyed the law, and simply insists that if more is legally exacted and taken from him, he shall have the remedy which the law gives to every other citizen, not himself in default, against the wrong-doer, who under color of law, but without law, disturbs or dispossesses him." The disclaimers of Chief Justice Waite, in stating the opinion of the court in Antoni v. Greenhow, supra, as to what was not decided in that case, and the specific statement as to the only point decided, undoubtedly furnished the suggestion which subsequently led to several suits in Virginia in relation to the coupon question, some of these suits being brought in the courts of the State, and others in the Circuit Court of the United States. One of these suits was that of the Baltimore & Ohio R. Co. v. Allen, 17 Fed. Rep. 171. The company, in this case, after duly tendering the tax-receivable coupons in payment of its taxes due to the State of Virginia, and after the refusal of the tax collector to receive them for this purpose, applied to the court for an injunction to restrain the latter from the seizure and sale of its property in enforcing the payment of the taxes claimed by the State. Judge Bond referring to the language of the Supreme Court in Antoni v. Greenhow, supra, to the effect that "the right of the coupon holder is to have his coupon received for taxes when offered," and holding that the complainant in this case had no adequate remedy at law, and further holding that the suit was not one against the State of Virginia, granted the application and ordered the injunction to be issued. |