case was determined, and the decision therein announced, before I became a member of this court.

Touching Tennessee v. Sneed, I may say that it does not militate against the views I have expressed. Upon the face of that decision it appears that this court, accepting as authority a decision of the Supreme Court of Tennessee, held that when the contract there in question was made, no remedy by mandamus was given against an officer of the State, charged with the collection of the revenue. And to show that the court did not have before it, and did not decide, any case of the impairment of the obligation of a contract through the withdrawal of existing remedies by subsequent legislation, I quote this language from the opinion of Mr. Justice Hunt, speaking for the court: "The question discussed by Mr. Justice Swayne, in Walker v. Whitehead, 16 Wall. 314, of the preservation of the laws in existence at the time of the making of the contract, is not before us. The claim is of a subsequent injury to the contract.” Without further elaboration, and referring to the authorities cited in the dissenting opinion of my brother Field, I content myself with saying that the principles of law applicable to the present cases are stated in McCracken v. Hayward, 2 How. 608, 612, 613, where this court, speaking by Mr. Justice Baldwin, said: “The obligation of a contract consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made. These are necessarily referred to in all contracts, and form a part of them as the measure of the obligations to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or an obstruction of the rights accruing by a contract, though professing to act only on

the remedy, is directly obnoxious to the prohibition of the Constitution. . . . The obligation of the contract between the parties in this case was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions."

Mr. Justice Story, in his Commentaries on the Constitution (vol. ii. p. 245), says that any deviation from the terms of a contract, by postponing or accelerating the performance it prescribes, or imposing conditions not expressed in the contract, or dispensing with the performance of those which are a part of the contract, impairs its obligation. And Judge Cooley, in his Treatise on Constitutional Limitations, summarizes, as I think correctly, the doctrines of numerous adjudged cases in this and other courts, when he says that "where a statute does not leave a party a substantial remedy, according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy so as to destroy it entirely, and thus impair the contract, so far as it is in the power of the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, and is void" (p. 289), — language strikingly applicable to the legislation of Virginia.

By an act passed by the legislature of Virginia on the 7th of March, 1872, collectors of taxes were required to accept, in payment of taxes, nothing but gold and silver coin, United States treasury notes, and notes of national banks. But the Supreme Court of Appeals of that Commonwealth pronounced it to be unconstitutional as applied to the holders of bonds and coupons issued under the Funding Act of 1871. 22 Gratt. 933; 24 id. 169; 30 id. 137. Other statutes were subsequently passed plainly having for their object the destruction of the contracts made under and in pursuance of the Funding Act of 1871. The constitutional validity of that legislation was

involved in Hartman v. Greenhow, 102 U. S. 672. This court there, with only one dissenting voice, sustained the right of taxpayers, holding coupons issued under the act of 1871, to have them received in payment of taxes. Finally came the enactments of 1882, which have so changed the remedies existing when bonds were issued under the act of 1871 that taxpayers holding coupons of such bonds cannot use them in payment of taxes without expending more money to enforce a compliance with their contract than the coupons are worth.

I cannot agree that the courts of the Union are powerless against State legislation which is so manifestly designed to destroy contract rights protected by the Constitution of the United States.

Without stopping to speculate upon the disastrous consequences which would result both to the business interests and to the honor of the country if all the States should enact statutes similar to those passed by Virginia, I sum up what has been so imperfectly said by me: If, as is conceded, Antoni is entitled by the contract to have his coupon received in payment of taxes, when offered for that purpose, and if, as is also conceded in the opinion of the majority, he was entitled, by the laws in force when the contract was made, to the remedy of mandamus to compel the tax-collector to receive his coupons and discharge pro tanto his taxes, it is clear that the subsequent statute does impair the obligation of the contract, by imposing new and burdensome conditions, which not only prohibit the collector from receiving coupons in payment of taxes when offered, but require the taxpayer to pay his taxes in money, not to be returned to him unless, upon the occasion of each tender of coupons, he submits (without the possibility of recovering his costs of suit) to a jury trial, and proves to the satisfaction of twelve jurymen that the coupons tendered are genuine and legally receivable for taxes.

Upon the grounds stated I dissent from the judgment.

INDEX.

ACCOUNT STATED.

Unless objected to within a reasonable time,
such a reasonable time is a question of law,

-

and what constitutes

an account rendered

becomes an account stated, and cannot be impeached except for
fraud or mistake. Oil Company v. Van Etten, 325.

ADMIRALTY. See Appeal, 2-4; Maritime Law; Prize.

1. Under the act of Feb. 16, 1875, c. 77, a finding in a case of ad-
miralty and maritime jurisdiction on the instante side of the Cir-
cuit Court has the effect of a special verdict in an action at law,
and although no exceptions are filed, its sufficiency in connection
with the pleadings to support the decree rendered is open to con-
sideration on appeal. The Adriatic," 512.

2. A sailing-vessel meeting a steamer should keep her course, unless it
is manifest that she would thereby occasion a collision. Where,
therefore, as in this case by her unnecessary changes of course, she
misled and embarrassed an approaching steamer that was laboring
to keep out of her way, and a collision occurred whereby she was
sunk, whereas had she kept on the course she was sailing when first
seen by the steamer, or adhered to her first new course afterwards
taken, a collision would not have happened, Held, that the

--

APPEAL. See Admiralty, 1; Appeal Bond; National Banks, 5.

1. An appeal will not be dismissed by reason of the omission of certain
persons who were parties to the suit in the court below, if they have
no interest in maintaining or reversing the decree. Busket v. Has-
sell, 602.

2. When persons summoned as garnishees in a libel in admiralty in
personam are adjudged by the court to have a fund of the principal
defendant in their hands and to pay it into court, and the libellant
afterwards obtains a final decree against him with an award of exe-

APPEAL (continued).

cution against the fund in their hands, the first order is interlocu-
tory, and they can appeal from the last decree only. Cushing v.
Laird, 69.
3. Where, in a suit in admiralty by one insurance company against
another upon a contract of reinsurance, it became essential for the
libellant to show that the risk which it had assumed was the same
as that insured against by the policy sued on, and the Circuit Court
asserted the identity of the insurances, not in the findings of fact,
but as a conclusion of law, the question on appeal is not whether
that might be true as a presumption or inference of fact from the
circumstances stated in the findings, but whether, upon the facts
found, it must be true as a matter of law. Sun Mutual Insurance
Company v. Ocean Insurance Company, 485.

4. The rule established in United States v. Pugh, 99 U. S. 265, as to
findings of fact in cases from the Court of Claims, applies to ap-
peals from decrees in admiralty, under the act of Feb. 16, 1875,
c. 77. Id.

APPEAL BOND.

1. An appeal bond in an ordinary foreclosure suit in a court of the
United States does not operate as security for the amount of the orig-
inal decree; nor for the interest accruing thereon pending the appeal;
nor for the balance due after applying the proceeds of the mort-
gaged premises; nor for the rents and profits, or the use and de-
tention of the property pending the appeal; but only for the costs
of the appeal, and the deterioration or waste of the property, and
perhaps burdens accruing upon it by non-payment of taxes, and
loss by fire if it be not properly insured. Quære, Is its mere de-
preciation in market value any cause of recovery on the bond.
Kountze v. Omaha Hotel Company, 378.

2. An appeal bond in such a suit, instead of following the statutory
requirement, "that the appellant shall prosecute his appeal to effect,
and, if he fail to make his plea good, shall answer all damages
and costs," superadds the words that he shall "pay for the use and
detention of the property covered by the mortgage in controversy
during the pendency of the appeal." In an action on the bond, -
Held, that these words must be rejected, and the bond construed as
having its ordinary and proper legal effect, the judge taking it
having no right to exact such an addition to the condition of an
appeal and supersedeas. Id.

3. This case distinguished from those in which official bonds, and
bonds given to the government for the purpose of enjoying some
office or privilege, have been sustained as contracts at common
law. Id.

ARKANSAS.

1. The statute of Arkansas prescribing the manner in which property
assigned for the benefit of creditors shall be sold is mandatory.
Jaffray v. McGehee, 361.