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The Central Law Journal. Cooley, and his experience has been much the


He also has had a long judicial trainST. LOUIS, JANUARY 7, 1881.

ing, and is well known to the profession as an

author. He too has that genius which is hapCURRENT TOPICS.

pily called "an immense capacity for taking

trouble,” and which is never wanting in the It is generally understood that Mr. Justice

composition of a great jurist. While the one Swayne is about to resign his seat upon the

is without doubt the foremost constitutional Federal time Mr. Hayes is to have the opportunity of lawyer of the country, the other is unequalled

in the wider fields of equity jurisprudence. exercising the highly important and difficult

In this rivalry each may find in the other a function of selecting from the bench and bar

worthy competitor. a successor worthy to wear the judicial

There is something peculiarly appropriate ermine of the most august tribunal in the

and desirable in the practice of recruiting the land. That it is impossible to over-estimate

ranks of the Supreme Bench from those memthe importance of these appointments to the

bers of the Federal or State judiciary who have substantial interests of the country is a fact peculiarly distinguished themselves for learrwell known to the bar, and it is natural that ing, probity and industry as judges, rather much interest as to the president's choice

than from the ranks of successful politicians should be manifested. Among those most

or even statesmen. It insures the excellence prominently mentioned as worthy candidates

of the Supreme Court, and what is scarcely for the place are Ex-Senator Stanley Mat

less important, holds out to judges of inferior thews of Ohio, and Mr. Chief Justice Cooley

courts an inducement for extraordinary labor of the Michigan Supreme Court. No one

and study, which under our system of crowdwill deny the well-earned reputation for abil

ed dockets and small salaries the emoluments ity and learning of Mr. Matthews; and were

of office rarely furnish. his competitor other than he is, his appointment would not be one to cavil at. But Mr. The bar of Missouri met in Convention at Cooley's qualifications for the position are so Kansas City on the 29th ult., to devise some transcendent, that we think there ought to be

method for the relief of the Supreme Court, no hesitation as to a choice between the two

which has an accumulation of some three men. A man, of a naturally judicial tem- years' work upon its docket. The plan, which perament, he has had the incalculable ad- the convention agreed, after a very short sesvantage of a long judicial experience upon

sion, to recommend to the legislature, is the the supreme bench of his own State, where,

time-worn and trite device of a Supreme by the excellence of his opinions, he has

Court Commission. earned for himself a national reputation for

A system of subordinate appellate courts, deep learning, great discernment and untiring

with a pecuniary limit to their jurisdiction, is industry. This has been supplemented by far more preferable. The plan has been tried his works on Torts, Constitutional Limita

with admirable success in Illinois, and is now tions, and Taxation, which are unquestion in operation in that State. The objection that ably the ablest text books extant on those such a system creates in effect two courts, subjects. We do not believe it possible for one for the poor and another for the rich, any man whose life has been spent in the seems upon reflection to be mere demagoghalls of legislation or in the contests of ad- ism. It is not, however, the less likely to vocacy to come to a seat upon the Supreme have its weight in the halls of legislation on Bench as well equipped as Mr. Cooley. We that account. There is a more valid objecbelieve we do not go too far in saying that tion that such courts will, in those cases in his selection would be satisfactory to the en

which their jurisdiction is final, be tempted to tire country, and peculiarly gratifyirg to the disregard the precedents of the Supreme bench and bar of the North-West.

Court. But this difficulty may be met and Mr. Justice Cooper, of Tennessee, is also overcome by having a member of the Supreme mentioned in connection with this subject. Court sit in circuit upon the bench of each of His learning is not inferior to that of Mr. the inferior appellate courts.

Vol. 12-No. 1.

THE LIMITS TO LEGISLATIVE POWER hand, to give a right of action where noke

IN THE PASSAGE OF CURATIVE existed before, is clearly retrospective.

A retrospective law is one which is made to operate upon some subject, transaction or

contract which existed before its passage, There has always been some regret that,

and which is intended to give it a different when the Federal judiciary was called upon

legal effect from that it would have had withto interpret and apply the prohibition in the

out it. The definition itself is sufficient to Constitution of ex post facto laws, it did not

show that such a law must be inoperative so reach the conclusion that retrospective laws

far as its effect would be to impair any obliwere forbidden, as well where they applied to civil rights as when they concerned criminal gation which has been assumed by contract ;? liabilities or penalties. The famous twenty

but the power to affirm and give legal validininth chapter of the great charter placed the

ty to an invalid contract which parties had protection of liberty and property upon the previously attempted to make on sufficient same basis, and the power to reach the one

consideration, has often been affirmed, 8 and by indirection is subject to the same objec

is often strictly just. tions in principle, that could be urged against

The chief practical difficulty arises, when the power to reach the other by the same

an attempt is made to cure defects which method. This is so strongly felt that

have occurred in judicial and other proceedthe courts, while compelled by authority to ings by reason of the failure to obey the readmit the power to pass retrospective laws, quirements of law.

quirements of law. That this may be done nevertheless refuse to find that the power has

in a great variety of cases, is undoubted. been exercised in a particular case, unless the

That it can not be done in other cases, is terms of the statute are such as imperatively equally certain.

But what are the cases in to require it.2 Some States have deemed it which it may be done, and what those in wise to forbid retrospective laws altogether, which it may not be? and this has relieved the judicial mind of

The principle on which the decided cases some embarrassment, though such a prohibi- have ranged themselves is clear enough. A tion must still leave open the question what retrospective act which merely takes away & a retrospective law is. In New Hampshire

In New Hampshire technical defense is not unjust and not init is held, that a statute regulating and modi- competent. Therefore a mere informality in fying remedies is not retrospective, though judicial or administrative proceedings may made to apply to causes of action previously be cured retrospectively, provided the legisexisting3 The same ruling has been had in lature which attempts to cure it, has power Tennessee ;4 and even in criminal cases the

at the time to authorize such a proceeding as modification of remedies may be made to ap

was actually had. 10 This is on the ground ply to previous offenses, provided the modifi- that a merely technical defense is not a merications are not such as to deprive accused

torious defense, and therefore the party has parties of substantial rights. On the other

6 Woart v. Winnich, 3 N H. 473; 8. C., 14 Am. Dec.

384; Clark v. Clark, 10 N. H. 380. 1 Calder v. Bull, 3 Dall. 390; Satterlee v. Matthew- 7 Const. U. s., Art 1, sec. 10, cl. 1; White v. Craw. son, 2 Pet. 380; Carpenter v. Pennsylvania, 17 How. ford, 84 Pa. St. 433. 463; Cummings v. Missouri, 4 Wall. 277.

8 Goshen v. Stonington, 4 Conn. 225; s. C. 10 Am. 2 Dash v. Van Kleek, 7 Johns. 477; Gerry v. Stone- Dec. 121; Lewis v. McElvain, 16 Ohio, 347; Hers v. ham, 1 Allen, 319; Donahoe v. Coleman, 46 Conn. Werts, 4 Serg. & R. 360; Savings Bank v. Allen, 28 319; Chicago v. Rumsey, 87 III. 348; Rogers v. Green- Conn. 97; Woodruff v. Scruggs, 27 Ark. 26; 8. c. 11 bush, 58 Me. 395; Danville v. Pace, 25 Gratt. 1; Gar- Am. Rep. 777; Thompson v. Morgan, 6 Minn. 292; rett v. Beaumont, 24 Miss. 377; State v. Ferguson, 6:4 Journeay v. Gibson, 56 Pa. St. 57; Grove v. Todd, Mo. 77; Baldwin v. Newark, 38 N. J. 158.

41 Md. 633. Compare Chestnut v. Shane, 16 Ohio, 599 3 Rich v. Flanders, 39 N. H. 304; Simpson v. Sav- and Barnet v. Barnet, 15 Serg. & R. 72; 8. C. 16 Am. ings Bank, 56 N. H. 466. See De Cordova v. Galves Dec. 516, with Railroad Co. v. Van Horn, 57 N. Y. 473, ton, 4 Texas, 470; Officer v. Young, 5 Yerg. 320.

and Williams v. Wilbur, 67 Ind 42. 4 Negroes v. Dabbs, 6 Yerg. 119.

9 A large number of cases affirming the right are 5 State v. Wilson, 48 N. H. 398; Walter v. People, collected in the note to Goshen v. Stopington, 10 Am. 32 N. Y. 147; Warren v. Commonwealth, 37 Pa, St. Dec. 121, 131. 45; Jones v. State, 1 Geo. 610; Seeley v. Thomas, 10 Kimball v. Rosendale, 42 Wis. 407; 9. c. 24 Am. 31 Ohio St. 301.

R. 421.



sale. 18

no right to demand protection in it. On the such term of time as should be sufficient to other hand, the legislature can not retro- discharge the taxes and charges. The colspectively make valid what it could not lector, instead of obeying this law, advertised originally have authorized, and, therefore, that he would sell the estate, or such undivican not validate judicial proceedings when ded portion thereof as might be necessary. the defect to be cured extends to the juris- The court held that all sales made under this diction of the court which assumed to take notice were void. Retrospectively the legisthem. It is equally powerless to validate lature attempted to cure them, and was held private acts or administrative proceedings, to be without power for the purpose. when the defects are of a similar nature. It We say this case is near the line, because can not, for example, validate

a deed

here a notice was given, which was as likely whereby a party undertakes to convey, con- to attract the attention of the parties concerntrary to the express terms under which he ed, as would be one which complied with the holds ;)1 or one which is a fraud upon other law; and presumptively he had every legal parties concerned ;12 or a fraudulent tax

opportunity to redeem his lands. It may

therefore be urged that he was not injured by Perhaps more often than in any other cases, the irregularity, and that it should be classed the legislature has attempted to exercise its with others which give the opportunity for a curative power to make good the sales of mere technical defense. But the notice is lands for taxes, where there has been a fail- not given for the information of the delinure to comply with the law. In some cases quent tax-payer exclusively; it is meant for this is done prospectively; the legislature de- the information of the public, and to invite claring that such and such defects shall not the public to the proposed tax sale. The ininvalidate the proceedings. This is the same tent is that enforcing the tax shall be as little as saying that the defects enumerated shall burdensome as possible to the party taxed; be deemed immaterial; and there is no doubt and if this intent is defeated by the notice of the competency so to declare, where sub-actually given, he has a right to complain. stantial rights do not depend upon them. Now the notice actually given in this case The power to do this has been carried to very was erroneous on its face. It notified a tax great lengths in some cases. 14

sale, but not a legal tax sale. The public It has been generally agreed that the fail. would not be invited by it to attend the sale, ure of the proper officer to give any notice because they would know from its terms that to which the tax payer was entitled, and a sale under it would be invalid under the which was important to the protection of his law as it then stood. They could not know interests, was such a defect as the legislature that any curative statute would be passed, could not retrospectively cure. The recent and would not, therefore, be likely to appear case in Massachusetts of Forster v. Forster, 15 at the sale. The result would be that the is very clear on this point, and at the same owner of the estate would lose the benefit of time, perhaps, comes as near the line between the competition at the sale which the statute what is admissible and what is not, as any meant to give him. This would be a subcase to be found in the books. The tax col- stantial loss, and the error in the notice could lector was required by law, when taxes on not be a mere irregularity. real estate were delinquent, to advertise that But while all this is perfectly true, and the he would sell so much of the real estate, or decision, as we think, undoubtedly sound, the rents and profits of the whole estate, for there is very great difficulty and some uncer

tainty in applying the principle. The very 11 Shouk v. Brown, 61 Pa. St. 827.

object of curative statutes is to make good 12 Railroad Co. v. Railroad Co. 50 N. H. 60.

proceedings in which statutory requirements 13 Conway v. Cable, 37 III. 82.

have not been observed; and it is supposable 14 See Eldridge v. Kuehl, 27 Iowa, 160; Rhodes v. Sexton, 33 lowa, 540. Compare Wilson v. McKen.

in almost any case that, by reason of the negnon, 52 III. 13; Reed v. Tyler, 56 Ill. 288; Silebee v. lect, some other act, which would have been Stockle (Sup. Ct. Mich.), 7 North West. R. 237; Reading v. Finney, 73 Pa. St. 467.

importan: to the party, has not been done. If 15 11 Cent. L. J. 407.

one curative law may be held good, and an

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other not good, the result is that the validity article to discuss the subject in its different of leglslation in this class of cases must de- phases, and to unfold the reasons assigned for the pend upon the view the court may take of its

decisions rendered in the leading cases. The

subject, however, is too extensive to receive an justice. If, in the opinion of the court, it

exhaustive treatment in an article of this comoperates unjustly, it must be held void ; but

pass. It will, therefore, be possible only to give if not, it may be upheld. 16 This is not a a brief outline of the subject, and present its satisfactory condition of the law; for the the- salient points. ory of our Government undoubtedly refers

Impossibility of performance as a defense to

actions on contracts may be discussed under two all mere considerations of equity in the en

leading heads: actment of laws to the legislature itself, with I. Where the impossibility relates to the conpowers of final decision.17 Nevertheless, there sideration of the contract, i. e., where the promare some cases where toe course of legislation isee is unable to execute the consideration, either

because it is from some cause or other, impossible itself forces upon the court the necessity of

to perform, or because it is illegal under the laws such a decision. A legislature, for example,

of the land. passes an act for the limitation of actions,

II. Where the impossibility exists in the perand makes it applicable to causes of action formance of the promise, arising, 1. from the already existing. It is unquestionable that acts of the promisee; 2. from the acts of God, or this may be done; provided, a reasonable

inevitable accideät; 3. from the act of the law.

I. It is a universal rule of the law of contracts, time is allowed in which to bring suit. But

that to entitle a promisee to maintain an action what is a reasonable time? The question is

on a contract, he must show that a valuable conone of justice and fair dealing; and the court sideration supports the promise, and that he will sustain one act and declare another null, either has executed, or is able and willing to ex

ecute, the same. This forms a condition preceaccording as it shall think its operation would

dent to his right of action, which under all cirbe just or unjust. 18 And the distinction be

cumstances is indispensable. When, therefore, tween directory and mandatory provisions of the consideration is impossible, from whatever a statute rest largely upon the same princi- cause the impossibility may arise, except the act ple. Infinite mischief would be done, were the

of the promisor, it constitutes a complete defense courts to hold that all legislative enactments

to an action by the promisee for the breach of the

contract by the promisor. In this respect the law must be strictly complied with—elections

is different in cases of impossibility of considerawould fail, and tax proceedings fall to the tion from what it is in cases of impossibility of ground, especially all those which are special performance on the part of

performance on the part of the propisor. The and exceptional in their nature. The courts

action is supposed to be brought against the

promisor for his breach of the contract. The sustain some, and they refuse to sustain

theory of the action is, that the plaintiff has sufothers; and in many cases they have no other fered an injury by the breach. He must thereguide than their judgment, whether the ir- fore prove, or the law must imply, that he has regularities which have intervened are of a

suffered from such breach. But he could not

have suffered any injury, if he has failed to exenature to operate unjustly upon the rights of

cute the consideration, and it is not in his power to do so. If the impossibility has arisen subsequent to the execution of the contract, and from no default of his, it is his misfortune, which can

not be attributed to the promisor under the conMPOSSIBILITY OF PERFORMANCE AS A

tract, unless he caused the impossibility. His DEFENSE TO ACTIONS EX CONTRACTU.

rights, therefore, under the contract are deIn actions founded on contracts, one of theim- stroyed, and his right of action taken away. But portant questions likely to arise is, whether the in the case of impossibility arising in the percontract is a possible one; and if impossible, how formance of the promise by the promisor, the far and under what circumstances impossibility plaintiff has suffered an injury; for he is supposed of performance constitutes a valid and complete to have parted with the consideration, or is ready defense to such actions. It is the purpose of this and able to execute it, and the breach bas de

prived him of an advantage without any default 16 Watson v. Bailey, 1 Binney, 477; Goshone v.

on his part. Whether, therefore, the defendant Purcell, 11 Ohio St. 641.

is excused from performance on account of its 17 Bennett v. Boggs, Baldw. 74; Pennsylvania R. Co. v. Reblet, 66 Pa. St. 164, 169.

impossibility, depends upon a great variety of 18 Terry v. Anderson, 95 U. S. 628.

circumstances, and must be governed by a much 19 French v. Edwards, 13 Wall. 506; Toney v. Wil- narrower rule than the cases of impossibility of bury, 21 Pick. 67; Koch v. Bridges, 45 Miss. 247.


parties. 19

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Where the consideration is objectionable from its illegality under the laws of the country, public policy compels the courts to declare it an impossible, and hence insufficient, consideration,

nd refuse to entertain an action on the contract against the promisor. The law in general, therefore, is, that where the entire consideration is illegal, the contract is void, and no right of action exists. Collins v. Blantern, 2 Wils. 347; Armstrong v. Toler, 11 Wheat. 258; Deering v. Chapman, 22 Me. 488; Coulter v. Robertson, 14 Sm. & M. 18; Carlton v. Bailey, 27 N. H. 230; Hinesburgh v. Sumner, 9 Vt. 23; Woodruff v. Hinman, 11 Vt. 592; Gamble v. Grimes, 2 Ind. 392; Dedham Bank v. Chickering, 4 Pick. 314; Donallen v. Lennox, 6 Dana, 91; Perkins v. Cummings, 2 Gray, 258; Hoover v. Pierce 27 Miss. 13; Benyon v. Nettlefold, 2 Eng. L. & Eq. 113; Howden v. Simpson, 10 A. & E. 815; Hall v. Dyson, 10 Eng. L. & Eq. 424; 3. c. 17 Q. B. 785; Nerot v. Wallace, 3 T. R. 17. Thus in Nerot v. Wallace, the defendants promised the assignees of a bankrupt, when the latter was undergoing his last examination, that if the assignees would refrain from examining the bankrupt, and the commissioners should waive his examination, touching moneys alleged to have been received by him, he would pay all such moneys so received to the assignees. The court held that the consideration was illegal, because it violated the policy of the bankrupt laws. Judge Kenyon remarked: “I do not say that this is nudum pactum; but the ground on which I found my judgment is this, that every person, who in consideration of some advantage, either to himself or to another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that not only in fact, but in law. Now the promise made by the assignees in this case, which was the consideration of defendant's premise, was not in their power to perform, because the commissioners had nevertheless the right to examine the bankrupt, and no collusion of the assignees could deprive the creditors of the right of examination, which the commissioners would procure for them. The assignees did not stipulate only for their own acts, but also that the commissioners would forbear to examine the bankrupt; but clearly, they had no right to tie up the hands of the commissioners by any such agreement.” Judge Ashhurst, in the same case,says: "In order to found a consideration for a promise, it is necessary that the party, by whom the promise (which is to form the consideration) is made, should have the power of carrying it into effect, and, secondly, that the thing to be done should in itself be legal. Now it seems to me that the consideration for this promise is void on both these grounds. The assignees have no right to control the discretion of the commissioners; and it would be criminal in them to enter into such an agreement, because it is their duty to examine the bankrupt fully, and the creditors may call on

them to perform it. And for the same reason the thing to be done is illegal.”

The authorities are all uniform in holding that a contract is void, where the entire consideration is illegal. There can be doubt as to the correctness of this unanimous conclusion. Great difficulty arises however, when the consideration is only partially illegal, and when the illegal part can be separated from the legal, and the latter can stand alone. Shall a party be permitted to enforce a contract, where a part of the consideration is illegal, because he has attached to the illegal consideration one that is legal? In 1 Pareons on Contracts, 457, it is maintained that he can not, although the author admits that it will require further adjudication to settle the question definitely. He says: “A distinction must be taken between the cases in which the consideration is illegal in part, and those in which the promise founded on the consideration is illegal in part. If any part of the consideration is illegal, the whole consideration is void; because public policy will not permit a party to enforce a promise, which he has obtained by an illegal promise, although he may have connected with this act or promise another which is legal. But if one gives a good and valid consideration, and thereupon another promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together, that they can not be separated; in which case the whole promise is void.”

Where the impossibility of execution of the consideration arises from some other cause than the prohibition of the law, the rule and reason governing such cases are very nearly the same. If the entire consideration is impossible, and hence altogether insufficient to support the promise, no action can be maintained against the promisor. In such eases no benefit has been conferred upon the promisor, and no legal injury suffered by the promisee, since from the nature of things the latter is unable to execute the consideration. Consequently no duty is imposed upon the promisor to fulfill his promise, a:d the promisee is denied the right to enforce its perform

The rule is the same, whether the impossibility exists at the time the contract is entered into, or arises subsequently through the loss or destruction of the thing constituting the consideration, or the personal inability of the promisee to perform it. Woodward v. Cowing, 13 Mass. 216; Spring v. Coffin, 10 Mass. 34; Wharton v. O'Hara, 2 Nott & McC. 65; Boyd v. Anderson, 1 Overt. 438; Moses v. McFerlan, 2 Burr. 1012; Lacoste v. Flotard, 1 Rep. Const. Ct. (S. C.) 467; Murray v. Carrot, 3 Call. 373; Treat v. Orono, 26 Me. 217; Colville v. Besly, 2 Denio, 139; Bates v. Cort, 2 Barn. &. C. 474. The case of Bates v. Cort shows to what extremity the English courts will go in insisting upon the validity and possibility of the consideration as a condition precedent to the right of action upon the promise. In this case, according to an agreement between


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