The Central Law Journal.

ST. LOUIS, JANUARY 7, 1881.

CURRENT TOPICS.

It is generally understood that Mr. Justice Swayne is about to resign his seat upon the Federal Supreme Bench, and for the second time Mr. Hayes is to have the opportunity of exercising the highly important and difficult function of selecting from the bench and bar a successor worthy to wear the judicial ermine of the most august tribunal in the land. That it is impossible to over-estimate the importance of these appointments to the substantial interests of the country is a fact well known to the bar, and it is natural that much interest as to the president's choice should be manifested. Among those most prominently mentioned as worthy candidates for the place are Ex-Senator Stanley Matthews of Ohio, and Mr. Chief Justice Cooley of the Michigan Supreme Court. No one will deny the well-earned reputation for ability and learning of Mr. Matthews; and were his competitor other than he is, his appointment would not be one to cavil at. But Mr. Cooley's qualifications for the position are so transcendent, that we think there ought to be no hesitation as to a choice between the two men. A man, of a naturally judicial temperament, he has had the incalculable advantage of a long judicial experience upon the supreme bench of his own State, where, by the excellence of his opinions, he has earned for himself a national reputation for deep learning, great discernment and untiring industry. This has been supplemented by his works on Torts, Constitutional Limitations, and Taxation, which are unquestionably the ablest text books extant on those subjects. We do not believe it possible for any man whose life has been spent in the halls of legislation or in the contests of advocacy to come to a seat upon the Supreme Bench as well equipped as Mr. Cooley. We believe we do not go too far in saying that his selection would be satisfactory to the entire country, and peculiarly gratifying to the bench and bar of the North-West.

Mr. Justice Cooper, of Tennessee, is also mentioned in connection with this subject. His learning is not inferior to that of Mr. Vol. 12-No. 1.

Cooley, and his experience has been much the same. He also has had a long judicial training, and is well known to the profession as an author. He too has that genius which is happily called "an immense capacity for taking trouble," and which is never wanting in the composition of a great jurist. While the one is without doubt the foremost constitutional lawyer of the country, the other is unequalled in the wider fields of equity jurisprudence. In this rivalry each may find in the other a worthy competitor.

There is something peculiarly appropriate and desirable in the practice of recruiting the ranks of the Supreme Bench from those members of the Federal or State judiciary who have peculiarly distinguished themselves for learning, probity and industry as judges, rather than from the ranks of successful politicians or even statesmen. It insures the excellence of the Supreme Court, and what is scarcely less important, holds out to judges of inferior courts an inducement for extraordinary labor and study, which under our system of crowded dockets and small salaries the emoluments of office rarely furnish.

The bar of Missouri met in Convention at Kansas City on the 29th ult., to devise some method for the relief of the Supreme Court, which has an accumulation of some three years' work upon its docket. The plan, which the convention agreed, after a very short session, to recommend to the legislature, is the time-worn and trite device of a Supreme Court Commission.

A system of subordinate appellate courts, with a pecuniary limit to their jurisdiction, is far more preferable. The plan has been tried with admirable success in Illinois, and is now in operation in that State. The objection that such a system creates in effect two courts, one for the poor and another for the rich, seems upon reflection to be mere demagogism. It is not, however, the less likely to have its weight in the halls of legislation on that account. There is a more valid objection that such courts will, in those cases in which their jurisdiction is final, be tempted to disregard the precedents of the Supreme Court. But this difficulty may be met and overcome by having a member of the Supreme Court sit in circuit upon the bench of each of the inferior appellate courts.

existed before, is clearly retrospective."

There has always been some regret that, when the Federal judiciary was called upon to interpret and apply the prohibition in the Constitution of ex post facto laws,1 it did not reach the conclusion that retrospective laws were forbidden, as well where they applied to civil rights as when they concerned criminal liabilities or penalties. The famous twentyninth chapter of the great charter placed the protection of liberty and property upon the same basis, and the power to reach the one by indirection is subject to the same objections in principle, that could be urged against the power to reach the other by the same method. This is so strongly felt that the courts, while compelled by authority to admit the power to pass retrospective laws, nevertheless refuse to find that the power has been exercised in a particular case, unless the terms of the statute are such as imperatively to require it.2 Some States have deemed it wise to forbid retrospective laws altogether, and this has relieved the judicial mind of some embarrassment, though such a prohibition must still leave open the question what a retrospective law is. In New Hampshire it is held, that a statute regulating and modifying remedies is not retrospective, though made to apply to causes of action previously existing. The same ruling has been had in Tennessee; and even in criminal cases the modification of remedies may be made to apply to previous offenses, provided the modifications are not such as to deprive accused parties of substantial rights.5 On the other

3

1 Calder v. Bull, 3 Dall. 390; Satterlee v. Matthewson, 2 Pet. 380; Carpenter v. Pennsylvania, 17 How. 463; Cummings v. Missouri, 4 Wall. 277.

2 Dash v. Van Kleek, 7 Johns. 477; Gerry v. Stoneham, 1 Allen, 319; Donahoe v. Coleman, 46 Conn. 319; Chicago v. Rumsey, 87 Ill. 348; Rogers v. Greenbush, 58 Me. 395; Danville v. Pace, 25 Gratt. 1; Garrett v. Beaumont, 24 Miss. 377; State v. Ferguson, 62 Mo. 77; Baldwin v. Newark, 38 N. J. 158.

3 Rich v. Flanders, 39 N. H. 304; Simpson v. Savings Bank, 56 N. H. 466. See De Cordova v. Galves ton, 4 Texas, 470; Officer v. Young, 5 Yerg. 320. 4 Negroes v. Dabbs, 6 Yerg. 119.

5 State v. Wilson, 48 N. H. 398; Walter v. People. 32 N. Y. 147; Warren v. Commonwealth, 37 Pa. St. 45; Jones v. State, 1 Geo. 610; Seeley v. Thomas, 31 Ohio St. 301.

A retrospective law is one which is made to operate upon some subject, transaction or contract which existed before its passage, and which is intended to give it a different legal effect from that it would have had without it. The definition itself is sufficient to show that such a law must be inoperative so far as its effect would be to impair any obligation which has been assumed by contract;7 but the power to affirm and give legal validity to an invalid contract which parties had previously attempted to make on sufficient consideration, has often been affirmed, and is often strictly just.

The chief practical difficulty arises, when an attempt is made to cure defects which have occurred in judicial and other proceedings by reason of the failure to obey the requirements of law. That this may be done in a great variety of cases, is undoubted.9 That it can not be done in other cases, is But what are the cases in equally certain. which it may be done, and what those in which it may not be?

The principle on which the decided cases have ranged themselves is clear enough. A retrospective act which merely takes away a technical defense is not unjust and not incompetent. Therefore a mere informality in judicial or administrative proceedings may be cured retrospectively, provided the legislature which attempts to cure it, has power at the time to authorize such a proceeding as was actually had. 10 This is on the ground that a merely technical defense is not a meritorious defense, and therefore the party has

6 Woart v. Winnich, 3 N H. 473; 8. C., 14 Am. Dec. 384; Clark v. Clark, 10 N. H. 380.

7 Const. U. S., Art 1, sec. 10, cl. 1; White v. Crawford, 84 Pa. St. 433.

8 Goshen v. Stonington, 4 Conn. 225; s. c. 10 Am. Dec. 121; Lewis v. McElvain, 16 Ohio, 347; Hers v. Werts, 4 Serg. & R. 360; Savings Bank v. Allen, 28 Conn. 97; Woodruff v. Scruggs, 27 Ark. 26; s. c. 11 Am. Rep. 777; Thompson v. Morgan, 6 Minn. 292; Journeay v. Gibson, 56 Pa. St. 57; Grove v. Todd, 41 Md. 633. Compare Chestnut v. Shane, 16 Ohio, 599 and Barnet v. Barnet, 15 Serg. & R. 72; s. c. 16 Am. Dec. 516, with Railroad Co. v. Van Horn, 57 N. Y. 473, and Williams v. Wilbur, 67 Ind 42.

9 A large number of cases affirming the right are collected in the note to Goshen v. Stonington, 10 Am. Dec. 121, 131.

no right to demand protection in it. On the other hand, the legislature can not retrospectively make valid what it could not originally have authorized, and, therefore, can not validate judicial proceedings when the defect to be cured extends to the jurisdiction of the court which assumed to take them. It is equally powerless to validate private acts or administrative proceedings, when the defects are of a similar nature. can not, for example, validate a deed whereby a party undertakes to convey, contrary to the express terms under which he holds;11 or one which is a fraud upon other parties concerned ; 12 or a fraudulent tax sale. 13

It

Perhaps more often than in any other cases, the legislature has attempted to exercise its curative power to make good the sales of lands for taxes, where there has been a failure to comply with the law. In some cases this is done prospectively; the legislature declaring that such and such defects shall not invalidate the proceedings. This is the same as saying that the defects enumerated shall be deemed immaterial; and there is no doubt of the competency so to declare, where substantial rights do not depend upon them. The power to do this has been carried to very great lengths in some cases. 14

It has been generally agreed that the failure of the proper officer to give any notice to which the tax payer was entitled, and which was important to the protection of his interests, was such a defect as the legislature could not retrospectively cure. The recent case in Massachusetts of Forster v. Forster, 15 is very clear on this point, and at the same time, perhaps, comes as near the line between what is admissible and what is not, as any case to be found in the books. The tax collector was required by law, when taxes on real estate were delinquent, to advertise that he would sell so much of the real estate, or the rents and profits of the whole estate, for

11 Shouk v. Brown, 61 Pa. St. 827.

12 Railroad Co. v. Railroad Co. 50 N. H. 50. 13 Conway v. Cable, 87 Ill. 82.

14 See Eldridge v. Kuehl, 27 Iowa, 160; Rhodes v. Sexton, 33 lowa, 540. Compare Wilson v. McKennon, 52 Ill. 43; Reed v. Tyler, 56 Ill. 288; Silsbee v. Stockle (Sup. Ct. Mich.), 7 North West. R. 227; Reading v. Finney, 78 Pa. St. 467.

111 Cent. L. J. 407.

such term of time as should be sufficient to discharge the taxes and charges. The collector, instead of obeying this law, advertised that he would sell the estate, or such undivided portion thereof as might be necessary. The court held that all sales made under this notice were void. Retrospectively the legislature attempted to cure them, and was held to be without power for the purpose.

We say this case is near the line, because here a notice was given, which was as likely to attract the attention of the parties concerned, as would be one which complied with the law; and presumptively he had every legal opportunity to redeem his lands. It may therefore be urged that he was not injured by the irregularity, and that it should be classed with others which give the opportunity for a mere technical defense. But the notice is not given for the information of the delinquent tax-payer exclusively; it is meant for the information of the public, and to invite the public to the proposed tax sale. The intent is that enforcing the tax shall be as little burdensome as possible to the party taxed; and if this intent is defeated by the notice actually given, he has a right to complain.

Now the notice actually given in this case was erroneous on its face. It notified a tax sale, but not a legal tax sale. The public would not be invited by it to attend the sale, because they would know from its terms that a sale under it would be invalid under the law as it then stood. They could not know that any curative statute would be passed, and would not, therefore, be likely to appear at the sale. The result would be that the owner of the estate would lose the benefit of the competition at the sale which the statute meant to give him. This would be a substantial loss, and the error in the notice could not be a mere irregularity.

But while all this is perfectly true, and the decision, as we think, undoubtedly sound, there is very great difficulty and some uncertainty in applying the principle. The very object of curative statutes is to make good proceedings in which statutory requirements have not been observed; and it is supposable in almost any case that, by reason of the neglect, some other act, which would have been important to the party, has not been done. If one curative law may be held good, and an

other not good, the result is that the validity of leglslation in this class of cases must depend upon the view the court may take of its justice. If, in the opinion of the court, it operates unjustly, it must be held void; but if not, it may be upheld.16 This is not a satisfactory condition of the law; for the theory of our Government undoubtedly refers all mere considerations of equity in the enactment of laws to the legislature itself, with powers of final decision. 17 Nevertheless, there are some cases where the course of legislation itself forces upon the court the necessity of such a decision. A legislature, for example, passes an act for the limitation of actions, and makes it applicable to causes of action already existing. It is unquestionable that this may be done; provided, a reasonable time is allowed in which to bring suit. But what is a reasonable time? The question is one of justice and fair dealing; and the court will sustain one act and declare another null, according as it shall think its operation would be just or unjust. 18 And the distinction between directory and mandatory provisions of a statute rest largely upon the same princi ple. Infinite mischief would be done, were the courts to hold that all legislative enactments must be strictly complied with-elections would fail, and tax proceedings fall to the ground, especially all those which are special and exceptional in their nature. The courts sustain some, and they refuse to sustain others; and in many cases they have no other guide than their judgment, whether the irregularities which have intervened are of a nature to operate unjustly upon the rights of parties. 19

MPOSSIBILITY OF PERFORMANCE AS A DEFENSE TO ACTIONS EX CONTRACTU. In actions founded on contracts, one of the important questions likely to arise is, whether the contract is a possible one; and if impossible, how far and under what circumstances impossibility of performance constitutes a valid and complete defense to such actions. It is the purpose of this

16 Watson v. Bailey, 1 Binney, 477; Goshone v. Purcell, 11 Ohio St. 641.

17 Bennett v. Boggs, Baldw. 74; Pennsylvania R. Co. v. Reblet, 66 Pa. St. 164, 169.

18 Terry v. Anderson, 95 U. S. 628.

19 French v. Edwards, 13 Wall. 506; Toney v. Milbury, 21 Pick. 67; Koch v. Bridges, 45 Miss. 247.

article to discuss the subject in its different phases, and to unfold the reasons assigned for the decisions rendered in the leading cases. The subject, however, is too extensive to receive an exhaustive treatment in an article of this compass. It will, therefore, be possible only to give a brief outline of the subject, and present its salient points.

Impossibility of performance as a defense to actions on contracts may be discussed under two leading heads:

I. Where the impossibility relates to the consideration of the contract, i. e., where the promisee is unable to execute the consideration, either because it is from some cause or other, impossible to perform, or because it is illegal under the laws of the land.

II. Where the impossibility exists in the performance of the promise, arising, 1. from the acts of the promisee; 2. from the acts of God, or inevitable accident; 3. from the act of the law.

I. It is a universal rule of the law of contracts, that to entitle a promisee to maintain an action on a contract, he must show that a valuable consideration supports the promise, and that he either has executed, or is able and willing to execute, the same. This forms a condition precedent to his right of action, which under all circumstances is indispensable. When, therefore, the consideration is impossible, from whatever cause the impossibility may arise, except the act of the promisor, it constitutes a complete defense to an action by the promisee for the breach of the contract by the promisor. In this respect the law is different in cases of impossibility of consideration from what it is in cases of impossibility of performance on the part of the promisor. The action is supposed to be brought against the promisor for his breach of the contract. The theory of the action is, that the plaintiff has suffered an injury by the breach. He must therefore prove, or the law must imply, that he has suffered from such breach. But he could not have suffered any injury, if he has failed to execute 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 contract, unless he caused the impossibility. His rights, therefore, under the contract are destroyed, and his right of action taken away. But in the case of impossibility arising in the performance of the promise by the promisor, the plaintiff has suffered an injury; for he is supposed to have parted with the consideration, or is ready and able to execute it, and the breach has deprived him of an advantage without any default on his part. Whether, therefore, the defendant is excused from performance on account of its impossibility, depends upon a great variety of circumstances, and must be governed by a much narrower rule than the cases of impossibility of consideration.

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, and 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; s. 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 promise, 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 no 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 Parsons 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, and the promisee is denied the right to enforce its performance. 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