Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1862-10-11


msnt for the payment Of money, a. distin-
guished from one for the delivery Of things
Of any other description. A merchants
credit and fortune may have been ruined,
the most favorable opportunity for specula.
ton may have been lost, the most profita.
bic bargain or enterprise abandoned in con.
sequence Of the imrunctuality Of the debt.
or. and yet the creditor will be confined ia
a recovery Of the debt with per cent. in.
terest during the time that payment has
been delayed. and proof that the compsn-
sation thus given is insufficient and falls
far short Of the real loss. rejected as Who'll.
ly immaterial in point Of law. Even,
therefore, if stipulation that what the
law declares a leg i tender shall not be so, OF
that debt shall be payable in ono kind Of
legal currency to the exclusion Of others,
is not to b. get aside summarily as contra
ry to public policy, it must still. as it
would seem. fail Of effect, when brought to
tho test Of an attempt to enforce it by suit
for damages.
I am, however, reminded by counsel, that
the bond on which plaintiff seeks to recover
in this instance, besides stipvating for pay.
ment in gold and silver money of the United
States, also stipulates "that no existing law
or laws. and no law or laws which may b. made
hereafter enacted, shall operate, or be con.
strued as operating to allow payment to be
in any other money, than that above designa.
tod "the said obligors expressly waived tho
benefit derived, or to be derived from sucl,
law or laws" and these clauses arc said to be
at all events binding, and to entitle the plaint-
if to insist on the terms Of the bond, whatev.
er might have been the rule if they had not
been introduced. But, with every DISPOSE
tion to give careful wait to this argument.
which was carefully considered by the Court
in consultation. am unable to see that it va.
ries tho case. or renders anything that has
been said hitherto inapplicable. If the sub
ject-matter Of this contract is such that it may
be dealt with freely at the pleasure Of the
parties irrespectively of the words of the stat.
ute. then their express agreement that the
bond should be paid sin specie" should have
that effect given to it which they must be pre-
sumed to have intended, and tho debt be
treated as one which gold and silver can alone
satisfy. but il, on the other hand, as have
endeavored to show. and think most probably.
the matter is one which the law reserves ex.
clusively for it's own action, and will not suf.
fer to b. touched by any private or inferior
hand. then stipulation that it shall not be
regulated by the law. must necessarily, b. void
and imperative. 1t is obvious that parties
cannot nullify the provisions of a statute. by
anticipation, on any point where they would
necessarily be bound by them. if the statute
had been passed; and that the question wheth-
or contract is contrary to law,is to be solved
by looking at the law and the contract, and
seeing whether the one contravenes or is op-
posed to the letter and spirit Of the other, aud
not merely by considering whether the law was
made before the contarct, orthe contract before
the law. Tho State Legislatures are, indeed
by the Constitution of the United State. pro.
hibitsd from impairing the obligations Of con.
tracts, but there is no such restraint on the
National Legislature. and when the power Of
Congress 10 exercised retrospsctively as it or.
dinarily is, and in the nature Of things gener-
ally must be in legisla,ing with reference to
the currency. and declaring what shall be
money and what money shall be worth. it will
apply as effsctually to past debts as to those
which are subsequently, contracted. notwith-
standing anything which may bs said to the
contrary in the agreement in which the debt
has ito origin.
It is, however. unnecessary to express
final opinion on these points, which concern
the plaintiffs right under the contract, because
it is clear that even it hs has the right which
he claims. ho has mistaken the remedy, and
must resort to longer and less direct path
than that which be ;s endeavoripg to pursue.
II a nond were con6itiuu.;a: for the .:vncnt
Of certain number Of bushels of wheat, or for
a specific amount Of foreign coin, every one
would admit that the entry ofjudgment on .
warrant Of an attorney accompanying the bond.
would not justify the issuing Of an execution
addressed to the sheriff. and commanding him
to sell the goods and chattsls Of the defend.
ents for, and payable only in the wheat or coin
which hs had promised to give. and which he
was in default for not giving, because the pro-
psr redress wonld liz in acive. fscios or other
proceeding on the Judgment. Of . nature to
bring the Injury inflicted by tho breach before
a court and jury. and enable them 10 ascertain
ito exact nature. and what amount Of damages
should be awarded by way Of compensation.
And it would ssem very plain that the same
course must be pursued when the condition Is
for the payment of particular sort Of domes-
tie currency, to tho exclusion Of every other.
II the breach Of condition to pay in gold and
not in silver, or In silver and not in treasury
notes, be an injury In the sense in which in
jury implies 4 violation Of legal right, q dis
tinguishsd from thu im6iction Of loss or dam.
agv without legal wrong. still the amount Of
injury ia obvioSsly question Of fact depend
ing On the state Of the market for bullion when
ths default occurs, and requiring the introduc-
ton of evidence on one side, or on both, for its
proper adjustment. Like other questions Of
the came sort. Il should therefore be tried by
. jury. and solved By their verdict. guided BY
thu charen of = emit Rnf the nlsinti8 In.