The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-11-19

discharge OF the residue Of the doh, hu
only OF the creditors security. And nno,
this he seems to lay the stress Of his arpu
ment. Is there any better ground for In
assumption that tue Siate'may mold her ere
ditor bound TO surrender 10 her his securi,,
for debt to which he has constitutions
right, by an implied contract OF surrender
for which the State gave no consideration
than there Is for the assumption that tb,
creditor NAV be held TO have surrepdere,
his debt without consideration? In eitbe
case II would be o nudum poctum. Bu
why stick in the bark! Why should o grea
State. In webbing her obligations. seek Il
be relieved from them Ly fnesse2 Is no
the surrender in this case Of the securi,,
really o surrender OF The residue OF the debt
Can The creditor ever realize anything from
IT unless he is allowed to set It off a. aims
the taxes ard demands OF the Common
wealth against him?
But another view Is presented, upon
which 1t is coBteDded The surrender by tht
creditor may be maintained. II is said thai
the validity OF The creditors claim-that hi:
coupons were receivable in payment OF
ttaXes-was disputed by the LEGISLATURE. And
the act Of 7th OF March, 1872, was passed
which forbid their being received in payment
right TO have them received in payment OF hi,
taxes, &c. And In order to adjust these
difficulties, and the questions os to The rights
and liabilities OF the parties respectively, an
agreement OF compromise was made be-
tween them, that the State would pay two
thirds of the amount Of the coupon ana the
holder would surrender bis right to receive
the remaining third in payment OF hIs taxes,
&c.
| There is no proof that there was any such
agreement or compromise by the parties.
| The act of 18th OF March does not show il
upon its face. In fact there il no PROPOSE
! ton contained in the act for such an agree
ment or compromise. The proposition is
not that the holder OF the coupon shall sur
render the right 10 set of the remaining one
third OF bis coupon against his taxes, but
| that he shall be deemed aud held TO ac-
quiesce in the provisions Of the act OF 1th
March. Nor is such an agreement proved
| by the Auditor or by any other testimony.
! Ii only appears that the coupon was pre-
spntcd to the Auditor for payment; that
| he paid two thirds OF il, and stamped
| 1t on the coupon as a payment on it, and
returned it with the credit endorsed on l.
to the owner. Not word said about his
acqWescing in the act OF 7tb OF March, 1880,
or that by receiving two thirds OF what was
due him he would be held t. have Surrtn-
dercd bis security for the balance. s'here
is nothing to show that he was induced by
the act of 18Th OF Mai ch 10 present ii TO the
Auditor for pay yment.
Whilst the act Of 30th OF March, 1871,
provided Ibat the coupons should he receiv-
able in payment of taxes, &c, it did not
take from the holder the right TO receive
|
| but for the depreciation OF heir marketable
value by tue Legislature falling TO provide
the means for their payment. they would
generally have been paid from the Treasury,
aud would rarely, If ever, been purchased
TO be used in payment Of taxes 1t is not
at all improbable, if the act OF l9lh Of March
had never been passed, that the coupons IN
question IN this case would have been pre-
sented TO the Auditor for payment just as
they were.
There is not a scintila OF proof that there
was actually any such contract OF cOmprO
mise between the Government and The
| holder of these coupons as is conjectured
in the argument OF defendants counsel,
or that By receiving two thirds OF what
the State owed him he aSsented to the sur
lrender of the balance, or his only security
for il: or that he thereby in fact aSsCnteC
TO-. and acqnisced in, Il previous act. which
| the Legislature bad no authority to pass.
which deprived him Of his securtits not
only in the coupons which were then due
but which should become due. The pre-
| tension rests alone and exclusively upOr
the declaration in the act that il the holder
OF the coupon receil ed part OF his inter
est under the provisions Of said act OF l0tl
| OF March, be shall be deemed and held &c
have acquiesced in the provisions Of the act
of 7th Of March. Now, ii the Legislature
bad any warrant or authority to raise suct
an implication /. should plainly appear that
| the holder OF the coupon had received IN
terest under the provisions OF said aci, and
| tha, he did not receive il under his contract
in part of what was due him from the state
which he bad a right TO do. There i nc
provision in the act that II he received :
part OF his interest be shall be held 10 have
received 1t under the provisions Of that act
Ii was incumbent, then,~On the Common
wealth TO show that he received it under
the provisions OF that act. 1t is not suli
cient that the Auditor paid 1t under thf
provisions Of that act, but il must be shown
that the holder knowingly, intelligently
and Intentionally received it under the pro-
visions OF that act, in order TO raise an i'm
plicatlon from his act, which would WORK
in him forfeiture OF his lawful securities
| A PARTY never can he held TO have sur
| rendered his rights under contract, unless
il appears that he made the surrender un
derstandingly and Intentionally and freely
| Nor can such surrender or release be im
piled By his act, unless he understood at tht
time that such would be the effect Of his act
II never can be implied by the act OF party
accepting q part of what he had right tC
demand that he released his security for tht
balance without consideration. Nor can Il
| be implied by his accepting OF part OF
what was due him that he thereby assented
TO an unconstitutional act which deprived
him OF his remaining securities.
The Legislature may pass an act cancel
| ling and abrogating the obligations OF th'
| State 10 her creditors, in consideration o.
the State assuming other obligations tC
them, provided the creditor accepts it. Bu
such act has no force or binding effect III II
notice OF it is brought home TO the creditor
and he accepts it. Without the assent o.
the creditor the act is nulIiiy. Ana Il
| give effect TO it, 1t is necessary that the as
sent 10 it by the creditor be clear and une
quivocal. o.,
Such is the character OF the act OF 3Otl
OF March, 1871, called the funding act.
bad no force or effect to any creditor OF tn
state, unless he clearly and unequvocall!Y
accepted it by surrendering the States obll
cations which be held, and accepting thos
which were offered in place OF them. There
was no provision in that act to release TIT
State from its obligation by implying th'
assent of the creditor by au actwhich wa
so tqulyoca in its character. as receiving
part of what the State owed him, whilst h'