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business at Hudson, in the State of Michigan, owning a stock of goods consisting of such articles of merchandise as those before men. tioned, of the value of $4,000. They owed the respondents $4,500 and were largely in debt to other creditors, amounting in the whole, as estimated by the senior partner of the res420*] pondent firm, to the sum of *$8,000. Prior to the sale of their stock of goods to the respondents, or about the time they commenced business, they borrowed $2,500 of their father, no part of which was ever paid, except the sum of $300 of the principal.

Enough appears to show that the respondent firm became fearful that their debtors would not be able either to pay their debts or to continue their business, and that it was very desirable to enforce payment or to procure security. Doubtless it was such motives that induced the senior partner to make a trip to the place where the insolvent debtors were doing business. Before going there, however, he made a short visit to his brother-in-law, who resides forty miles beyond the place where his insolvent debtors lived. As shown in the proofs, on his return he called at the store of his debtors, the elder of the two being present, the other being sick at his dwelling-house. Conversation ensued in respect to the pecuniary condition of the debtor firm, and the creditor informed the partner present that he came to look over their matters, and he was permitted to examine the goods on hand and to look over their books. Estimates were made by each of them as to the value of the stock and, as they differed in opinion as to its value, they concluded to make an inventory of the same, which was done, and they also computed the debts of the debtor firm and found that their indebtedness amounted to $8,000, including the amount due to their father. Having completed the examination of the goods and of the books, the respondent remarked that they had got only $4,000 or $5,000 to pay their whole indebtedness, amounting to $8,000, and added to the effect that if they did not pay he should remain, and on Monday would throw them into bankruptcy. He did remain, and on the following day (Sunday) dined with his debtors at their dwelling-house, the junior member of the firm being still confined in the house. Monday came, but he did not attempt to institute proceedings in bankruptcy, but proposed that they should sell their whole stock of goods to some third person, to be named by him, for the benefit of his firm; and to induce the debtors 421*] to accept the *proposal, he accompanied it with the assurance that they, the debtors, should remain in possession of the goods, as the agents of the purchasers, to sell the goods on commission, as alleged in the bill of complaint, and that his firm or their agent, the nominal purchaser, would, from time to time, furnish them with additional goods to replen ish their stock, to be held and sold by the insolvent debtors on the same terms.

Embarrassed as the owners of the goods were, they were pretty easily persuaded by the threats of the respondent and by the false and fraudulent promises and assurances, made in behalf of the respondents, to accept the deceptive, alluring and fraudulent proposals. Objections, indeed, were at first made by the own ers of the goods, and one of them inquired of his wily creditor what they should do when

their other creditors presented their bills for payment; but the artful negotiator soon si lenced every misgiving of that sort by the fraudulent suggestion, as follows: "Pay no attention to them; they can't collect anything."

Difficulties in that quarter having been overcome, it only remained to dispose of the debt which the young men owed to their father. Expedients to accomplish that end were soon devised by the unscrupulous creditor. He advised the young men to communicate with their father, and that he and they, or one of them, should immediately go to the place of the father's residence in order to induce him to relinquish his claim, so that the proposed arrange ment could be safely carried into effect. Measures were immediately adopted to notify the father and the brother-in-law of the respondent, who resided in the same place, of their intended visit, for which purpose the respondent sent a telegram to his brother-in-law, of the following terms: "Expect me next train. Tell the lawyer to be in his office." Information of the intended visit was also communicated to the father by the elder son, who was authorized to act for his partner as well as for himself. On their arrival at the depot of the place of destination, they were met by the brother-in-law of the respondent, who had previously [*422 been designated as the "third person" to whom the stock of goods was to be conveyed. Notice of their arrival was given to the father by his son, and they went immediately to the office of the attorney-at-law, referred to in the telegram sent by the respondent, and there they met the respondent and his brother-in-law.

Nothing remained to be done to render the scheme successful except to dispose of the debt of the father. Plausible arguments to promote that purpose were presented by the respondent. He commenced the conversation by artful explanations to show that the arrangement suggested was essential to save the insolvent debtors from ruin; saying that the boys were in a bad condition; that he was anxious to help them; that he did not want to see them thrown out of business.

Inquiry was then made of him by the father of the debtors, what he proposed to do; to which he promptly replied to the effect following: that he proposed to buy the stock of goods and run the store himself, through a third party, retaining the young men to conduct the business the same as they had done; that he and his partner would re-stock the store with such goods as they should need, and keep it stocked for the time proposed to the debtors, and repeated all the promises and assurances previously made and given to the insolvent debtors, among which were the promise and assurance that the debtors should remain in possession of the goods and be constituted the agents of the purchasers to sell the same, and that they should receive to their own use the net profits of the sales, and should also have their living out of the business.

Beyond all doubt these insidious remarks were intended as an introduction to the proposition to be made to the father of the debtors, which was, that in order to effect the arrangement it would be necessary that he should withdraw his claim, so that the purchasers would not be exposed to any trouble in carrying out the proposal, until they should get their pay, when the goods should revert to the debtors.

Alluring and plausible as these suggestions 423*] were to the father of the insolvent young men, still he inquired in reply whether he ought not to have some writing to insure the performance of the stipulations on the part of the purchasers of the goods, but the respondent immediately remarked that nothing of the kind was necessary; that he had always done by the boys as he agreed and always intended to do so.

Suffice it to say that the colloquy was continued for some time, during which one or two writings were drawn, which were destroyed because they were not satisfactory, and the negotiation terminated in the adoption of the original proposal made by the respondent, without any writing being given to secure the promises and assurances given, either to the father or the owners of the stock of goods. They, the owners of the goods, executed a bill of sale of the same to the brother-in-law of the respondent, the price being fixed at $3,482.34, and he paid the consideration by a draft for $500, a check for $170.59, cash $200, and three notes signed by the nominal puchaser, each for the sum of $870.60. Care was taken at the time that the whole consideration, including the draft, check, money and notes, should be delivered to the representative of the insolvent debtors, but the evidence shows that he, the debtor, immediately passed over the whole amount to the respondent, who gave a discharge of the debt of his firm. By this contrivance the respondent, through his brother-in-law, became the purchaser of all the stock in trade belonging to the insolvent debtors, which he accepted as a full payment of the debt due to his firm. Agreeably to the arrangement, the father of the debtors also withdrew his claim and executed a discharge to his sons for the same without being paid even to the amount of a dollar.

Steeped in fraud as the transaction was, the court here does not hesitate to decide that the discharge procured from the father of his debt against his sons is null and void, and that when he found that all the promises and assurances made and given by the respondent were broken, and that they were evidently never intended to be performed, he had a right to regard his debt as in full force. Proof of a more 424*] *satisfactory character to establish that proposition can hardly be imagined, than that which is exhibited in the record.

Before the week elapsed the nominal purchaser of the goods visited the bankrupts at their place of business, and pretending that he had been deceived by them in respect to a lien on the goods, procured from them an assignment of their books, and failing to induce them to turn over to him the only cow they owned, he demanded the goods, and the debtors having refused to deliver the same, he sued out a writ of replevin and took the same into his possession, leaving them stripped of everything except the cow, which they refused to convey.

Examined in connection with the attending circumstances it is manifest that the discharge of the debt procured from the father is null and void, because it was obtained by gross deception, misrepresentation, and shameless fraud. Mingled threats and promises induced the insolvent debtors to accept the proposal of the respondent, and every candid and impartial

investigator of the facts given in evidence must admit that it was the same appliances, strengthened by the desire of the father that his sons might be able to continue in business, that induced him to execute the discharge. Twenty-two hundred dollars of the principal loaned by him to his sons were still due to him, and he was not paid one dollar for the discharge on the occasion. Nor is there any better foundation for the charge that the proceedings in bankruptcy were instituted and prosecuted in collusion with the bankrupts and with their consent and approbation, as the charge is not supported by any satisfactory evidence.

II. Suppose that is so; still it is insisted that the complainant is not entitled to maintain the suit, because the decree adjudging the debtors to be bankrupts was procured by fraud. Support to that proposition is not found in any defect in the decree of the district court where it was entered, nor in any of the proceedings which led to it; nor is any reference made in the assignment of errors to the evidence invoked to establish the proposition, unless it be to the charge *that the [*425 insolvent debtors were not indebted to the petitioning creditor, which has already been shown to be without any just foundation.

Defects of the kind should be specifically pointed out, and if they consist of matters of fact, the evidence to support the assignment should be the subject of distinct reference; but the court is not inclined to rest the decision upon any imperfections in the assignment of errors. Influenced by that determination, the whole evidence reported has been examined, and our conclusion is that the proposition is not proved. Nor is the court inclined to stop there, as we are all of the opinion that the decree of the district court in such a case is conclusive of the fact decreed, unless when it is called in question in the court where it was entered or by some direct proceeding in some other court of competent jurisdiction.

Jurisdiction is certainly conferred upon the district court in such a case, if the petition presented sets forth the required facts, and the court upon proof of service thereof finds the facts set forth in the petition to be true; and it is equally certain that the district court has jurisdiction of all acts, matters and things to be done under and in virtue of the bankruptcy until the final distribution and settlement of the estate of the bankrupt and the close of the proceedings.

Power, it is true, is vested in the circuit courts in certain cases to revise the doings of the district courts, and in certain other cases an appeal is allowed from the district court to the circuit court, but it is a sufficient answer to every suggestion of that sort, that no attempt was made in this case to seek a revision of the decree in any other tribunal. Nothing of the kind is suggested, nor can it be, as the record shows a regular decree, unrevised and in full force.

Grant that; and still the proposition is submitted that it may be assigned for error that it was procured by fraud, and that such an assignment is valid, even though the decree was introduced as collateral evidence in a suit at law or in equity. But the court here is entirely of a different opinion, as the [*426 district courts are created by an Act of Con

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Foreign judgments by the rules of the common law were only prima facie evidence of the debt adjudged to be due to the plaintiff, and every such judgment was open to examination, not only to show that the court in which it was rendered had no jurisdiction of the subject-matter, but also to show that the judgment was fraudulently obtained. Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdiction.

Lord v. Chadbourne, 42 Me., 429.

It could only be done directly by writ of error, petition for new trial, or by bill in chancery.

Cammell v. Sewell, 3 Hurls. & N., 617. Third persons only, says Saunders, could set up the defense of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or a warrant of attorney. 2 Saund. Pl. & Ev., pt. 1, p. 63; Christmas v. Russell, 5 Wall., 304, 18 L. ed. 479.

Judgments of any court, it is sometimes said, may be impeached by strangers to them for fraud or collusion, but the proposition as stated is subject to certain limitations, as it is only those strangers who, if the judgment is given full credit and effect, would be prejudiced in regard to some pre-existing right who are permitted to set up such a defense. Defenses of the kind may be set up by such strangers. Hence the rule that whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the pose of defrauding some. third person, such third person may escape from the injury thus 427*] attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment was obtained.

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Crosby v. Leng, 12 East, 409; Ins. Co. v. Wilson, 34 N. Y., 281; Hall v. Hamlin, 2 Watts, 354; Pond v. Makepeace, 2 Metc., 116; Sidensparker v. Sidensparker, 52 Me., 488. Third persons only, however, can set such a defense, as the rule is well settled that neither the parties nor those entitled to manage the cause or to appeal from the judgment are permitted to make such defense in any collateral issue.

Homer v. Fish, 1 Pick., 435; R. R. Co. v. Sparhawk, 1 Allen, 448; Atkinsons v. Allen, 12 Vt., 624; Granger v. Clark, 22 Me., 330; Hammond v. Wilder, 25 Vt., 346; Coit v. Haven, 30 Conn., 198; Hollister v. Abbott, 11 Foster, 448; 2 Phil. Ev., 80, n. 291, 5th Am. ed.; Christmas v. Russell, 5 Wall., 306, 18 L. ed. 480; Peck v. Woodbridge, 3 Day, 30.

Unquestionably, a judgment may be impeached for the purpose of showing that it was procured by the debtor for the purpose of avoiding the operation of the Bankrupt Act. Evidence for that purpose is admissible to show: (1) That it was procured within four

months prior to filing the petition in bankruptcy, and with a view of giving the plaintiff a preference over the other creditors. (2) That the debtor was insolvent at the time. (3) That the plaintiff had at the time reasonable cause to believe that the defendant was insolvent, and that he procured the judgment to give the plaintiff such a preference.

Buchanan v. Smith, 16 Wall., 277, 21 L. ed. 280; Wager v. Hall, 16 Wall., 590, 21 L. ed. 504.

Competent evidence is admissible to prove those facts, but a judgment is no more Îiable to collateral impeachment in proceedings under the Bankrupt Act, except for the purpose of showing that the judgment in question was designed as a means of avoiding the equal distribution of the debtor's estate among his creditors, than it is to such impeachment in the courts where it was rendered. Palmer v. Preston, 45 Vt., 159.

Power to establish uniform laws upon the subject of bankruptcy throughout the United States is conferred upon Congress, and Congress having exercised the power it has *become an exclusive power. By the [*428 Act of Congress the jurisdiction to adjudge such insolvent debtors as are described in the 39 section of the Act to be bankrupts is vested in the district courts, and it follows that such a judgment is entitled to the same verity, and is no more liable to be impeached collaterally than any other judgments or decrees rendered of itself shows that the case before the court by courts possessing general jurisdiction, which is controlled by the general rule that where it appears that the court had jurisdiction of the subject-matter, and that the defendant was with process or duly served voluntarily appeared and made defense, the judgment is conclusive and is not open to any inquiry upon the merits. 2 Sm. L. Cas., 7th ed., p. 622; Freem. Judg., 2d ed., § 606; Hampton v. McConnel, 3 Wheat. 234; Nations v. Johnson, 24 How., 203; 16 L. ed. 631; D'Arcy v. Ketchum, 11 How., 166; Webster v. Reed, 11 How., 460.

Exactly the same rule is applicable to the case before the court, as it is clear that the district court had jurisdiction of the petition and that there is not even a suggestion that the notice required by law was not given as the law directs. In re Robinson, 6 Blatchf., 255; Wimberly v. Hurst, 33 Ill., 172; Corey Ripley, 57 Me., 69; Bk. v. Olcott, 46 N. Y., 15; Fortman v. Rottier, 8 Ohio St., 556; Revell v. Blake, L. R., 7 C. P., 308.

V.

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Such a decree ajudging a debtor to be bankrupt is in the nature of a decree in rem as respects the status of the party, and in case the court rendering it has jurisdiction it is only assailable by a direct proceeding in a petent court, if due notice was given and the adjudication is correct in form. Way v. Howe, 108 Mass., 503; Ex parte Wieland, L. R., 5 Ch. App., 489; Woodruff v. Taylor, 20 Vt., 65; Mankin v. Chandler, 2 Brock., 126; Shawhan v. Wherritt, 7 How., 643; Imrie v. Castrique, 8 C. B. (N. S.), 407; Carter v. Dimmock, 4 H. L. Cas., 346.

III. Preferences, as well as fraudulent conveyances, if made within four months before the filing of the petition by or against the bank. rupt, are forbidden by the Bankrupt Act; but

PPEAL from the Circuit Court of the Unit

three things must concur in order that the ed States for the Middle District of Ten

429*] transaction *may come within the prohibition and be affected by it as an illegal payment, security, or transfer: (1) That the payment, pledge, assignment, transfer or conveyance was made by the bankrupt, within the period mentioned, and with a view to give a preference to one or more of his creditors, or to a person having a claim against him, or who was under some liability on his account. (2) That the person making the payment, pledge, assignment, transfer or conveyance was insolvent or in contemplation of insolvency at the time the preference was secured. (3) That the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, had reasonable cause to believe that the person was insolvent and that the payment, pledge, assignment, transfer or conveyance was made in fraud of the provisions of the Bankrupt Act. Wager v. Hall, supra; Scammon v. Cole, 5 Nat. Bk. Reg., 259.

Creditors are forbidden to receive such a preference from such a debtor, and the provision is that if such a debtor shall be adjudged a bankrupt the assignee may recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to that Act, provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on the Bankrupt Act was intended, or that the debtor was insolvent; and the farther provision is, that such creditor shall not be allowed to prove his debt in bankruptcy. 14 Stat. at L., 536.

nessee.

This action was brought in the Chancery Court for Giles County, Tennessee, by the appellee, a resident of Tennessee, against the appellant, a resident of New York, and one J. C. Walker, a citizen of Tennessee. The State Court granted the petition of the appellant for the removal of the cause to the Circuit Court of the United States, holding that Walker was not a necessary party. On petition of the complainant, however, the circuit court dismissed the case for want of jurisdiction, and remanded it to the State Court. From this decree the present appeal is taken.

The case further appears in the opinion.
Mr. Ed. Baxter, for appellant.

Messrs. Wm. F. & Henry Cooper, for appellee.

Mr. Chief Justice Waite delivered the opinion of the court:

The order of the circuit court, dismissing this cause and remanding it to the State Court, is affirmed.

The suit was brought originally in the State Court for the foreclosure of a mortgage or deed of trust, executed by Gardner, the appellant, to John C. Walker, as trustee, to secure the payment of a debt due to the complainant's intestate.

Walker, as trustee, was authorized, upon default of payment of the debt, to take possession of the mortgaged premises and sell them upon certain specified terms and conditions. It is claimed in the bill, that he had not qualified himself under the laws of Tennessee to act under this power, and the suit was brought to foreclose the mortgage in chancery without ref

Evidently that part of the decree which is the subject of the third complaint is founded upon that provision, and inasmuch as the facts exhibited in the record bring the case in all respects within the regulation there prescribed, it is clear that it was competent for the cir-erence to the special power of sale. Walker, cuit court to render such a decree, and the court here sees no reason to question the action of the circuit court. Decree affirmed.

v.

RICHARD C. GARDNER, Appt., JOHN C. BROWN, Admr. of Richard W. Vasser, Deceased.

(See S. C., 21 Wall., 36-41.)

the trustee, was made co-defendant with Gardner, the mortgagor, the *object being [*41 to reach the property in his hands as trustee, and subject it, through the ordinary powers of of a court of chancery, to the payment of the debt it was given to secure.

The mortgagor moved to transfer the cause, as to himself, to the circuit court, under the provisions of the Act of July 27, 1866, 14 Stat. at L., 306. This motion could not be granted unless there could be a final determination of the cause, so far as it concerned him, without

Removal of cause from State Court, by one de- the presence of the other defendant as a party.

fendant.

1. A motion of one defendant to transfer the cause, as to himself, from the State Court to the U. S. Circuit Court, under the provisions of the Act of July 27, 1866, cannot be granted unless there can be a final determination of the cause, so far as it concerns him, without the presence of the other defendant as a party.

The State Court granted the motion and made the order of removal, but the circuit court, being of the opinion that Walker was a necessary party to the relief asked against Gardner, refused to entertain jurisdiction and remanded the cause. In this we think the circuit court was right. The bill prayed a fore2. Where the bill was one for the foreclosure of closure of the mortgage by a sale of the land. a mortgage, this required the presence of the party This required the presence of the party holdholding the legal title to the land, and where the cause was not removable as to him, it could not being the legal title. The complainant had only

removed as to the other party who made the mo. tion.

[No. 761.]

Submitted Dec. 21, 1874. Decided Jan. 11, 1875. NOTE.-Removal of cause by one of two or more defendants--see note, 29 L. ed. U. S. 899.

the equitable title. Walker held the legal title. The final determination of the controversy, therefore, required his presence, and as the cause was not removable as to him, under the authority of Coal Co. v. Blatchford, 11 Wall., 172, 20 L. ed., 179, it could not be removed as to Gardner alone.

ANDREW HAMILTON, Francis Bessicks, and Nathaniel K. Griffin, as A. Hamilton and Company, Plffs. in Err.,

v.

JOSEPH R. DILLIN.

(See S. C., 21 Wall., 73-97.) Permit to purchase cotton in insurrectionary States.

1. The United States Government had power to impose a condition requiring the payment of four cents per pound for a permit to purchase cotton in and transport it from the insurrectionary States during the late civil war.

2. By the Act of July 13, 1861, the President was authorized to license commercial intercourse with any such part of such States while in insurrection, and in such articles and for such time and by such persons, as he, in his discretion, might think conducive to the public interest; and such intercourse so far as by him licensed, was to be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the

Treasury.

3. Under the authority of this Act, the President and Secretary of the Treasury could license cotton to be purchased in, and transported from insurrectionary districts, on condition that the parties availing themselves of the license should pay to the Government four cents per pound and all other fees. Such license is not inconsistent with the internal revenue law.

4. Where plaintiffs voluntarily paid the license fee, it cannot be recovered back. 5. The "condition of hostility" remained impressed upon the entire territory of the States declared to be in insurrection until it was authorita tively removed by the Proclamation of the Presidont at the close of the war.

6. The Act of July 2, 1864. recognized and confirmed the regulations of the Secretary of the Treasury, on this subject.

[No. 7.]

Argued Oct. 27, 1874. Decided Jan. 11, 1875. IN N ERROR to the Circuit Court of the United States for the Middle District of Tennessee. Suit was brought by the defendant in error in the Circuit Court of Davidson County, Tennessee, to recover back certain sums of money paid for permits to ship cotton. Upon petition of defendant the case was removed by certiorari to the court below, in which judgment was given for the defendant. Whereupon the plaintiffs sued out this writ of error.

The next case, of McClellan v. U. S. post, 534, was argued and decided herewith.

The case is fully stated by the court. Messrs. T. D. Lincoln, Edward Jordan, C. Cole, H. H. Harrison. (in No. 7), Wm. M. Evarts, and J. W. Denver and C. F. Peck (in No. 11), for plaintiffs in error:

The Act of Congress of July 13, 1861, conferred no legal power on the Secretary of the Treasury to authorize said exactions.

If any part of that Act conferred such power it was the proviso of the 5th section thereof. The sole power conferred by. that proviso upon the Secretary of the Treasury, in respect to the trade which it authorized the President to license, was to regulate it.

The Sea Line, 5 Wall., 630, 18 L. ed., 618; U. S. v. Lane, 8 Wall., 185, 19 L. ed., 445.

The power to regulate the licensed trade did not include the power to make or authorize such exactions.

NOTE-Effect of war on dealings between citi zens of belligerent powers-see note to Scholefield v. Eichelberger, 8 L. ed. U. S. 793.

The Mayor v. Second Av. R. Co., 21 How. Pr., 257, affirmed, 32 N. Y., 261; The Mayor v. Third Ave. R. Co., 33 N. Y., 42; Commonwealth v. Stodder, 2 Cush., 562; Dunham v. The Trustees of Rochester, 5 Cow., 462; Wynehamer v. The People, 13 N. Y., 378; Cooley, Const. Lim., 577.

If it was the intent and purpose of the said Act of July 13, 1861, to empower the Secretary of the Treasury to authorize the making of said exactions, the said Act of Congress was to that extent unconstitutional and void.

If the Act in question had the intent and purpose specified in the request, it was its intent and purpose to empower the Secretary of the Treasury to authorize the defendant to levy and collect taxes, and the Act was, therefore, to that extent unconstitutional and void.

U. S. Const., art., I., § 1; see Cin., W. & Z. R. Co. v. Com. Clinton Co., 1 Ohio St., 77; Rice v. Foster, 4 Harr. (Del.), 479; Parker v. Commonwealth, 6 Pa. 507; St. John v. East St. Louis, 50 Ill., 92.

Said exactions have not been legalized by the Act of Congress of July 2, 1864.

If any part of that Act can be supposed to have had any such effect, it must be the 3d section, which merely provides that moneys arising from fees collected under the regulations in question, and from other sources, shall, after satisfying all proper and necessary expenses, be paid into the Treasury.

There is nothing in this provision which can properly be held to have ratified the action of the Secretary in prescribing these exactions. It was proper that the money in question should be in the Treasury, whether rightfully or wrongfully exacted.

The 11th section was entirely prospective, and related exclusively to the power of the Secretary, under the Act of which it was a part.

To give such effect to the Act would be, by retroactive legislation, to impair and destroy vested rights, and such an intent will not be attributed to the Legislature if it can be avoided.

Harvey v. Tyler, Wall., 328, 17 L. ed., 871; McEwen v. Den, 24 How., 242, 16 L. ed., 672; Cooley, Const, Lim., and cases cited 370; Dash v. Van Kleeck, 7 Johns., 477; Ogden v. Blackledge, 2 Cranch, 272.

If it was the intent and purpose of said Act of July 2, 1864, to ratify or legalize said exaction, said Act was to that extent unconstitutional and void.

If the exactions were illegal, there instantly arose an obligation and contract on the part of the defendant to refund them. The right to enforce that contract became the property of the plaintiffs, and to deprive them of it by such legislation, would have been to deprive them of their property without compensation and without due process of law. It would also be a direct and absolute destruction of the obligation of the contract of defendant.

Hepburn v. Griswold, 8 Wall., 603, 19 L. ed., 513; Calder v. Bull., 3 Dall., 386; Ogden v. Blackledge, 2 Cranch, 272; Dash V. Van Kleeck, 7 Johns., 477; Wynehamer v. The People, 13 N. Y., 378, Cooley, Const. Lim., 362, and cases there cited: Drehman v Stifle, 8 Wall., 595, 19 L. ed., 508.

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