SUPPLEMENT.

NOTE. The fifteenth volume of Howard's Reports having been received after the body of this work had been printed, it has become necessary to state the substance of the decisions contained in that volume, which bear upon the topics treated in the foregoing chapters, in the form of a supplement, under the appropriate heads. The several matters embraced in the following sections will be found referred to in the general index.

MATTER IN DISPUTE.

§ 436. The words "matter in dispute," in the twelfth section of the Judiciary Act, do not refer to disputes in the country, or the intentions or expectations of the parties concerning them, but to the claims presented on the record to the legal consideration of the court. What the plaintiff thus claims is the matter in dispute, though that claim may be incapable of proof, or only in part well founded. So it was held under this section of the statute, and in reference to the right of removal of a cause from a state court to a circuit court, in Gordon v. Longest, 16 Peters, 97; and the same construction has been put upon the eleventh and twenty-second sections of the Judiciary Act, which make the jurisdiction of the Supreme Court and the circuit courts dependent on the amount or value in dispute.1

1 Kanouse v. Martin, 15 Howard, 108, 207.

JURISDICTION UNDER THE TWENTY-FIFTH SECTION OF THE

JUDICIARY ACT.

§ 437. Although it is in general true that a party, claiming a right under an Act of Congress, must avail himself of some legal means to place on the record that claim, and the facts on which it rests; otherwise he cannot have the benefit a of re-examination of the judgment upon a writ of error; yet there is one exception to this rule. This exception is where the right to remove a cause from a state court to a circuit court is claimed under the twelfth section of the Judiciary Act. The statute provides that the defendant, in cases where the right to remove exists, shall file a bond and petition in the state court, and thereupon the state court shall proceed no farther in the cause. But if the defendant is required by the state court to plead to the jurisdiction the right of removal, or to make the facts on which it depends part of the technical record, he cannot do so without surrendering some part of the right which the act of Congress secures to him to have the proceedings in the state court immediately stayed, on suggestion of the facts on which the right to remove depends. And, therefore, where the Court of Common Pleas, in the City and County of New York, after a defendant had filed his bond and petition for removal, allowed the plaintiff to reduce the matter in dispute to the sum of $499 00, by an amendment of the record, and then rendered judgment for the plaintiff; from which judgment the defendant prosecuted a writ of error to the Superior Court of the City of York, and that court refused to reverse the judgment, because the plaintiff in error did not plead to the jurisdiction of the court below, and spread the facts which gave him the right of removal upon the technical record; the Supreme Court of the United States, upon a writ of error to the judgment of the Superior Court, held that the Superior Court ought to have inspected the proceedings under the Act of Congress which showed the judg ment of the Court of Common Pleas to be erroneous, and

that its failure to do so was error, which could be corrected under the twenty-fifth section of the Judiciary Act.1

§ 438. In the same case, it was held that as the plaintiff in error could not, consistently with the Act of Congress, be required to follow the case further in the Court of Common Pleas, and, therefore, could not be required to appeal from a special to a general term of that court, the Superior Court became the highest court of the state to which his complaint of the judgment of the Court of Common Pleas could be carried.2

OBLIGATION OF CONTRACTS.

§ 439.. A law may so affect the remedy on a contract, as to impair the obligation of the contract. The obligation of a contract, in the sense in which these words are used in the Constitution, is that duty of performing it which is recognized and enforced by the laws. And if the law is so changed that the means of legally enforcing this duty are materially impaired, the obligation of the contract no longer remains the same.3

§ 440. In 1836 the Legislature of Arkansas incorporated a bank with the usual banking powers of discount, deposit, and circulation, the state being the sole stockholder. The bank went into operation, and issued bills in the usual form, but in 1839 suspended specie payments. The legislature afterwards passed successive acts, 1, continuing the corporate existence of the Bank, and subjecting its affairs to the management of a financial receiver and an attorney, who were directed to cancel certain bonds of the state, held by the bank for money borrowed by the state, and reduce the state's capital in the bank by an equal amount; 2, direct

1 Kanouse v. Martin, 15 Howard, 198.

• Curran v. State of Arkansas, 15 Howard, 304.

2 Ibid.

ing the officers to transfer to the state a certain amount of specie, for the purpose of paying the members of the legislature; 3, requiring the officers to receive the bonds of the state which had been issued as part of the capital of the bank in payment for debts due to the bank; 4, taking away certain specie and par funds for the purpose of paying the members of the legislature, and placing other funds to the credit of the state, subject to be drawn out by appropriation; 5, vesting in the state all titles to real estate or other property taken by the bank in payment for debts due to it; and 5, requiring the officers to receive, in payment of debts due to the bank, not only the bonds of the state, which had been issued to constitute the capital of the bank, but those also which had been issued to constitute the capital of other banking corporations which were then insolvent. The Supreme Court of the United States held that these laws, so far as they withdrew the assets of the bank from the reach of its creditors, violated the obligations of two contracts, viz. 1st. The contract between the bill-holders and the bank, arising upon the bills which were payable on demand; and 2d. The contract between the bill-holders and the state, arising from the deposit by the state of funds in the bank for the purpose of paying its debts.' The case is so important and instructive that no mere abstract can supply to the reader the full benefit of the reasoning of the court, which was as follows: "The plaintiff in error filed his bill in equity in the Circuit Court of that State for the County of Pulaski, against the State of Arkansas, the State Bank of Arkansas, and the financial receiver and the attorney of the bank; and the defendants having demurred thereto, the circuit court overruled the demurrer, and, as the defendants elected to rest thereon, the court made a decree in favor of the complainant. The defendants appealed to the Supreme Court, where the demurrers were sustained, and the bill ordered to be dismissed. This decree the plaintiff has brought here for re-examination under the 25th section of the Judiciary Act."

'Curran v. The State of Arkansas, 15 Howard, 304.

"As the questions to be determined arise on a demurrer to the bill, the substance of the case, therein made and confessed by the demurrer, must be stated, to exhibit the grounds on which our decision rests.

"The bill shows that the Bank of the State of Arkansas was incorporated by the legislature of that State in 1836, with the usual banking powers of discount, deposit, and circulation, and that the state in fact was, and was designed by its charter to be, its sole stockholder. That the capital stock of the bank consisted of $1,146,000, raised by the sale of bonds of the state, together with certain other sums paid in by the state as part of the capital stock, amounting in the aggregate to the sum of $350,753, being in the whole $1,496,753; all which was in specie, or specie funds. That the bank was required by its charter to have on hand at all times sufficient specie to pay its bills on demand. That the plaintiff, being the owner and bearer of bills of this bank, amounting to upwards of $9,000, which the bank had refused to pay, instituted suits and recovered judgments thereon at law, upon which executions, running against the goods, chattels, and lands of the bank, have been duly returned wholly unsatisfied. The general scope of the bill, therefore, is to obtain the aid of a court of equity to reach such assets of the bank as ought to be appropriated to satisfy this judgment-debt. The parties in whose hands it is alleged these assets are, are the State of Arkansas and two other defendants, who are alleged to have charge of certain effects of the bank, in behalf, and under the authority of the state.

"To make a case against these parties, and show that they hold property, which in equity belongs to its creditors, and ought to be appropriated to pay their debts, the bill states that the bank having gone into operation, and issued bills to a large amount, which were then in circulation, gave public notice, on the 7th day of November, 1839, that the payment of specie was definitely and finally suspended, and thenceforward, with some comparatively trifling exceptions, has refused to redeem any of its bills.