Ferry v. Livingston, 115 U.S. 542 (1885)

By section 6 of the act of March 3, 1883, ch. 121, 22 Stat. 489, new sections, numbered from 2491 to 2513, both inclusive, were substituted, on and after July 1,1883, for Title XXXIII. of the Revised Statutes, thus repealing sections 2491 to 2516, both inclusive, of the Revised Statutes. In section 2502, Schedule N, as enacted in 1883, is the following provision for duty, p. 513: “ Garden seeds, except seed of the sugar-beet, twenty per centum ad valorem.” In “ The Free List,” section 2503, exempt from duty, are the following: “ Plants, trees, shrubs, and vines of all kinds, not otherwise provided for, and seeds of all kinds, except nledicinal seeds not specially enumerated or provided for in this Act.” p. 520. “ Seed of the sugar-beet.” p. 521. In section 2502, Schedule A, p. 494, a duty of 10 per centum ad valorem is imposed on “ seeds (aromatic, not garden seeds), and seeds of morbid growth, . . . which are not edible, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, and not specially enumerated or provided for in this Act.” In “ The Free List,” section 2503, exempt from duty, are the following, p. 517: “ Seeds aromatic, and seeds of morbid growth, • . . which are not edible and are in a crude state, and not p. 544advanced in value or condition by refining or grinding, or by any other process of manufacture, and not specially enumerated or provided for in this Act.”

Subsequently, a collector exacted a duty of 20 per cent, on pease imported as seeds, and not for consumption as vegetables, and, the question being presented whether they were “ garden seeds,” the Department, on November 27, 1883, 29 Int. Rev. Rec. 419, made this ruling: “ The general and not the exceptional use must determine the classification of the article. As a rule, pease, beans, and many other vegetable products are more largely sown in the field or farm than in the garden, although some varieties may be specially adapted for garden planting. It is held by the Department, that all pease and beans imported for seeds are entitled to free admission under the provision in the free list . . . for seeds of all kinds not specially enumerated or provided for in that act. . . . I may add, for your further information, that the Department regards seeds such as barley, beans, beets, carrots, cabbage, clover, corn, cane, grass, mangel-wurzel, oats, onions, potatoes, pumpkins, rye, tobacco, turnip, wheat, and other like products, as belonging to the category of agricultural seeds which are not garden seeds; and that seeds of the artichoke, asparagus, borecole, Brussels sprouts, cauliflower, celery, cucumber, egg-plant, lettuce, leek, okra, parsley, pepper, rhubarb, radish, salsify, and tomato belong to the category of garden seeds. It is impossible to enumerate all the seeds which belong p. 545to either of these divisions in detail, and the above is given for information as to the principle upon which collectors of customs must act.”

products which, before complete maturity, are used upon the table as part of the customary food of mankind, and in distinction from those seeds which, sowed or planted on a broader scale in the fields, produce the vegetables which are stored for winter use as food. Yet it is to be taken note of, that, by extended field culture, there is produced much of the seed which finds its way to market and to sale as ‘ garden seeds,’ in the common notion thereof above stated. It is not easy, therefore, to say of any importation, on general principles, that it is of garden seeds or of field seeds, nor to frame a rule, on general principles and general knowledge, which will always exactly apply. We are constrained, therefore, to see if we can, by interpretation, get at the purpose of Congress, and if it did not intend to charge the phrase ‘ garden seeds,’ in paragraph 465, with an arbitrary meaning. It has made an exception of the seed of one vegetable from the general expression ‘ garden seeds.’ It must have been thought bv Congress that there was need of that exception, or that else the seed excepted would properly and necessarily be treated by the administrative officers of the government as ‘ garden seeds.’ It follows, then, that Congress thought that seeds like the seed of the sugar-beet were ‘ garden seeds.’ W e have, then, an idea of what kind of seeds Congress meant when it spoke the phrase 1 garden seeds.’ Now, the sugar-beet is not a plant or a vegetable exclusively, nor mostly, of the growth of gardens. It is, on the contrary, mostly the growth of the field or of the market garden. If the sugar-beet is, in the view of Congress, a garden plant or vegetable, as well as, or in contrast with, a field plant, and its seed garden seed as well as, or in contrast with, field seed, surely the bean is, in legislative contemplation, a garden plant or vegetable, and the bean of the market, which is the seed of the bean plant, is a garden seed, as well as, or rather than, a field seed. We know that, in fact, the bean, as a seed of the bean plant or vegetable, is planted in the garden, and is largely planted in the field also; in the former case, generally, to be eaten green in the pod, as a green esculent, though sometimes, as with liiiia beans, in the form of the seed p. 547of the plant; in the latter case, for the production of seed for subsequent planting, and for food in the form of the matured seed. It is to be noticed, too, that elsewhere in the act, when ‘ garden seeds ’ are mentioned, they are so in contrast or opposition to seeds which are not of the character of beans or other seeds used for sowing or planting both in field and garden. As, in paragraph 94, where the phrase is ‘ seeds (aromatic, not garden seeds),’ and ‘ seeds of morbid growth ; ’ and so, in paragraph 636, the seeds put in the free list are ‘ seeds aromatic, and seeds of morbid growth.’ As the beans are garden seeds in some of the uses of them, and as it is to be got, by interpretation, that Congress meant to include such seeds as that of the bean in the phrase ‘ garden seeds,’ in paragraph 465, the conclusion must be that the article under consideration is properly classified under paragraph 465. This ruling applies equally to pease, and the duty of 20 per cent, ad valorem will, therefore, be exacted on both, on entries of such merchandise.”

This reversed the prior rulings of November 27, 1883, and, under the new ruling a duty of 20 per cent, was imposed by William Livingston, Jr., collector of customs at Detroit, Michigan, on importations, by D. M. Ferry & Co., a corporation, of mangel-wurzel, turnip, beet, and cabbage seeds, entered at the custom-house at Detroit, in December, 1884. The importer claiming that all the seeds were exempt from duty, brought a suit, in the Circuit Court of the United States for the Eastern District of Michigan, against Livingston, to recover $560.40, which had been paid as the duty. The case was tried before the court without a jury, and, on special findings of fact, the court held that the mangel- wurzel and turnip seeds, the duty exacted on which amounted to $332.60, were exempt from duty; and that the cabbage and beet seeds, the duty exacted on which amounted to $227.80, were subject to that duty. A judgment having been entered against Livingston p. 548for $332, he and Ferry & Co. have each brought a writ of error.

The contention, on the part of Ferry & Co., is, that, if the seeds which are cultivated in the garden are also cultivated in the field, they are not “ garden seeds,” within the statute, but, being field seeds, are free, as being seeds not otherwise provided for, that is, not provided for as “ garden seeds; ” and that, otherwise, seeds which are cultivated in both garden and field would at the same time be subject to duty and be free. In this view, it is claimed by Ferry & Co. that, as the Circuit Court has found that beet and cabbage seeds are cultivated in fields as well as gardens, they are exempt from duty. But we are unable to concur in this view. In the superseded Title XXXIII. of the Revised Statutes, a duty of 20 per cent, was imposed on flower seeds, “ garden seeds, and all other seeds for p. 549agricultural and horticultural purposes, not otherwise provided for,” while the free list included only seeds “ not otherwise provided for.” In the act of 1883, the duty of 20 per cent, on “ garden seeds, except seed of the sugar-beet,” was left, while the exemption from duty was enacted to cover “ seeds of all kinds, except medicinal seeds not specially enumerated or provided for in this act.” From this change in the statute, it cannot be inferred that seeds which are used for agricultural purposes are to be exempt from duty because of such use, if they are also used for garden purposes. The inference would rather be that, if they are used at all for garden purposes, they are subject to 20 per cent, duty, although they are also used for agricultural purposes.

The prayer of the bill for relief was, that, inasmuch as the complainant was without remedy at law, the court sitting in chancery would appoint a receiver, who should collect these taxes, and that the money arising therefrom be from time to time paid over in satisfaction of plaintiff’s judgments, and that the several tax-payers of said county, made defendants, be p. 552required to pay into court, with like effect the sums due by them as alleged in the bill.

“ 2. Whether taxes levied by State officers under judicial p. 553direction can be collected through, a receiver appointed by the United States court, where the legislature has provided an officer to collect, but there is a vacancy in office and no one can be found who is willing to accept the office.

In that case, as in this, execution on a judgment against the city of Watertown had been returned “no property found.” Writs of mandamus had been issued requiring the levy of a tax to pay the judgment. These writs had failed by reason of resignations of the officers of the city to whom they were directed, and this had occurred more than once. The court was pressed with the doctrine that, the writ of mandamus having proved inadequate, a court of equity should provide some other remedy. To this it replied: “We apprehend also that there is some confusion in the plaintiff’s proposition, upon which the present jurisdiction is claimed. It is conceded, and the authorities are too abundant to admit of question, that there is no chancery jurisdiction where there is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results are satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that by means of the aid afforded by the legislature, and by the devices and contrivances set forth in the bill, the writs have been fruitless; that in fact, they afford him no remedy. The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy, and the inability to obtain the fruits of a remedy, are quite distinct, and yet they are confounded in the present proceeding. To illustrate: the writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since there existed in central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a p. 555perfect remedy at law, but through fraud, violence or crime, its execution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal remedies was temporarily suspended by means of illegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution,” pp. 124-5.

The court also said the power to direct a tax to be levied is the highest attribute of sovereignity, and is exercised by legislative authority only. It is a power that has not been extended to the judiciary. 44 Especially,” says the opinion,44 is it beyond p. 556the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important.” pp. 116-117.

Mr. Justice Bradley, who decided this case on the circuit, had there elaborately discussed the whole subject. See Heme n . Levee Commissioners, 1 Woods, 246. This language is p. 557repeated and approved in State Railroad Tax Case, 92 U. S. 575, 615.

In the one case the officers exist, the duty is plain, the plaintiff has a legal right to have these officers perform that duty for his benefit, and the remedy to compel this performance, namely, the writ of mandamus, has been a well known process in the hands of the courts of common law for ages. In the other there exists no officer authorized to levy the tax or to collect it when levied. The power to enforce collection when the tax is levied, or to cause it to be levied by existing officers, is a common-law power, strictly guarded and limited to cases of mere ministerial duty, and is not one of the powers of a court of chancery. It would require in this court, not the compulsory process against some existing officer to make him p. 559perform a recognized duty, but the appointment by the court of such an officer and a decree directing him what to do.

vol . cxv—36 p. 562county.” It was further ordered by the County Court “ that J. T. Stark be, and is hereby, appointed collector of said levy, upon his executing bond, with approved security, before the County Court, and he will proceed at once to collect said levy, and pay the same over in satisfaction of the judgments heretofore named in favor of T. W. Thompson or his attorney.” Stark declined to accept the office of collector. It is alleged in the bill, and admitted in the answer, “ that the sentiments and feelings of a large majority of the citizens and tax-payers of the said Allen County are very hostile and outspoken against the collection or payment of the said tax.” The County Court having announced that it was unable to find any person who was willing to accept the appointment of collector and undertake the collection of the levy, and Thompson being unable, as he alleges, to find any person within the county who is willing to qualify as collector, the present suit in equity was commenced against the county, and a large number of its tax-payers, whose names are given in the bill, together with the amount of their taxable property, as assessed by the proper county authorities, with the taxes due from each, as shown by the public records of the county. The bill sets out the foregoing facts, and asks that the several tax-payers, who are made defendants, be required to pay into court the several sums due from them, as shown by the levy made by the County Court, and that other tax-payers, not specifically named as defendants, be required to pay into court, or to some person appointed by it as receiver, the amount due from them respectively—such sums to be applied in satisfaction of Thompson’s judgments. There is, also, a prayer for general relief.

In my judgment, there is nothing in our former decisions which prevents a court of equity from giving substantial relief to the complainant. In Walkley v. City of Muscatine, 6 Wall. 482, the application was to a court of equity to compel the levy of a tax. The only point decided was, that where «a municipal corporation refused to levy a tax to satisfy a judgment against it, the remedy of the creditor was a mandamus to compel such levy; and that “ a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments in cases only where the latter is inadequate to afford the proper remedy.” In Rees v. City of Watertown, 19 Wall. 107, a Federal court, sitting in equity, was asked, in the absence of a levy, to subject the property of the tax-payers of a city to the payment of complainant’s judgments against it, and that the marshal of the district be empowered to seize and sell so much of their property as might be necessary for the satisfaction of such judgments. In other words, the court was asked to make a levy of taxes. And in Heine v. The Levee Commissioners, 19 Wall. 655, it appears that holders of bonds issued by the Levee Commissioners—no judgment at law having been recovered on the bonds, nor any attempt made to collect the amount due by suit in g common-law court—brought a suit in equity, ‘and prayed that the commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and if, after reasonable time, they failed to do so, that the district judge of the parish, who was by statute authorized to levy the tax when the commissioners failed to do so, be ordered to make the levy. It was decided that the power of taxation belonged to the legislative, not to the judicial branch of the government; that, in that case, the p. 564power must be derived from the legislature of the State; if the body known as Levee Commissioners had, by resignation of their members, ceased to exist, the remedy was in the legislature either to assess the tax by special statute, or to vest the power in some other tribunal; that, in any event, a Federal court was without power to levy and collect a tax authorised by a State law. That such was the extent of the decision in that case is shown in State Railroad Tax Cases, 92 U. S. 575, where, referring to Heine v. The Levee Commissioners, it was said: “ The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the States and by the theory of our English origin, is exclusively legislative.” p. 615.

It seems to me that the granting of relief to Thompson will not, in any degree, disturb the principles announced in the foregoing cases. The bill does not ask the court to usurp the function of levying taxes. That duty has been performed by the only tribunal authorized to do it, viz., the County Court of Allen County. Nothing remains to be done, except to collect from individuals specific sums of money which they are under legal obligation to pay. The collections of these sums will not interfere with any discretion with which p. 565the Allen County Court is invested by law; for, by its own order, made in conformity with the law of the State, and by the judgment in the mandamus proceedings, the sums due from the individual defendants, and from other tax-payers, has been set apart for the payment of Thompson’s judgments. Those sums, when collected, cannot be otherwise used. As the County Court cannot find any one who will accept the office of special collector, and as the parties agree that there is no mode of collecting the sums set apart in the hands of the individual defendants and other tax-payers, for the payment of Thompson, I am unable to perceive why the Circuit Court, sitting in equity, may not cause these sums to be applied in satisfaction of its judgments at law. The plaintiff has no remedy at law; for, the common-law court in rendering judgment has done all that it can do, and the local tribunal, by levying the required tax and seeking the aid of a special collector to collect it, has done all that it can do. There is no suggestion, or even pretence, that the tax-payers who are sued dispute the regularity of the assessment made against them by the County Court. Admitting their legal liability for the specific amounts assessed against them, and conceding that what they owe must, when paid, go in satisfaction of Thompson’s judgments, they dispute the authority of any judicial tribunal to compel them to pay it over. With money in their hands, equitably belonging to the judgment creditor, they walk out of the court whose judgments remain unsatisfied, announcing, in effect, that they will hold negotiations only with a “ special collector,” who has no existence.

This case came from the Supreme Court of . Appeals of Virginia. It was brought in one of the Circuit Courts of that State to enforce a vendor’s lien claimed by James Kenney, the plaintiff below, defendant in error here, as trustee of one Allen C. Bryan, for the unpaid portion of the purchase money of certain real estate sold to Jacob P. Effinger, the defendant below and plaintiff in error here. The material facts of the p. 567case were these : On the 7th of January, 1861, Allen 0. Bryan and wife conveyed all their estate, real and personal, to James Kenney, in trust for the benefit of the wife and creditors of Bryan. The real estate was situated in Rockingham County, Virginia, and a portion of it, consisting of about 100 acres, was known as the “Home Farm” of Bryan. On the 30th of March, 1863, Kenney, the trustee, sold this farm at public auction to the highest bidder, pursuant to the deed of trust; and at that’ sale Effinger became the purchaser, at $210 per acre, one-third to be paid in cash and the balance in one and two years from the date of sale, with the privilege of paying in cash the first of these deferred payments. Effinger made the cash payment and the first of the deferred payments, and executed to the trustee his promissory note, or bond, as it is termed in the record, for the second deferred payment, amounting to $7067.72, payable on the 30th of March, 1865, with interest from date, stating in the instrument that the amount was the deferred payment on the “ Home Farm ” of Bryan. The trustee and the purchaser were at the time residents and citizens of Virginia. The first and second payments were made in treasury notes of the Confederate States, but after the maturity of the bond the third payment in such notes was refused by the trustee, and no payment in any other currency being made the present suit was brought. The Circuit Court was of opinion that the sale was made with reference to notes of the Confederate States as a standard of value ; that the fair value of the property on the day of sale “ was the most just measure of recovery; ” and that such value was $80 an acre in lawful currency of the United States. This conclusion as to value was drawn from the fact that the land was assessed for taxation at that sum before the civil war, and that during the continuance of the war its value had not materially depreciated, the court observing that, “ whilst the war had a tendency to impair the value of all kinds of property, yet, as to lands, that tendency was counteracted by the fact that they were not liable to be destroyed, and, therefore, afforded a safer means of investment than any other kind of property.” It accordingly awarded judgment for one-third the value of the p. 568land at the time of sale, estimating it to have been then worth $80 an acre in lawful currency, with interest on the sum thus adjudged to be due, and decreed a sale of the property to pay the amount unless the same was paid within a time designated.

“ Seo . 2. Whenever it shall appear that any such contract was, according to the true understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard of value, the same shall be liquidated and settled by reducing the nominal amount due or payable under such contract in Confederate States treasury notes to its true value at p. 569the time they were respectively made or entered into, or at such other time as may to the court, or if it be a jury case, to the jury, seem right in the particular case. . . .” Session Laws of 1866-7, 694; Code of 1873, ch. 138, §§ 1, 2.

The contract of sale, which is the subject of consideration in this case, was made in Virginia, between citizens of that State, pending the late civil war, and with reference to notes of the Confederate States as the standard of value. These notes had, at that time, almost entirely superseded the use of coin, and they constituted the principal currency within those States. Not only the ordinary purchases of the necessaries of life, but contracts of every description, which were to be performed there, were made with reference to them. Such contracts were not invalid between the parties because payable in those notes, when not made in aid of the insurrectionary government. It was so held by this court in Thorington v. Smith, 8 Wall. 1, where it was declared that they must be regarded as a currency imposed on the community by irresistible force; and that this currency must therefore be considered, in the courts of law, in the same light as if it had been issued by a foreign government temporarily occupying a part of the territory of the United States. “Contracts stipulating for payments in this currency,” said Mr. Chief Justice Chase, speaking for the entire court, “ cannot be regarded, for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relation to the hostile government, whether invading or p. 570insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation,” pp. 11,12. That case, like the present, was a suit to enforce a vendor’s lien for the unpaid purchase money of real estate. The property was situated in Alabama and was sold during the civil war for $45,000, of which sum all but $10,000 was on the execution of the deed paid in Confederate treasury notes. For the residue the promissory note of the purchaser was given. The parties were both residents and citizens of that State. The plaintiff sought to enforce the note for the full amount in lawful money of the United States. The defendant proved that, at the time of sale, treasury notes of the Confederate States constituted the only currency in ordinary use in Alabama, and that, with few exceptions, all business transactions were conducted in them; that the land was then worth only $3000, in lawful money, and that the contract price of $45,000 was, by agreement, to be paid in those notes. When the case came to this court the question was considered as to the admissibilit}7 of evidence to prove that the promise for the payment of dollars, without qualifying words, was in fact made for the payment of other than lawful dollars of the United States. The court held that the evidence was admissible, observing that, whilst it is clear that a contract to pay dollars, made between citizens of any State of the Union maintaining its constitutional relations with the National government, is a contract to pay lawful money of the United States, and could not be modified or explained by parol evidence, “ it is equally clear, if in any other country coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars made in that country, evidence would be admitted to prove what kind of dollars were intended, and, if it should turn out that foreign dollars p. 571were meant, to prove their equivalent value in lawful money of the United States,” p. 12; that such evidence does not modify or alter the contract, but simply explains an ambiguity which, under the general rules of evidence, may be removed by parol evidence. And the court added, that the people in the insurgent States under the Confederate government were, in legal contemplation, substantially in the same situation as inhabitants of districts of a country occupied and controlled by an invading belligerent; that contracts among them must be interpreted and enforced with reference to the condition of things created by the acts of the ruling power; and that in their light it was hardly less than absurd to say that the dollars used in the insurgent States should be considered identical in kind and value with the dollars constituting the money of the United States.

In Wilmington & Weldon Railroad Co. v. King, 91 U. S. 3, the contract made in North Carolina during the war was for wood, and by its terms the wood was to be paid for in Confederate notes. In an action upon the contract the court below refused to instruct the jury that the plaintiff was entitled to recover only the value of the currency stipulated for the wood sold, but stated that he was entitled to recover the value of the wood without reference to the value of that currency. This court held this to be nothing less than instructing the jury that p. 572they could put a different value upon the property from that placed by the parties at the time of the purchase. In its opinion the court referred to contracts made during the war in the insurgent States between residents there, payable in Confederate notes, which of course became worthless at the close of the war, and said it was manifest that, if these contracts were to be enforced with anything like justice to the parties, evidence must be received as to the value of the notes at the time and in the locality where the contracts were made ; and added, that “ in no other mode could the contract as made by the parties be enforced. To have allowed any different rule in estimating the value of the contracts, and ascertaining damages for their breach, would have been to sanction a plain departure from the stipulations of the parties and to make for them new and different contracts.” p. 4. In reference to the statute of North Carolina which allowed the jury to place their own judgment upon the value of the contract, and did not require them to take the value stipulated by the parties, t^e court said: “A provision of law of that character, by constituting the jury a revisory body over the indiscretions and bad judgments of contracting parties, might in many instances relieve them from hard bargains, though honestly made upon an erroneous estimate of the value of the articles purchased, but would create an insecurity in business transactions which would be intolerable. It is sufficient, however, to say that the Constitution of the United States interposes an impassable barrier to such new innovation in the administration of justice, and with its conservative energy still requires contracts, not illegal in their character, to be enforced as made by the parties, even against any State interference with their terms.” p. 5. The judgment was accordingly reversed.

In Cook v. Lillo, 103 U. S. 792, the doctrines declared in the p. 573decisions mentioned were referred to as settled, although Thorington v. Smith was alone cited for them. The Chief Justice, after observing that it had long been settled in this court, that transactions in Confederate money during the late civil war between the inhabitants of the Confederate States, within the Confederate lines, not intended to promote the ends of the Confederate government, could be enforced.in the courts of the United States, after the restoration of peace, to the extent of their just obligation, said: “ It is equally well settled that, if a contract entered into under such circumstances, payable in dollars, was, according to the understanding of the parties, to be paid in Confederate dollars, upon proof of that fact, the party entitled to the payment can only recover the value of Confederate dollars in the lawful money of the United States,” pp. 792-793.

The several decisions mentioned, with one exception, were rendered by the court with the concurrence of all its members. In the excepted case only one judge dissented. It would seem, therefore, to be no longer open to question, that where contracts were made in the insurgent States during the war p. 574between residents of those States, with reference to Confederate notes as a standard of value, and were not designed to aid the insurrectionary government, they may be enforced in our courts; and that the value of the contracts is to be determined by the value of the Confederate notes in lawful money of the United States.

Where a contract is for the delivery of specific articles, the rule undoubtedly is that the damages recoverable for its breach are to be determined by the value of the articles at the time and place of their delivery. Where a contract is payable in a specified currency, the rule is also clear that such currency is demandable and receivable at the maturity of the contract, whatever change in its value by increase or depreciation may have taken place in the mean time. The damages recoverable for a breach of the contract are to be measured by the value of the currency at its maturity. But in these rules it is assumed that the articles to be delivered are lawful property, and that the currency to be paid is a lawful currency, and that, therefore, in the creation and exchange of both no public duty is violated. The treasury notes of the Confederate States constituted, under the laws of the United States, neither lawful property nor lawful currency. They were the promises of an insurgent and revolutionary organization, payable only ■when its success should be established by a treaty of peace with the United States. Of the value of such promises the National courts will make no inquiry, except as they were receivable in contracts not designed to further the insurrection. They were p. 576receivable in such, contracts because imposed as a currency upon the community by irresistible force. Their intrinsic value was nothing, but their exchangeable value, by reason of their enforced circulation, was the estimate of them at the time in lawful money of the United States. The relation between them and coin and other lawful money was well known in the community, as it was only with coin or other lawful money as a standard of value that commerce was conducted between the insurgents and persons outside of the Confederacy. Persons then parting with lands and goods for Confederate notes, or for the promise of them, attached to them this exchangeable value, and expected to receive it then or afterwards. They did not intend to surrender, or suppose they were surrendering, their property without any consideration, if the Confederacy should fail, and its notes lose this exchangeable value. They expected an equivalent in any event. Therefore, as having the value thus given to them at the time and place of their receipt, or the promise of them, the National courts will treat them, but not as having a value at any other time or place. Any other rule would involve considerations of inextricable difficulty, and would be inconsistent with justice in determining the value of contracts thus payable, where they matured near the close or after the overthrow of the Confederacy.