[489]

[490]

rendered by the Supreme Court of the Terri- | conviction on any question of law presented
tory of Utah, affirming, upon appeal from the by written charges requested, given or refused,
District Court of the Third Judicial District of or any other question of law appearing on the
the Territory, a judgment and sentence of record. §§ 309, 315, 358, 360. The manner of
death upon a conviction of murder. The de- taking an appeal is by filing a notice with the
cisions of this court, after former trials of the clerk of the court in which the judgment is en-
case, are reported in 104 U. S., 631 [Bk. 26, L. tered, and serving a copy thereof upon the at-
ed. 873], and 110 U. S., 574 [Bk. 28, L. ed. torney of the adverse party. § 363.
262].

One of the errors now assigned in the brief filed in behalf of the plaintiff in error is that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record.

The statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to writing before it is given, unless by mutual consent of the parties it is given orally; and, as has already been adjudged by this court in this case, the giving, without In the copy of the record of the District Court the defendant's consent, of any oral charge or contained in the record transmitted by the Su-instruction to the jury is an error, for which preme Court of the Territory to this court, the judgment must be reversed. 104 U. S., 631 statement relating to the charge of the court to [Bk. 26, L. ed. 873]. The requirement of the the jury, and the exceptions to the charge, are statute that the clerk of the court in which the as follows: On May 5 the case was finally trial is had shall include, in making up its recargued by the counsel for either party, "and ord, a copy of all written charges, as well as of the court charged the jury; defendant's coun- the minutes of the trial, is equally positive. sel except generally to the instructions given by The object of these provisions, requiring the inthe court on its own motion, and exception al-structions to be in writing and recorded, is to lowed; and a verdict of guilty of murder in the first degree was returned and entered." And on May 16, "the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts. The record also shows that on May 10, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney.

secure an accurate and authentic report of the instructions, and to insure to the defendant the means of having them revised in an appellate court.

When the record shows that the jury were charged by the court, nothing can excuse the omission to set forth in the record a charge in writing, except express consent of the defendant that it should be given orally, and that consent must appear of record. The record must either set forth the charge in writing, or a waiver by the defendant of such a charge. If it does nei| ther, it fails to show what is made by express statute an essential requisite to the validity of the conviction, and contains upon its face a fatal error, of which the defendant may avail himself by appeal, without tendering a bill of exceptions.

Appended to the brief filed in this court in behalf of the United States is an affidavit, taken January 7, 1885, of the deputy clerk of the District Court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the Supreme Court of the Territory, requested him to omit the written charge given The duty of making up a complete record is by the court to the jury at the trial, and told the duty of the clerk; and the duty of seeing him that no point was to be made by the de- that the record contains everything that actufendant upon the instructions given by the ally took place, necessary to support the concourt to the jury; that the transcript prepared viction, is the duty of the district attorney. If in accordance with that request was delivered the copy of the record made up by the clerk of by the clerk to the counsel, and by them filed the District Court, and entered by the defendwith the clerk of the Supreme Court of the ant in the Supreme Court of the Territory, was Territory; that by reason alone of that request defective in a material point, the district attorthe written charge was omitted from the rec-ney might have moved in the latter court to ord; and that no bill of exceptions was ever filed or offered to be filed or presented to the Judge of the District Court for settlement.

By the Utah Code of Criminal Procedure of 1878, the charge of the court to the jury "must be reduced to writing before it is given, unless by mutual consent of the parties it is given orally." § 257, cl. 7. Within five days after judgment upon a conviction, the clerk must annex together and file the papers necessary to constitute the record, including "4. A copy of the minutes of trial; 5. A copy of the minutes of the judgment; 6. The bill of exceptions, if there be one; 7. The written charges asked of the court and refused, if there be any; 8. A copy of all charges given and of the indorsements thereon.' $339. The defendant may either take exceptions to the instructions of the court to the jury in matter of law at the trial of an indictment, or he may, without a bill of exceptions, appeal from a final judgment of

have the defect supplied by certiorari or other proper process. The defendant and his counsel were under no obligation to cure, and cannot be held to have waived, any defect in the record, but were entitled to take advantage, either in the Supreme Court of the Territory or in this court, of any error apparent upon the record as it stood in that court.

Applying these principles to the record before us, the conviction cannot be supported. The record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written, it should have been made part of the record, which has not been done. If it was oral, the consent of the defendant was necessary, and that consent does not appear of record and cannot be presumed.

It is hardly necessary to add that the affidavit taken since the entry of the case in this court cannot be considered. The lawfulness of the

and sentence of the defendant is to
by the formal record, made up
ed as required by law, of what
as presence at the trial in open
not by z parte affidavits of private
pposed to have afterwards tak-
his absence between the counsel

eered and case remanded, with di-
r the verdict to be set aside and a

of a void law passed by the Legislature of the
ceeds by seizure and sale of the property of the
State, Laving refused such tender or coupon, pro-
plaintiff, to enforce the collection of such taxes, is
an action or suit against him personally as a wrong-
ing of the Eleventh Amendment to the Constitu
doer, and not against the State, within the mean-
tion of the United States.

6. Such a defendant, sued as a wrongdoer, who
seeks to substitute the State in his place, or to jus-
the ground that the State has adopted his act and
tify by the authority of the State, or to defend on
exonerated him, cannot rest on the bare assertion
of his defense but is bound to establish it; and as
the State is a political corporate body, which can
act only through agents and command only by
Justice and Mr. Justice Harlan laws, in order to complete his defen he must pro-

TEMAS POINDEXTER, Plff. in Err.,

duce a valid law of the State, which constitutes his
commission as its agent, and a warrant for his act.
. McKenney, Clerk, Sup. Court, U. 8. of January 26, 1882, "To Provide for the More Effi-
7. The Act of the General Assembly of Virginia
cient Collection of the Revenue to Support Govern-
ment, Maintain the Public Schools, and to Pay
Interest on the Public Debt," requiring tax collec-
tors to receive in discharge of the taxes,license taxes
and other dues, gold, silver, United States treas-
ury notes, national bank currency, and nothing
else, and thereby forbidding the receipt of coupons
issued under the Act of March 30, 1871, in pay-
ment therefor, although it is a legislative Act of
the government of Virginia, is not a law of the
State of Virginia, because it impairs the obligation
of its contract and is annulled by the Constitution
of the United States.

C GREENHOW, Treasurer of
CITY OF RICHMOND, Va.

fe 5. C., Reporter's ed., 270-306.)

La-Virginia Law of Janu, March 13, 1884, impair the of the contract to receive coupons in as under the Act of March 30, or are toid-detinue-liability of of facts authorized by lawsuit Efe for such acts not a suit against

8. The State has passed no such law, for it cannot;
and what it cannot do, in contemplation of law it
has not done. The Constitution of the United States
and its own contract, both irrepealable by any act
made it the duty of the defendant to receive the
on its part, are the law of Virginia, and that law
coupons tendered in payment of taxes, and declared
every step to enforce the tax thereafter taken to be

without warrant of law, and therefore a wrong.
This strips the defendant of his official character,
and convicts him of a personal violation of the
plaintiff's rights, for which he must personally an-

of detrue for personal property,
endant for delinquent taxes,
the plaintiff had duly tend-swer.
from bonds issued by the State of
Funding Act of March 30, 1871;
home of that Act, and the issue of
Pin virtue of the same, a con-
een every coupon holder and
ert coupons should
be receivable
for all taxes, debts, dues and
ate the right of the coupon
was to bave his coupons re-
offered, and that any Act of
the receipt of these coupons
of the contract, and void as

* receivable in payment of
of the right. It consti-
medy in the hands of a
me thereby the legal duty of
to receive such coupons in pay-
equal footing and with
they were money; after a
duly made for that purpose,
t of the taxpayer and cou:
ly what they would have
ketender in money.
by many decisions of this
se of affecting proceedings
of taxes, a lawful tender of
to actual payment, either
re the collecting officer of
action, and making every

9. It is no objection to the remedy in such cases that the statute, the application of which in the particular case is sought to be prevented, is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right; for the cases are numerous where the tax laws of a State, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the Constitution of the United States.

10. In cases of detinue the action is purely defensive on the part of the plaintiff. Its object is merely to resist an attempted wrong and to restore the status in quo as it was when the right to be vindicated was invaded. It is analogous to the preventive remedy of injunction in equity when that jurisdiction is invoked, of which frequent examples occur in cases to prevent the illegal taxation of national banks by state authorities.

11. The suit authorized by the Act of General Assembly of Virginia of January 26th, 1882, against the collector of taxes, refusing to accept a tender of coupons, to recover back the amount paid under protest, is no remedy at all for the breach of the contract, which required him to receive the coupons in payment. The taxpayer and coupon holder has a right to say he will not pay the amount * are not "bills of cred- a second time, and, insisting upon his tender as tution, which forbids equivalent to payment, to resist the further exac of credit:" because, al- tion, and treat as a wrongdoer the officer who ate of Virginia on its cred-seizes his property to enforce it.

payment of taxes, and 12. Neither can it be considered an adequate rem-
frm hand to hand by de- edy, in view of the supposed necessity for summary
**t intended to circulate proceedings in matters of revenue, and the con-
al, and between gov-venience of the State, which requires that the
a for the ordinary purposes prompt collection of taxes should not be hindered
or embarrassed; for the revenue system must
wat brought by a taxpayer, who yield to the contract which the State has lawfully
coupons in payment of his made, and the obligation of which, by the Constitu
pera who, under color of of- tion, it is forbidden to impair.
1 acting in the enforcement
are it is also a contract, and

by Mr Justice MATTHEWS,

13. The right to pay in coupons cannot be treated as a mere right of set-off, which is part of the remedy merely, when given by the general law, and therefore subject to modification or repeal, be

[271]

[272]

therefore cannot be changed without mutual con- | O'Neill v. Henderson, 15 Ark., 235; Owings

sent.

14. The Acts of the General Assembly of Virginia of January 26, 1882, and the amendatory Act of March 13, 1-84, are unconstitutional and void because they impair the obligation of the contract of the State with the coupon holder under the Act of March 30, 1871; and that being the main object of the two Acts, the vice which invalidates them pervades them throughout and in all their provisions. It is not practicable to separate those parts which repeal and abolish the actions of trespass and trespass on the case, and other particular forms of action, as remedies for the taxpayer, who has tendered his coupons in payment of taxes, from the main object of the Acts, which that prohibition was intended to effectuate; and it follows that the whole of these and similar statutes must be declared to be unconstitutional, null and void. It also follows that these statutes cannot be regarded in the courts of the United States as laws of the State, to be obeyed as rules of decision in trials at common law under § 721, Rev. Stats., nor as regulating the practice of those courts under § 914, Rev. Stats. 15. The present case is not covered by the decision in Antoni v. Greenhow, 107 U. S., 769 [bk. 27, L. ed. 468], the points now involved being expressly reserved in the judgment in that case.

[No. 588.]

Fisher, 2 A. K. Marsh., 268; Overfield v. 1 lett, 1 Mo., 749; Beazely v. Mitchell, 9 Ala., 7 Spaulding v. Scanland, 4 B. Mon., 365; Hail Reed, 15 B. Mon., 479; Schulenberg v. Campbe 14 Mo., 491.

This court will enjoin the collection of state tax laid under an Act which impairs t obligation of a contract.

Dodge v. Woolsey, 18 How., 331 (59 U. S., b 21,L. ed. 401); R. R. Co. v. Reid, 13 Wall., 264 U. S., bk. 20, L. ed. 563); Charleston v. Branch, Wall., 470 (82 U. S., bk. 21, L. ed. 193); Bran v. Charleston, 92 U. S., 677 (Bk. 23, L. ed. 75 Humphery v. Pegues, 16 Wall., 244 (83 U. § bk. 21, L. ed. 326); Home of Friendless v. Rou 8 Wall., 430 (75 U. S., bk. 19, L. ed. 49 Washington University v. Rouse, Id., 439 (I 498); McGee v. Mathis, 4 Wall., 143 (71 U. (Bk. 18, L. ed. 314).

It will enjoin the collection of any tax whi the laws of the United States forbid the Sta

Argued Mar. 20, 23, 24, 25, 1885. Decided to impose.
Apr. 20, 1885.

IN FRiconoto, State or gs Count
ERROR to the Hustings Court of the City

The history and facts of the case fully appear in the opinion of the court. See also the six following and related cases, post, 198, 199, 200, 202, 204, and 205, and the dissenting opinion, applicable to and entitled in all, post, 207 (330).

Messrs. William L. Royall, Daniel H. Chamberlain, Wm. M. Evarts, Wager Swayne and Wm. B. Hornblower, for plaintiff in error:

No question of jurisdiction can arise in these cases on the ground that these are suits against the State of Virginia.

A suit against a public officer for trespass is a suit against such a person individually and personally and not against the political State or body of which he is the officer.

U. S. v. Lee, 196 U. S., 196 (bk. 27, L. ed. 171); Cunningham v. R. R. Co., 109 U. S., 446 (bk. 27, L. ed. 992).

The existence and terms of the contract of the State of Virginia to receive the coupons for taxes and other dues to the State are not open to dispute.

Antoni v. Wright, 22 Gratt., 833; Wise v. Rogers, 24 Gratt., 169; Clarke v. Tyler, 30 Gratt., 137; Hartman v. Greenhow, 102 U. S., 672 (Bk. 26, L. ed. 271); Antoni v. Greenhow, 107 U. S., 769 (Bk. 27, L. ed. 468).

The coupon is legal tender for the tax. Antoniv. Wright, supra, Wisev. Rogers, supra; Clarke v. Tyler, supra; Williamson v. Massey, 33 Gratt., 237; Hartman v. Greenhow, supra. A tender of that which ought to be received for a tax produces exactly the same effect, so far as the rights of the taxpayer are concerned, as a receipt by the officer of what is tendered. Bennett v. Hunter, 9 Wall., 326 (76 U. S., bk. 19, L. ed. 672); Tracey v. Irwin, 18 Wall., 549 (85 U. S., bk. 21, L. ed. 786); Atwood v. Weems, 99 U. S., 183 (Bk. 25, L. ed. 471); U. S. v. Lee, 106 U. S., 196 (Bk. 27, L. ed., 171); Thorndike v. U. S., 2 Mason, 1.

Property taken unlawfully by a public officer may be recovered in detinue.

Burnley v. Lambert, 1 Wash. (Va.), 308;

Osborn v. Bank,9 Wheat., 838; Pelton v. Bar 101 U. S., 143 (Bk. 25, L. ed. 901); Cummin v. Bank, Id., 153 (Id., 903); Davis v. Gray, Wall., 220 (83 U. S., bk. 21, L. ed. 453).

A court of equity will always enjoin the c lection of a tax where it is clear that in maki the collection the officer is a simple naked tr passer. His character of officer and his fur tion as collector give him no immunities whe the character of trespasser is fixed on him cle ly and without doubt.

Belknap v. Belknap, 2 Johns. Ch., 40 Frewin v. Lewis, 4 Mylne & C., 249; Comm wealth v. Supervisors, 29 Pa. St. 121; Leban v. R. R. Co., 77 Ill., 539.

Messrs. F. S. Blair, Atty-Gen, of Virgin A. H. Garland, R. T. Merrick, J. Amb Smith and S. B. Witt, for defendant in err

We rely on the following cases against jurisdiction of the court and the right to ma tain the foregoing suit against the State and officers.

Louisiana v. Jumel and Elliott v. Wiltz,107 S., 711 (Bk. 27, L. ed. 448); Antoni v. Gre how, Id., 769 (Id., 468); Cunningham v. R. Co., 109 U. S., 446 (Bk. 27, L. ed. 992).

Virginia has consented to be sued in her o courts and by remedies she has prescribed, a she can be sued in no other tribunal and by other procedure.

The coupons were not verified to be genu by a verdict of a jury and the judgment of t court, as required by either the Act of Janus 14, 1882, or that of January 26, 1882, fou in Acts of 1881-82, the first of which Acts v declared to be constitutional and to furnis complete remedy to the taxpayers, by the preme Court of the United States in Antoni Greenhow, supra; and the later Act of Janua 26, 1882, was in effect declared to be consti tional and to afford a sufficient remedy, by Supreme Court in the case of Tennessee Sneed, 96 U. S., 71 (Bk. 24, L. ed. 611).

Mr. Justice Matthews delivered the opini of the court:

The plaintiff in error, who was also plain below, brought his action in detinue on the 2 day of April, 1883, against Samuel C. Gre how, for the recovery of specific personal pr

wire cfor desk of the value of $30, pastice in the City of Richmond, case for want of jurisdiction. was taken by the plaintiff to the art for the City of Richmond, the facts were found by agreement of be as follows: That the plaintiff was the city of Richmond, in the State that he owed to the State of Viron property owned by him in the year 1882, $12.45, which said and leviable for, under the laws on the Erst day of December, 1882; enant, Samuel C. Greenhow, was the City of Richmond, and as red by law with the duty of colas de to the State of Virginia by all city; that on the 25th day of the defendant, as such Treasurer amka mod taxes, made upon the plaintiff e payment of the taxes due by ate as aforesaid; that the plaintiff, was so made for payment of his red to defendant in payment there15 lawful money of the United upons issued by the State of VirFor the provisions of the Act of the Ably of that State of March 30, An Act to Provide for the FundPet of the Public Debt"; that said red by plaintiff were all due y, and amounted in the aggreA were all cut from bonds issued Mate of Virginia under the proAct of March 30, 1871; that and money so tendered by anted together to exactly the State by the plaintiff for taxes; dant refused to receive the said oney so tendered in payment of axes, that the defendant, after made, as he deemed himself by the Acts of Assembly of Virthe plaintiff's place of business denied upon and took possession property of the plaintiff, now the purpose of selling the same to Ave from him; and that the said value of $30, and still remains in the defendant for the purpose aring refused to return the same demand.

T.

L

| ary 26, 1882; and that therefore the defend-
ant does not unlawfully or wrongfully detain
the plaintiff's property levied on by the defend-
ant, as Treasurer of the City of Richmond, for
the plaintiff's taxes; and judgment was accord-
ingly rendered for the defendant.

It appears from the record that there was
drawn in question the validity of the said Act
of the General Assembly of Virginia, approved
January 26, 1882, and of the 18th section of the
Act of the General Assembly of the State of
Virginia, approved April 1, 1879, which author-
izes the collection of delinquent taxes by dis
traint of personal property, upon the ground
that these Acts are repugnant to section 10 of
article I of the Constitution of the United States,
which declares that no State shall pass any law
impairing the obligation of contracts, the judg-
ment of the court being in favor of the validity
of said Acts and against the rights claimed by
the plaintiff under the Constitution of the
United States. The Hustings Court is the high-
est court of the State to which the said cause
could be taken.

The Act of January 26, 1882, the validity of which is thus questioned, is as follows:

"Be it enacted by the General Assembly of the State of Virginia, That the several tax collectors of this Commonwealth shall receive in discharge of the taxes, license taxes and other dues, gold, silver, United States treasury notes, national bank currency, and nothing else; provided that in all cases in which an officer charged by law with the collection of revenue due the State shall take any steps for the collection of same claimed to be due from any citizen or taxpayer, such person against whom such step is taken, if he conceives the same to be unjust or illegal, or against any statute, or to be unconstitutional, may pay the same under protest, and under such payment the officer collecting the same shall pay such revenue into the state treasury, giving notice at the time of such payment to the treasurer that the same was paid under protest. The person so paying such revenue may at any time within thirty days after making such payment, and not longer thereafter, sue the said officer so collecting such revenue in the court having jurisdiction of the parties and amounts.

"If it be determined that the same was wrongfully collected, for any reason going to the merits of the same, then the court trying the case may certify of record that the same was wrongfully paid and ought to be refunded; and thereupon the auditor of public accounts shall issue his proper warrant for the same, which shall be paid in preference to other claims on the treasury, except such as have priority by constitutional requirement.

Court was of the opinion that e erred in deciding that he had and that the issue in the action red by him, and that it should art on the appeal; but it was that in tendering to the deart of the tender in payment of ar, the coupons mentioned and the plaintiff did not tender what the "There shall be no other remedy in any case what the defendant was, as of the collection of revenue, or the attempt to red to or should have received in collect revenues illegally, or the attempt to colfertiff's taxes, under the pro- lect revenue in funds only receivable by said *the A4 the General Assembly of officers under this law, the same being other Arved January 26, 1882, entitled and different funds than the taxpayer may de for the More Efficient Col- tender or claim the right to pay, than such as se to Support Government, are herein provided; and no writ for the pre→ Pestor Schools, and to Pay Intervention of any revenue claim, or to hinder or It", that the plaintiff's rem- delay the collection of the same, shall in any „” of the defendantas Treasurer, wise issue, either injunction, supersedeas, man"was in payment of taxes, was to damus, prohibition or any other writ or proprovisions of said Act of Janu-cess whatever; but in all cases, if, for any rea

[275]

[276]

[277]

son, any person shall claim that the revenue so
collected of him was wrongfully or illegally
collected, the remedy for such person shall be
as above provided, and in no other manner.
In all such cases, if the court certify of record
that the officer defendant acted in good faith
and diligently defended the action, the neces-
sary costs incurred by him shall be taxed to
and paid by the State, as in criminal cases.
The commonwealth attorney for the county or
corporation in which suit is brought shall appear
and represent the defensc. In every case where
judgment is rendered for the defendant, a fee
of $5 shall be taxed in favor of said attorney
and against the plaintiff, and whenever the
court shall refuse to certify the good faith and
diligence of the officer defending the case, a
like fee of $5 shall be taxed against said officer.
Any officer charged with the collection of rev-
enue, who shall receive payment thereof in any-
thing other than that herein before provided,
shall be deemed guilty of a misdemeanor, and
fined not less than $100 nor more than $500, in
the discretion of the court; but nothing herein
contained shall be construed to subject any of-
ficer of the State to any suit, other than as here-
inbefore provided, for any refusal on his part
to accept in payment of revenue due the State
any kind or description of funds, security or
paper not authorized by this Act.

2. This Act shall be in force from and
after the first day of December, eighteen hun-
dred and eighty-two.'

the property of any taxpayer who may ha tendered in payment, in whole or in part, a coupon or paper purporting to be a coupo cut from bonds of this State, for such taxe and who shall refuse to pay his taxes in gol silver, United States treasury notes, or nation bank notes. The suit contemplated by th Act shall be commenced by a petition filed rules, upon which a summons shall be issu to the collecting officer; and the said st shall be regularly matured like other actio at law, and the coupons tendered shall filed with said petition."

The contract which the plaintiff in error: leges has been violated is with the State Virginia, and is contained in the Act of Mar 30, 1871, known as the Funding Act, entitl "An Act to Provide for the Funding and Pa ment of the Public Debt," and in the bonds a coupons issued under its authority. It provid for the funding of two thirds of the existi State debt and of two thirds of the inter accrued thereon to July 1, 1871, in new per cent bonds, to run thirty-four years, t bonds, coupon or registered, payable to ord or bearer, and the coupons to bearer, a declared that the coupons should be payal semi-annually and be receivable at a after maturity for all taxes, debts, dues a demands due the State," and that this shou be expressed on their face. For the remaini one third, certificates were to be issued the creditors to hold as claims against t State of West Virginia, that being assum as her just proportion of the entire debt. "U der this Act," it was said by this court Hartman v. Greenhow, 102 U. S., 672,

The 18th section of the Act of April 1, 1879, (Acts of 1878-79, p. 318), so far as materia!, is that "it shall be the duty of the treasurer, after the first day of December, to call upon each person chargeable with taxes and levies,[Bk. 26, L. ed. 271, 274], “a large number of t who has not paid the same prior to that time, or upon the agent of such person resident within the county or corporation, and upon failure or refusal of such person or agent to pay the same he shall proceed to collect by distress or otherwise." Goods and chattels distrained by an officer, by provisions of other statutes then in force, were required to be sold at public sale after due notice, as prescribed.

The Act of January 26, 1882, was amended by an Act which was passed and took effect March 13, 1884, by the addition of the following sections:

"Sec. 2. Whenever any papers, purporting to be coupons cut from bonds of this State, shall be tendered to the collecting officer in payment of any taxes due to the State by any party desiring to bring a suit under this statute, it shall be the duty of the collecting officer to place the coupons so tendered in an envelope, to seal the said envelope, write his name across the seal thereof, indorse it with the numbers of the coupons enclosed, and return it to the taxpayer. Upon the trial of any proceeding under this Act the said coupons, enclosed in the said envelope so sealed and indorsed, must be produced in evidence to prove the tender. If the court shall certify that the money paid under protest ought to be refunded, the said coupons shall be delivered to the auditor of public accounts, to be canceled simultaneously with the issue of his warrant.

"Sec. 3. No action of trespass or trespass on the case shall be brought or maintained against any collecting officer for levying upon

creditors of the State, holding bonds amou ing-including interest thereon-to abo thirty millions of dollars, surrendered the and took new bonds with interest coupons nexed for two thirds of their amount and c tificates for the balance. A contract was th consummated between the State and the hold of the new bonds and the holders of the co pons, from the obligation of which she couldn without their consent, release herself by a subsequent legislation. She thus bound l self not only to pay the bonds when they came due, but to receive the interest coupo from the bearer at and after their maturity, their full amount, for any taxes or dues by h to the State. This receivability of the coup for such taxes and dues was written on th face, and accompanied them into whatev hands they passed. It constituted their ch value and was the main consideration offer to the holders of the old bonds to surrend them and accept new bonds for two thirds their amount.

The same view had been taken by the S preme Court of Appeals of Virginia in cases of Antoni v. Wright, 22 Gratt., 833; W v. Rogers, 24 Gratt., 169, and Clarke v. Tyler, Gratt., 134, in the last of which cases it was clared to be the settled law of the State. It repeated by this court in Antoni v. Greenl 107 U. S., 769 [Bk. 28, L. ed. 468], where was said (p. 775): "The right of the coup holder is to have his coupon received for ta when offered"; and (page 771): "Any Act the State which forbids the receipt of th