objects of it. The reason is, that interest on a dividend already due has acquired an existence separate from the stock from which it sprung, is no longer dependent upon it, and has given birth to a new right, to which the continuance of the title to the stock itself is not in any degree necessary. This reason is conclusive here, although, if the rule had been otherwise, in the case of interest or a dividend, it would not have been conclusive the other way, because a rule is here given by an express engagement, which one of the parties is not at liberty to modify, by motives deduced from supposed analogies. I am not aware of any inconvenience (which could found the argument ab inconvenienti) likely to result from an admission of the claim of the holder of the stock at the era of the new borrowing, since the public books will show who was that holder; nor can I perceive that the probable intent of the parties, or the propriety of the thing, favors the claim of a subsequent holder. On the contrary, I think that every consideration which belongs to the subject recommends the admission of the claim of him who held the stock at the time when the claim became complete under the terms of the contract to which it owes its being.

"WM. PINKNEY."

Your memorialists can add nothing to the weight of an opinion so eminently marked by that clearness of conception and that force of reasoning which adorned the distinguished jurist from whom it came. And notwithstanding the decision of the Secretary of the Treasury to the contrary, they feel themselves authorized to say, that in withholding from Mr. Barker the benefit of the condition annexed to his contract, because he did not continue to be the holder of the stock up to the date of the Comptroller's circular letter of the 30th of November, the highest injustice was inflicted on one who had zealously devoted himself, in the hour of difficulty, to the service of his country.

With respect to the extent of the difference between the two loans of the 2d May and the 31st of August, your memorialists beg leave to observe, that the fact that depreciated paper was received in payment for the second contract is fully established by the following deposition, lately taken in a cause now pending in the United States

courts:

"UNITED STATES OF AMERICA, District and State of Maryland, ss:

"Be it remembered, that on this 6th day of November, in the year of our Lord one thousand eight hundred and twenty, at the city of Baltimore, before me, Lewis Eichelberger, a commissioner appointed by the circuit court of the United States for the district aforesaid, in the fourth circuit of the said United States, under and by virtue of the act of Congress entitled 'An act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States,' personally appeared Dennis A. Smith, a witness for the defendant in a certain civil cause now depending in the district court of the said United States for the southern district of New York, wherein the United States of America are plaintiffs, against Jacob Barker, and also a witness for the defendant in another civil cause depending in the said court, wherein the United States of America are

plaintiffs, and Frederick Depeyster is defendant. And the said witness, being by me first carefully examined, and cautioned and sworn to testify the whole truth, makes oath, deposes, and saith, that he is aged thirty-nine years, and resides in Baltimore county, in the aforesaid State of Maryland; that on or about the 30th of August, 1814, he contracted with the then Secretary of the Treasury to loan to the United States the sum of one million eight hundred thousand dollars, being part of the twenty-five millions of dollars authorized to be borrowed by the act of Congress of the 24th of March, 1814; for which sum, so to be loaned by deponent to the United States, he was to receive six per cent. stock, to the amount of one hundred dollars for each eighty dollars paid; and it was further understood and agreed between the Secretary of the Treasury and him (deponent) that he (deponent) should pay for the same in the paper of the banks of the District of Columbia, and of the banks of the city of Baltimore, which banks received their own paper at par; and it was further agreed, that on producing the proper evidence of the payment of the said sum of one million eight hundred thousand dollars to the Commissioners of Loans of the United States, funded stock to the amount of one hundred dollars, bearing an interest of six per cent. per annum, should issue for each eighty dollars of the paper of the said banks so paid by deponent. That, in pursuance of such understanding and agreement, deponent did so pay, in the paper of the said banks, the one million eight hundred thousand dollars aforesaid, and did receive therefor funded stock to the amount of two million two hundred and fifty thousand dollars. That the said banks in whose paper this deponent paid the said one million eight hundred thousand dollars did not, at the time deponent so paid, redeem their notes with specie. That the place of residence of deponent is more than one hundred miles from the southern district of New York, the place of trial of the aforementioned causes."

If further evidence were necessary to prove that in testing the rights of the then proprietors of the ten million loan, dishonored and depreciated paper was substituted by the treasury for specie, the only currency known to the laws, such evidence would be found in Mr. Dallas's annual report to Congress, dated the 6th of December, 1815, pages 26, 27, and 28, from which it will appear that he refused to accept specie, which was offered for the public loan under seventy-five dollars in money for one hundred dollars in stock. And in proof of the value of said paper, at the period when Mr. Smith paid his instalments, your memorialists ask leave to refer your honorable body to the following copy of the certificate of Messrs. Prime, Ward, & Sands, who are among our most eminent stock-dealers:

"These are to certify that the value of the notes of the several banks at Baltimore, and in the District of Columbia, was, in comparison with specie, on the 10th of September, 1814, ten per cent. below par; on the 10th of October, 1814, twelve per cent. below par; on the 10th of November, 1814, twenty per cent. below par; and on the 10th of December, 1814, it was twenty-four per cent. below par. "PRIME, WARD, & SANDS.

"NEW YORK, December 14, 1814."

The obvious intent of all parties, in attaching the condition before mentioned to the contracts for the ten million loan, was, that no original contractor for any part of the twenty-five million loan should be enabled to undersell the contractors for the ten million loan without loss. To suffer this intent to be defeated by the receipt at par of bank paper, which had depreciated more than twenty per cent., and a great part of which had no currency at any place without the limits of the District of Columbia, would be to permit one of the contracting parties to produce the very mischief which it was intended to prevent; for the parties to the second contract could have purchased, with sixty dollars specie, as much of such depreciated paper as would have procured them one hundred dollars stock, by which means they were enabled to come into the market and sell the stock at very great profit, while the contractors for the ten million loan were compelled to sell their stock at very great loss, although both parties were selling at the same time and at the same price.

Besides, as specie was the only legal currency of the country, and as the loan of 2d May, 1814, was paid in specie, or what was equivalent to it, the only rational mode of ascertaining the quantum of difference between the terms of that loan and any subsequent contract, must be by ascertaining the difference in the amount of specie or its equivalent, received by the government, for any given quantity of stock issued under the respective contracts.

And as the government received, in fact, $88 in specie, or paper equivalent, on every $100 of stock issued under the first contract, and as it really received but $60 in specie for every $100 of stock issued under the second contract, there was an actual difference of $28 money on each $100 of stock between the two contracts, in favor of the lenders under the second contract.

In proof of the correctness of this reasoning, your memorialists beg leave to quote an extract from an opinion of the late Justice Livingston, of the Supreme Court of the United States, delivered in the abovementioned cause, which came before him on a writ of error from the district court of the southern district of the State of New York:

"It is enough for the purpose of the plaintiff in error that the difference in fact existed, and that bills of exchange could be bought on better terms for gold and silver than paper. This being the case, and specie being the only known legal tender for a debt, it is the opinion of this court that the district court erred in rejecting the testimony which was offered to show that bills on London could be bought, at the times referred to, at fifteen per cent. discount in specie.

"This testimony should have been received, and been the basis of the assessment of damages, and not the par of exchange merely, because bills were bought at that value, if paid for in depreciated and dishonored currency. For this error the judgment of the district court is reversed, and a venire facias de novo awarded."

This opinion appears to correspond with that expressed by Mr. Dallas, in his report to Congress, dated on the 15th of November, 1815. When speaking of this depreciation, which he, in that report, calls exchange, he makes the following observations: "The public stock created in consideration of a loan, also partook of the inequali

ties of the exchange, although, to the government, the value of the stock created, and the obligation of the debt to be discharged, were the same wherever the subscription to the loan might be made."

If the obligation could have been otherwise, the government would have had a right, when the stock became due, to redeem it with the paper of any non-paying bank which might have been found in the market, however great the discount at which such paper might have been obtained. This could not be pretended. And if they had not the right to pay off the stock at the expiration of the limited period for its redemption, in such depreciated paper estimated at par, then it is equally clear that they had not the right to sell stock for it in the place where of all others the local paper was most depreciated, and thereby get a higher price for the stock, and then make such price the standard by which to estimate the rights of those who paid specie or its equivalent for stock in the ten million loan.

As the stock certificates issued subsequently to the 30th of November, 1814, had inserted on their face a declaration which precludes all subsequent purchasers from claiming any implied rights to any further benefit from said conditions, and as Mr. Barker continued to be the proprietor of most of the stock on which this part of his claim is founded until after that date, your memorialists are persuaded that the claims of Mr. Barker, in this particular, are most equitable and sound, even though the construction given to the condition by Mr. Pinkney and others should not be deemed correct.

Such being the extent of Mr. Barker's just claims on the government, it is not surprising that the refusal of the Secretary of the Treasury to adjust them, or to allow him any portion of the difference before mentioned on any part of the stock in question, should wear to Mr. Barker the appearance of gross injustice. That impression was very much increased by an attempt made by the Treasury Department to deprive the proprietors of the ten million loan of all further benefit of the condition attached thereto, when nearly one-half of the twentyfive millions remained uncontracted for, and when its value in the market had depreciated about twenty per cent. below the contract price, by setting forth in the circular of the 30th November, 1814, the following declaration:

"It is proper to apprize you that the Attorney General has given an opinion to the Secretary of the Treasury, setting forth, among other things, that the condition in the letter of the Secretary of the Treasury of the 2d May, 1814, to the subscribers for the ten million loan, attached as soon as the second loan was made, (the loan of August, 1814,) that, on the happening of that event, it (the contract) no longer remained open and executory, subject to all the variations in price which might mark subsequent loans, until the whole twenty-five millions should be exhausted. This opinion has been adopted at the Treasury, and the supplemental stock now authorized to be issued is deemed to be in full of all demands upon the government for further issues of stock in the ten million loan under the contract above mentioned. It is not thought necessary, however, to take any release to this effect from the stockholders on delivering them the supplemental stock;" and, to give effect to this exercise of power, all the original

certificates of stock were ordered to be cancelled, and new ones issued, bearing on their face the following declaration: "Funded six per cent. stock of 1814. Loan of $10,000,000 of 2d May, 1814, on which the supplemental stock has issued.

Doubting, as your memorialists are constrained to believe, the soundness of this construction of the Attorney General, a new effort appears to have been made by the treasury to get rid of the condition, by laying the twenty-five million loan aside when it was only about half exhausted, and by making new loans under a subsequent law. By referring to the report of Mr. Dallas of the 6th of December, 1815, before quoted, evidence will be found establishing the fact of a loan having been made under a new law before the twenty-five million loan was more than about half exhausted. This surely could not

have been the intent and meaning of the Secretary when he made the contract for the ten million loan; if it had been, he would have defeated the effect of the condition altogether, by making all subsequent loans under new laws to be passed after making the said contract.

The only possible object in thus cancelling the old and issuing the new stock, was to give publicity and effect to the determination to deprive the holders of stock in the ten million loan of all further benefit from the condition in question, as no part of the operation of calling in the old and issuing the new stock was requisite for any other purpose. The books of the commissioners of loans designated the persons who held the stock on the 31st of August, 1814. Those books are the evidence always relied on by government in making their quarterly payments of interest; and the condition, when vested, could not, in the opinion of your memorialists, follow the stock without striking from the contract the word "then," or without a special assignment from the persons who held the stock when the more favorable terms were allowed.

After such promulgation by the officers of government that the condition was at an end, no person would give a cent more for this stock than they would for stock in other loans which had not that condition attached to it.

Mr. Barker was, therefore, compelled to sell at a very great loss, when, by the terms of the contract, he was entitled to the full benefit of the promised indemnity against depreciation, as long as any portion of the twenty-five millions remained uncontracted for. Otherwise, if government had contracted for a single thousand dollars the day following the 2d of May, at 873 per cent., the condition would have been at an end, although the residue might have been subsequently taken at 50 per cent.; in which case the holders of the stock in the ten million loan would only have been entitled to supplemental stock for one-eighth of one per cent., although from five to ten per cent. more had been given for the stock in consequence of such condition. A construction leading to such results could not have been intended by either of the parties.

Mr. Barker being thus deprived of the benefit of the condition by the act of an officer of government, when nearly one-half of the twenty-five millions remained uncontracted for, and when the market price of the stock had fallen twenty per cent. below the contract