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time the contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the right to abolish all laws for this purpose, leaving the creditor to his remedy against property alone. “ Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may with hold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation.”1 Nor is there any constitutional objection to such a modification of those laws which exempt certain portions of a debtor's property from execution as shall increase the exemptions, nor to the modifications being made applicable to contracts previously entered into. The State “ may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, according to its own views of policy and humanity. It *must [* 288] reside in every State to enable it to secure its citizens from unjust and harrassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community


1 Col. 100. Or extended before it has expired. Ellis v. Jones, 51 Mo. 180. The obligation of the contract is not impaired if a substantial remedy remains. Richmond v. Richmond, &c., R.R. Co., 21 Grat. 611.

· Sturges v. Crowninshield, 4 Wheat. 122, per Marshall, Ch. J.; Mason v. Haile, 12 Wheat. 370; Bronson v. Newberry, 2 Doug. (Mich.) 38; Maxey v. Loyal, 38 Geo. 540. A special act admitting a party imprisoned on a judgment for tort to take the poor debtors' oath was sustained in Matter of Nichols, 8 R. I. 50.

? Bronson v. Kinzie, 1 How. 311, per Taney, Ch. J.; Rockwell v. Hubbell's Adm’rs, 2 Doug. (Mich.) 197; Quackenbush v. Danks, 1 Denio, 128, 3 Denio, 594, and 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Sprecker v. Wakeley, 11 Wis. 432; Cusic v. Douglas, 3 Kansas, 123; Maxey v. Loyal, 38 Geo. 531; Hardiman v. Downer, 39 Geo. 425; Hill v. Kessler, 63 N. C. 437; Farley v. Dowe, 45 Ala. 324; Sneider v. Heidelberger, ib. 126; In re Kennedy, 2 S. C. N. 8. 216; Gunn v. Barry, 44 Geo. 351. The case of Kibbey v. Jones, 7 Bush, 243, seems to be contra. The increase in exemptions, however, must not go to the extent to render the remedy nugatory or impracticable. Stephenson v. Osborne, 41 Miss. 119. It has been decided that a homestead exemption may


And laws which change the rules of evidence relate to the remedy only; and while, as we have elsewhere shown, such laws may, on general principles, be applied to existing causes of action, so, too, it is plain that they are not precluded from such application by the constitutional clause we are considering. And it has been held that the legislature may even take away a commonlaw remedy altogether, without substituting any in its place, if another and efficient remedy remains. Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage ;? and it was also held that an express stipulation in the lease, that the lessor should have this remedy, would not prevent the legislature from abolishing it, because this was a subject concerning which it was not competent for the parties to contract in such manner as to bind the hands of the State. In the language of the court: “If this is a subject on which parties can contract, and if their contracts when made become by virtue of the Constitution of the United States superior to the power of the legislature, then it follows that whatever at any time exists as part of the machinery for the administration of justice may be perpetuated, if parties choose so to agree. That this can scarcely have been within the contemplation of the makers of the Constitution, and that if it prevail as law it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its

own nature conditional upon the lawful continuance of the [* 289] process. The State is no party to * their contract. It is

bound to afford adequate process for the enforcement of rights; but it has not tied its own hands as to the modes by which it will administer justice. Those from necessity belong to the supreme power to prescribe; and their continuance is not the

be made applicable to previously existing contracts. Hill v. Kessler, 63 N. C. 437; Hardiman v. Downer, 39 Geo. 425; Ladd v. Adams, 66 N. C. 164. Contra, Homestead Cases, 22 Grat. 266. Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pronounced.” Per Merrick, Ch. J., in Morton v. Valentine, 15 La. An. 153. See Watson v. N. Y. Central R.R. Co., 47 N. Y. 157.

Neass v. Mercer, 15 Barb. 318. On this subject see the discussions in the Federal courts, Sturges v. Crowninshield, 4 Wheat. 122 ; Ogden v. Saunders, 12 Wheat. 213 ; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Curtis v. Whitney, 13 Wall. 68.

? Van Renselaer v. Synder, 9 Barb. 302, and 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502; Conkey v. Hart, 14 N. Y. 22.

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subject of contract between private parties. In truth, it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is, that the lessor may distrain, sue, re-enter, or resort to any other legal remedy, and the second is, that in cases of distress the lessee waives the exemption of certain property from the process, which by law was exempted. This waiver of exemption was undoubtedly the substantial thing which the parties had in view ; but yet perhaps their language cannot be confined to this object, and it may therefore be proper to consider the contract as if it had been their clear purpose to preserve their legal remedy, even if the legislature should think fit to abolish it. In that aspect of it the contract was a subject over which they had no control.” 1

But a law which deprives a party of all legal remedy must necessarily be void. “ If the legislature of the State were to undertake to make a law preventing the legal remedy upon a contract lawfully made, and binding on the party to it, there is no question that such legislature would, by such act, exceed its legitimate powers. Such an act must necessarily impair the obligation of the contract within the meaning of the Constitution.”2 This has been held in regard to those cases in which it was sought to deprive certain classes of persons of the right to maintain suits, because of their having participated in rebellion against the government. And where a statute does not leave a party a


i Conkey v. Hart. 14 N. Y. 30; citing Handy v. Chatfield, 23 Wend. 35; Mason v. Haile, 12 Wheat. 370; Stocking v. Hunt, 3 Denio, 274; and Van Renselaer v. Snyder, 13 N. Y. 299.

2 Call v. Hagger, 8 Mass. 430. Osborne v. Nicholson, 13 Wall. 662; U. S. v. Conway, Hempst. 313; Johnson v. Bond, ib. 533; West v. Sansom, 44 Geo. 295. See Griffin v. Wilcox, 21 Ind. 370; Penrose v. Erie Canal Co., 56 Penn. St. 46. In Jackoway v. Denton, 25 Ark. 641, a clause in the Constitution of Arkansas declaring all contracts for the sale or purchase of slaves void, was held invalid. Affirmed in White v. Hart, 13 Wall. 649. An act withdrawing all the property of a debtor from the operation of legal process, leaving only a barren right to sue, is void. State v. Bank of South Carolina, 1 S. C. n. s. 63.

3 Rison v. Farr, 24 Ark. 161; McFarland v. Butler, 8 Minn. 116; Jackson v. Same, ib. 117. The case of Drehman v. Stifle, 8 Wall. 599, should be considered in connection with these. A remedy may, however, be denied to a party until he has performed his duty to the State in respect to the demand in suit : e. g. paid the tax upon the debt sued for. Walker v. Whitehead, 43 Geo. 538 ; Garrett o. Cordell, ib. 366; Welborn v. Akin, 44 Geo. 420.

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substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce

the remedy, so as to destroy it entirely, and thus impair [* 290] the contract so far as it is in the * power of the legislat

ure to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.

And where a statute dividing a town and incorporating a new one enacted that the new town should pay its proportion towards the support of paupers then constituting a charge against the old town, it was held that a subsequent statute exonerating the new town from this liability was void as impairing the contract created by the first-mentioned statute. And in any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it, but being legal when made, they remain valid notwithstanding the repeal.3

So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold on execution for less than two thirds the valuation made by appraisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or obstruction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution. So a law which takes away from

1 Oatman v. Bond, 15 Wis. 28. As to control of remedies, see post, 361. 2 Bowdoinham v. Richmond, 6 Greenl. 12.

3 Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515; McCauley v. Brooks, 16 Cal. 11; Commonwealth v. New Bedford Bridge, 2 Gray, 339; State r. Phalen, 3 Harr. 441; State v. Hawthorn, 9 Mo. 389.

* McCracken v. Hayward, 2 How. 608; Willard v. Longstreet, 2 Doug. (Mich.) 172; Rawley v. Hooker, 21 Ind. 144. So a law which, as to existing mortgages foreclosable by sale, prohibits the sale for less than half the appraised value of the land, is void for the same reason. Gantley's Lessee v. Ewing, 3 How. 707; Bronson v. Kinzie, 1 How. 311. And a law authorizing property to be turned out in satisfaction of a contract is void. Abercrombie v. Baxter, 44 Geo. 36. The “scaling laws,” so called, under which contracts made while Confederate notes were the only currency, are allowed to be satisfied on payment of a sum equal to what the sum called for by them in Confederate notes was worth when

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mortgagees the right to possession under their mortgages until after foreclosure is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. • By this act the mortgagee is required to incur the additional expense of foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of redemption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment of the debt, as he chooses, and the mortgagee in the * mean time is sub- [* 291] jected to the risk, often considerable, of the depreciation in the value of the security.” So a law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes, after the sales have been made ; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory note. So a law which shortens the time for redemption from a mortgage, after a foreclosure sale has taken place, is void ; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under

they were made, have been sustained, but this is on the assumption that the contracts are enforced as near as possible according to the actual intent. Harmon v. Wallace, 2 S. C. n. s. 208; Robeson v. Brown, 63 N. C. 554; Hillard v. Moore, 65 N. C. 540; Pharis v. Dice, 21 Grat. 303 ; Thornington v. Smith, 8 Wall. 1.

· Mundy v. Monroe, 1 Mich. 76; Blackwood v. Vanvleet, 11 Mich. 252. Compare Dikeman v. Dikeman, 11 Paige, 484; James v. Stull, 9 Barb. 482; Cook v. Gray, 2 Houston, 455. In the last case it was held that a statute shortening the notice to be given on foreclosure of a mortgage under the power of sale, from twenty-four to twelve weeks, was valid as affecting the remedy only; and that a stipulation in a mortgage that on default being made in payment the mortgagee might sell “

according to law," meant according to the law as it should be when sale was made. See also Batbold v. Fox, 13 Minn. 501, in which it was decided that in the case of a mortgage given while the law allowed the mortgagee possession during the period allowed for redemption after foreclosure, such law might be so changed as to take away this right.

2 Robinson v. Howe, 13 Wis. 341; Dikeman v. Dikeman, 11 Paige, 484; Goenen v. Schroeder, 8 Minn. 387. But see Stone v. Basset, 4 Minn. 298; Heyward v. Judd, ib. 483; Freeborn v. Pettibone, 5 Minn. 277.

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