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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 withhold 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.”] So the exemption laws of a State may be modified from time to time, and the modifications made applicable to existing contracts, provided the exemptions are not so increased as to impair and lessen the value of the contract itself. 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 [* 288] its own views of policy and humanity. It * must re

side in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and wellbeing of every community.”

» 2


1 Sturges

Crowninshield, 4 Gunn v. Barry, 44 Geo. 351. It has Wheat. 122, per Marshall, Ch. J.; been decided that a homestead exMason v. Haile, 12 Wheat. 370; Bron- emption may be made applicable to son v. Newberry, 2 Doug. (Mich.) 38; previously existing contracts. HardeMaxey v. Loyal, 38 Geo. 531. A spec- man v. Downer, 39 Geo. 425; Ladd r. ial act admitting a party imprisoned on Adams, 66 N. C. 164. Contra, Homea judgment for tort to take the poor stead Cases, 22 Grat. 266; Edwards debtors' oath was sustained in Matter v. Kearsey, 96 U. S. Rep. 595, which of Nichols, 8 R. I. 50.

must be regarded as settling the ques. 2 Bronson v. Kinzie, 1 How. 311, tion. And see Gunn 8. Barry, 15 per Taney, Ch. J.; Rockwell v. Hub- Wall. 622; Kibbey v. Jones, 7 Bush, bell's Adm’rs, 2 Doug. (Mich.) 197; 243; Kennedy v. Stacey, 57 Tenn. Quackenbush v. Danks, 1 Denio, 128, 220; Lessley v. Phipps, 49 Miss. 790. 3 Denio, 594, and 1 N. Y. 129; Morse “Statutes pertaining to the remedy v. Goold, 11 N. Y. 281 ; Sprecker v. are merely such as relate to the course Wakeley, 11 Wis. 432; Cusic v. Doug- and form of proceedings, but do not las, 3 Kan. 123; Maxey v. Loyal, 38 affect the substance of a judgment Geo. 531; Hardeman v. Downer, 39 when pronounced.” Per Merrick, Ch. Geo. 425; Hill v. Kessler, 63 N. C. J., in Mortun v. Valentine, 15 La. 437; Farley v. Dowe, 45 Ala. 324; Ann. 150. See Watson v. N. Y. Sneider v. Heidelberger, 45 Ala. 126; Central R. R. Co., 47 N. Y. 157. In re Kennedy, 2 S. C. n. s. 216;

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 common-law 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 process. The State is no party to * their contract. (* 289] 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 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

Neass o. Mercer, 15 Barb. 318 ; Bronson v. Kinzie, 1 How. 311; McRich e. Flanders, 39 N. H. 304; How- Cracken v. Hayward, 2 How. 608 ; ard 6. Moot, 64 N. Y. 262; post, pp. Curtis v. Whitney, 13 Wall. 68. *367-369. On this subject see the 2 Van Rensselaer v. Synder, 9 Barb. discussions in the federal courts, Stur- 302, and 13 N. Y. 299; Guild v. ges r. Crowninshield, 4 Wheat. 122; Rogers, 8 Barb. 502; Conkey v. Hart, Ogden 0. Saunders, 12 Wheat. 213; 14 N. Y. 22.


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.”'? This has been held in regard to those cases in which it was sought to deprive certain classes of persons of the right to maiutain suits, because of their having participated in rebellion against the government. And where a statute does not leave a party


1 Conkey v. Hart, 14 N. Y. 30; of a State, in an amendment to their citing Handy v. Chatfield, 23 Wend. constitution, taking away rights of 35; Mason v. Haile, 12 Wheat. 370; action, or other rights, so long as they Stocking v. Hunt, 3 Denio, 274; and abstain from impairing the obligation Van Rensselaer v. Snyder, 13 N. Y. of contracts, and from imposing pun299. See Briscoe v. Anketell, 28 Miss. ishments. The power to do so has 361.

been exercised with a view to the 2 Call

v. Hagger, 8 Mass. 430. quieting of controversies and the resSee Osborne v. Nicholson, 13 Wall. toration of domestic peace after the 662; U. S. v. Conway, Hempst. 313; late civil war. Thus, in Missouri and Johnson v. Bond, Hempst. 533 ; West some other States, all rights of action v. Sansom, 44 Geo. 295. See Griffin for any thing done by the State or v. Wilcox, 21 Ind. 370 ; Penrose v. federal military authorities, during the Erie Canal Co., 56 Penn. St. 46; war, were taken away by constituThompson v. Commonwealth, 81 Penn. tional provision; and the authority to St. 314 ; post, p. *361. An act with- do this was fully supported. Dreh-' drawing all the property of a debtor man v. Stifel, 41 Mo. 181; s. c. in from the operation of legal process, error, 8 Wall. 595. And see Hess o. leaving only a barren right to sue, is Johnson, 3 W. Va. 615. A remedy void. State v. Bank of South Caro- may also be denied to a party until lina, 1 S. C. n. s. 63.

he has performed his duty to the 8 Rison v. Farr, 24 Ark. 161 ; State in respect to the demand in suit: McFarland v. Butler, 8 Minn. 116; e. g. paid the tax upon the debt sued Jackson v. Same, 8 Minn. 117. But for. Walker v. Whitehead, 43 Geo. there is nothing to preclude the people 538; Garrett o. Cordell, 43 Geo. 366 ;


a 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 the contract so far as it is in the * power of (* 290] the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.

It has also been held 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, that a subsequent statute exonerating the new town from this liability was void as impairing the contract created by the first-mentioned statute ;? but there are cases which have reached a different conclusion, reasoning from the general and almost unlimited control which the State retains over its municipalities. In any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it; these being legal when made, they remain valid notwithstanding the repeal.4

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

Welborn v. Akin, 44 Geo. 420. But this Sedgwick, 15 Cal. 515; McCauley is denied as regards contracts entered v. Brooks, 16 Cal. 11; Commonwealth into before the passage of the law. v. New Bedford Bridge, 2 Gray, 339 ; Walker v. Whitehead, 16 Wall. 314. State v. Phalen, 3 Harr. 441; State v.

1 Oatman v. Bond, 15 Wis. 28. Hawthorn, 9 Mo. 389. As to control of remedies, see post, p. 5 McCracken v. Hayward, 2 How. *361.

608; Willard v. Longstreet, 2 Doug. ? Bowdoinham v. Richmond, 6 Me. (Mich.) 172 ; Rawley v. Hooker, 21 112.

Ind. 144. So a law which, as to ex: See ante, p. *193, and cases cited isting mortgages foreclosable by sale, in note.

prohibits the sale for less than half • Tuolumne Redemption Co. 0. the appraised value of the land, is 4

takes away from 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 tlie [* 291] * mean time is subjected 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 promisvoid for the same reason. Gantley's Paige, 484; James v. Stull, 9 Barb. Lessee v. Ewing, 3 How. 707; Bron- 482; Cook v. Gray, 2 Houston, 455. son v. Kinzie, 1 How. 311. And a In the last case it was held that a law authorizing property to be turned statute shortening the notice to be out in satisfaction of a contract is given on foreclosure of a mortgage void. Abercrombie v. Baxter, 44 Geo. under the power of sale, from twenty36. The “ scaling laws," so called, four to twelve weeks, was valid as under which contracts made while affecting the remedy only; and that Confederate notes were the only cur- a stipulation in a mortgage that on rency, are allowed to be satisfied on default being made in payment the payment of a sum equal to what the mortgagee might sell “ according to sum called for by them in Confederate law,” meant according to the law as notes was worth when they were made, it should be when sale was made. have been sustained, but this is on the But see Ashuelot R. R. Co. v. Eliot, assumption that the contracts are en- 52 N. H. 387, and what is said on forced as near as possible according to the general subject in Cochran the actual intent. Harmon v. Wal- Darcy, 5 Rich. 125. In Bathold o. lace, 2 S. C. N. s. 208; Robeson 0. Fox, 13 Minn. 501, it was decided Brown, 63 N. C. 554 ; Hillard v. that in the case of a mortgage given Moore, 65 N. C. 510 ; Pharis v. Dice, while the law allowed the mortgagee 21 Grat. 303 ; Thornington u. Smith, possession during the period allowed 8 Wall. 1.

for redemption after foreclosure, such 1 Mundy v. Monroe, 1 Mich. 76; law night be so changed as to take Blackwood v. Vanvleet, 11 Mich. 252. away this right. But quere. Compare Dikeman v. Dikeman, 11

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