Daily Nashville patriot. [volume] (Nashville, Tenn.) 1860-1862, 1861-02-05

act. in ibe above Gaze. says: Does an act to
suspend execution impair the obligation of
contracts made before ii7 The law is the
source of the obligation. and the extent of
obligation is defined by The law in use at the
time the contract Il made. If this law directs
specific execution, and subsequent act
declares that there shall not be a specific
execution. the Obligation of the contract is
lessenned and impaired.
If the law in being at the date of the con-
tract give Immediate execution, a subsequent
act declaring that toe execution should not
issue for two years, would lessen or impair
the contract as much in principle as if it sus-
pended execution forever.
But II is urged Ivy those who insist on the
constitutionality of this measure, that there
j. distinction between the remedy and the
right That while the Legislature cannot af
feet the one they may the other. This is
true to some extent The Legislature may
alter remedies, but whenever this alteration
changes the stipulations aud intentions of the
parties. it then affects the obligation of the
contract. 1t cannot, for instance, dischage
the debtor on payment of smaller sum than
that contracted for, or at different time. and
this is even admitted by the friends of the Bill.
yet they contend that after the contract is
merged in a Judgment, that judgment
stayed for definite time and the stay actu-
ally out, that the Legislature may intervene
and postpone the day of payment six months
longer. (and if six months why not as many
-centuries.) without the consent of the credi-
tor. l. not time of payment as essentially
part of the contract as the amount TO be paid!
And If the Legislature may change the time
of payment. then why not the amount? The
Limitation upon legislation affecting the re-
medy is thus stated 10 the case in Peck above
recited. The Legislature may alter rene
I,,S dc
teeedent contracts be rendered less e6Scacious
or more dilatory than those ordained bythellaw
in being when the contract was made" And
this rule is certainly supported by undoubt-
ed authority. In the case of Fishers negroes
Us. Dabbs, 6 Yerg. Il9, another limitation as
to the power of the Legislature to alter ra-
NEEDLES, is stated in the following language:
"A distinction between the right aud the re-
medy is made and exists. but where the re-
mede has attached itself to the right, and is
being prosecuted by due course of law, TO
separate between them, and take away the
remedy is to do violence to the right, and
comes within the scope of that provision of
our Constitution, which prohibits laws i'm
pairing the obligation of contracts" Now
10 apply the principle thus stated to the pro-
visions of this Bill: contract to pay money
on a certain day is broken: The creditor ap
plies to the Court for enforcement of the con
ituCl. ItUuHfCU. lesuSu,
and a levy made, aud the officer is proceeding
to sell the property. Here the remedy has at
tached itself to the right, and is, in fact,
part oft, and no legislative action can reach
it without riding down the constitutional
provision against impairing the obligation OF
contracts.
But it is said, these are old cases; and be-
sides pleading the statute of limitation on
them, it is insisted that different principle
has been established in the case OF WOedfin
VS.. Hooper, / Humphreys.
This case invOlveddhe constitutionality of
the act of 1912. abol;shing the ca sa. law,
which gave a creditor execution against the
body of the debtor when no property could
be found. The Supreme Court held this act
and correctly 60. This right
of Imprisonment, hesides being odious, op-
Fressive. barbarous, aud contrary to natural
Justice, was more in the nature of a penalty
for uOn-payment, than means of enforcing
it. The law going upon the erroneous pre-
sumption, that every man who did not pay
his debts was dishonest. This was the only
question determined in this case. and which
is not at all in conflict with the case in Peck.
the Court not even intimating that the princi-
pie of this old case was not law.
There is no similarity between the act of
1919, the bill now before us, and the act of
1912. The act of 1912 did not add new con-
1tions and stipulations to the contract. 1t
did not postpone the day of payment beyond
he lime agreed upon between the parties.
1t did not authorz, the discharge of the
debtors liability by tn. payment of small
ar sum. II left the remedy by execution
against the goods and chattels, lands and
teuements OF the debtor unObstructed. Not
so with the act of 1919, and the bill now
pending. s. vEsRz5esEE So
II the principle cGntended for by the men,
her from Sumner, (Mr. Bennett,) be correct.
hat the legislature may pass any law affect
ing the remedy only, aud that the section of
The Constitution under consideration does not
apply to such legislative action. then. indeed.
might the legislature close all the courts in
The State, refuse all process, and exempt all
property from execution, all of which relates
10 the remedy, ard thus as efftctually des-
roy mans right as if the contract itself was
declared void. Ia the language of our Su- |
lseme Court in the recent case of Morgan ct |
lis, VS.. Reed, 2 Head, 1884: IS the remedy |
: sometimes so Incorporated with the |
light, that it would be extremely difficult |
( not impossible to maintain in any proper
euse, that the former can be impaired with
nut affecting The latter. But this point we |
iced not discuss. as it is clear beyond all doubt |
hat the prohibitions of the Constitution in |
etter and spirit apply as much to remedies as |
% rights. And surely this is correct, for if |
he remedy may be trittered away, what is |
he right worth?' These decisions of our |
Supreme Court, are supported by the |
decisions of the Supreme Court Of the United |
States.
In the case of Bronson, vs. Kinzie l How,
'lI, the Court say, 'tbere has been of late
tendency in the Courts of the United States, |
o render the distinction between the obliga-
ion and the remedy to q great extent inop-
nr1li fbC 1r-
connected with the obligation, as in many re-
pects to be a part of it, and holding uncon-
such Legislation on remedies exist
ng at the time the contract was made as by |
change of the remedy takes away OF mate
tally impairs the creditors rights" Now
lpply the principle above set forth to the |
provisions of the Bill under consideration.
Under existing law the creditor, at the expi-
alton OF the stay of months. if before II
Justice Of the Peace, and if before Court
If Record in a certain number of days after
endition OF Judgment entitled to an execu-
ion TO be immediately levied upon the de-
endant's property, and to have the same
old on ten days notice for cash to the higest
bidder and the proceeds applied to the salts
action of his claim. &is-
This bill proposes to take away this right
or six months, AMI therefore comes within
he rule laid down in the above case. /
And in still later case, the case of Nc
Jrackin VS.. Hayward How. 608-6l2, a
tatute of the State Of illinos, which provid-
d that sale shall not be made of property
evied on under execution, unless it brings
wo-thirds of its valuation according to the
lppraisement of three house-holders, was de-
dared unconstitutional, as impairing the OBJ
igatiOn OF the contract Now | submit that
IN appraisement law. such as the above, be-
ng merely intended for delay, is not distin-
,uishable in principle from the present bill,
which Internationally snspends execution
or a certain time. Now in this case the
supreme Court hold that the right of ;ihe.
.reditor given by existing law at the
lime the contraet was entered into. to
lave if said contract was broken, judg-
nent and execution against the debtor, and
sale of his property for whatitwould bring
o satisfy his debt, was necessarily referred
% in the contract, and became Is much
,aFt of the contract as though expressed in
{. The right of the creditor to have sale
4