Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-02-19
me nel,es Law UnconslItutlonai.

-, liz h.ds az defendant; was levied upon property
ficient TO satisfy it; delivery bond was given
,,5 forfeited which was returned by defendant to
the September term; upon which an alias execution
was issued returnable to the present term, and
which has been returned with the following endorse
ment thereon;
.Issued LIST day October 1860 Came to hand
and the collection OF the noney called for 10 this Vend Exp
Stayed by ase ACT passed y the present Legislature in
said Act upon three TO wit Mary Ann $780,
Ss "Stn l, SOW ana Mary % years Old worth
with security for the delivery Of said negroes the Court
Ss ~ on ens ~ Decemeer, Jc6i WHICH sad
bond shed with and made part Of return Jan h 1851
81. K. EDMoNDsoS. Sheriff
The present term Of the Court commenced the
fourth Monday In January, which was the 18th day
of the month.
The defendant in support of the suficiency of the
return, refers the Court to an Act of Assembly
passed the 18th Gay of January 1861, entitled IAN
Act prescribing the remedy for the collection Of
debts and relief Of the people, and to the third sec
ton thereof, which is IN these words:
SECTION 3D. Bel further enacted, That in all cases
where judgments or DEGREES have been rendered by
any of the Courts or Justices OF the Peace in this
State, upon which executions have not been issued,
/ or upon which executions have been issued ana not
levied the defendant defendants IN SAID judgment
or execution NAV appear before the Justice Of the
Peace or Court. in session. or before the clerk of
said Court in vacation, and upon giving good and
ample security to said Justice Court or clerk, the
case may be, in the manner provided In the second
section of this for giving additional security,
said execution shall be stayed for the period of six
months from the time said security shall be given
when execution may issue against the parties to the
original Judgment and the security for the stay of
| execution And that in all cases where any execu-
| ton or order of sale may be levied on personal
property that the debtor IN the process shall have
the option to avail himself of the preceding provi-
sions OF this act or it shall be lawful for him to
give bond in double the value of the property, and
good security to the officer for the forthcoming of
said property for sale at the Court House of the
county, such other place the parties may agree
upon in which the levy is made, on the first Monday
of December 1861 And if in the interval the
surety or suretes become insufficient, the levying
officer may notify the defendant and he shall give
sufficient additional security for the delivery of
| said property at said time and place. In order to
constitute the levy real estate valid to pro-
ceedings before Justice of the Peace the execu-
ton shall be registered in the Registers Office of
| the county where the land lies.
For the plaintiff it is insisted that this act is no
authority for the return for two reasons. LIST. Be
the return shows negligence upon its face and
that the defendant had subjected himself to this mo-
| ton before the act was passed I'd. Because the
act itself is unconstitutional, being repuguant 10
those provisions of the Constitution which prohibit
partial legislation and the enactment of laws I'M
pairing the obligation of contracts" The views
tertained by the Court Of the scope and true mean
ing of the expression impairing the obligation of
contracts ODfldlSS lue Necessity VI
the other grounds upon which it is insisted the
ton is supported. What is the obligation of con-
tract? 1t is that which Obliges compeS the per-
formsnce of it. And what is thaE 1t IS the law of
| the land administered and enforced by the Courts
All contracts understood to be made with refer
ence to the law of the place where made, at the
time when made, and the law Of the place when and
| where contract is made though not expressed
upon the face of the contract by implication and in
endment of the parties entered into and becomes part
/ nd IF no and the element the
agreement upDn.whieh each party relies to realize
the fruitiOn of his contract What would contract
be between two men cast npon an undiscovered IS
/ land where there was no law and no Judlcature!
| 1t would be mere vapor; for though it express ed
the terms of the agreement, It would be wanting in
| the element of legal obligation. without which it
| would be nothing-would possess neither vitality
nor virtue. If, then. the law of the place at the
time contract is made, enters into and becomes the
| obligatory part of it, how can it be said that
statute passed subsequent to the making of the con-
| tract aud charging the time for its per-
| Torrance, does not impair Its obligation? And
! If it be impaired, though not destroyed, the
statute is in conflict with the Constitution Time is
an element of great value in almost all contracts,
and the law which defeats partys just expecta-
ton the time lohes he shall reap the benefit of
his contract does him substantial injury as the
law which dminishes the quantity of the 5eneft
to which the agreement would entitle him. The
statute cannot be supported upon the idea that it
effects merely the remedy, and not the right. When
this execution was placed in the defendants hands,
it was as much the plaintiffs right TO have the mon
ey at this term of The Court it was to have the
amount called for in the face of the execution and
a law which should say he should have but ninety
per cent of the amount, would not more clearly in
terfere with his right than the law which says he
shall wait another year for his money This doc
trine seems to me to be reasonable and just and
has not only the sanction of our own Supreme
Court but that of the Federal and Others the most
enlightened courts IN the Government. See Towns
end VS. Townsend and others. Peck's Rep, from
page | to 81. Jones VS.. Crittenden Repository
Rep of North Carolina, page So. 2 Parsons on
Contracts, III, 1907. ! How. Rep, 81. do,
COS 6l2
1t is true that our own and other courts have
held that some remedies of peculiar character. Civ
en- for the enforcement of contracts might be taken
away subsequent to the making of contracts without
violating The Constitution, where, at the time of
making the contract, the law of the place gave the
plaintiff process against the body of the defend
AIT well as against his property. In that case
subsequent statute may take away the process
against the body without impairing the obligation
of the contract: and though the reasoning in sup
port of the distinction between the two classes of
cases is not very Ineligible yet it is definitely tax
en- and well sustained by authority. See 2Parsons
on Contracts, 707.
1t is also true that the Legislature has the
power to regulate the times of holding the Courts
and might reduce the terms from three to two, or
perhaps to one of a year, and in this way by
pshed by this act; and why may it not do that di-
recty which it may lawfully do Indirect
ly? The answer. ] presume is, if the Legisla-
ure has the power reduce the terms OF the court
to one in year, and the poStpoEement OF the col
lection of debts would be a necessary consequence
flowing from the execution of the power, that the
constitution must be understood to contain latent
but implied exception TO the universally OF the
PGle that the Legislature shall pass no law impair
ing the obligation of contracts and allows the ex-
ercise Of the power in that particular manner and
not otherwise To make the idea mere clear by
illustra ion. Suppose the constitution contained an
express clause giving the Legislature the power to
regulate the times of holding Courts by establishing
one two, or three terms IN the year. and with pow
er from time TO time to alter those regulations at
discretion Suppose it contained another clause eX-
pressly declaring that the Legislature should pass
no law calculated to hinder or delay the collection
of debts or the enforcement of contracts, by which
any contract entered into before the passage of the
law should be effected Under these provisions in
the constitution the Legislature first establishes the
three term system. While that system is in force
men make contracts and afterwards IN ITS dlscre-
ton the legislature declares there shall be but one
term The one term system greatly hin3ers and
DELAYS the collection of debts and enforcement of
contracts Yet it is in the very letter OF the consttu
ton that the Legislature shall exercise this power
at discretion The grant of power to DO the one is
as clear as the prohibition to do the other Now shall
the Legislature refrain from exercising the clearly
granted power, because consequences may follow
which were either unforeseen ty the trainers Of the
Constitution, or if anticipated, must have been IN
tended to be allowed as exceptions TO the restrain
ing clause? The Legislature may have no power to
egslate an officer out Of Office yet, if it possesses
tue power to abolish the Office, it may do that, and
thus, by knocking the bottom out OF the BUCKET
spill him out and in this way by ndlrectlon 40 tlAt
which it could not do directly. Many things in
themselves unlawful become lawful, by being the
necessary consequence of other things that are law
full If it weae lawful to import sheep into
country, but unlawful to import wool the importer
of sheep would not on account Of the wool on their
backs, be liable to the penalties Tor Importing
wool.
1t is unlawful for the Legislature to take the land
Of 4 10 give to B though it make just comperss-
ton. But it is lawful for the Legislature to take
the land Of for the public USE and after thus APP
propriating it, may then grant it to b, and by this
eircuity lawfully take the land of and give it to
B. The power to give it to T. ltilough not existing
as an independent pOwer,) being necessary eonse-
quence of ownership which had been right4uy &C