The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1866-09-05
The Daily n ews.
WEDNESDAY MORNING, SEPTEMBER s, 1866
The Stay Law Unconstitutional.
OPINION OF THE COURT OF ERRORS

OPINION OF THE COURT OF ERRORS
The state VS.. John e. Carew, Sheriff Char
lesion District.
GEORGE sHARLoCK vs.. B. NJ. RIVERS.
In the Court Of Errors, Columbia, May, 19G6-Dua
kin Chiet Justice.
On 21st December 1861, the Legislature OF OF
South Carolina passed an Act entitled IAN Acs 70
extend Relief to debtors and to prevent the sacii
Rv the frat section il is provided that "It shall
not be lawful for any officer OF this STATE W
or execute any mesne or final process OF any ~
the Courts of this State for the collection OF nohey
until after the expiration of the first session u
the next General Assembly OF this State, except !,
in the cases therein after specially Provloeu.
This Act wal, renewed in February and december,
1863-again in December, 1864, and in Decemoer,
1865, it was continued in force until INT she aoJouln
ment of the next regular session OF the general
Assamhlv INT. by the second section of the last
mentioned Act, it was declared that nothing
therein contained should be construed to apply to
any causes of action which might tnereaIter Or
ginate: nor should any debtor be entitled to the
Renefb Of the Act who should fail, on three
months previous notice, to pay his creditor, on or
before 1st December, 1866, onetenth of the aggre-
gate amount due at the time OF demand; and on
s,1ch failure the creditor was authorized to pro-
ceed 10 Judgment and execution, but that no exc
cution should be enforced for more than one.tenth
as aforesaid during the continuance OF the Act.
Similar provision was made in regard to any
debtor on final process at the time subssting.
The case first entitled is that OF y Rule on the
Sheriff to show cause why he had failed to serve
the writ. The second case was q motion, on be-
half of the defendant, to set aside the service OF
the writ. The cause shown by the Sheriff was
that the original cause OF action was money
bond executed in February, 1860, and he relied on
the prohibition OF the Acts above recited as the
justification of his refusalto serve the process.
The cause of action in the second case was due
bill payable on demand in 1860.
The rule against the Sheriff was discharged,
and the service Of the writ in the latter case was
set aside by order of the Circuit Courts.
An appeal was taken upon the following grounds:
Because the ACT Of December, 1861, entitled "an
Act to extend relief to debtors and to prevent the
Act of 21st December, 1866 entitled san Aot4to
amend the law known as the Stay Law" impair
the obligations Of contracts existing at the time
Of the passage OF said Act !; are repugnant to the
Constitution of the United States and Of this
State and are unconstitutional and void.
The cases were transferred from the Court OF
Appeals to the Court of Errors, as the highest
tribunal in the Statv, for final adjudication.
By 10 Section, Article, Constitution United
States, passed 18th September 1787 it is declared
that no State shall enter into any treaty, alliance
or confederation, grant letters OF marque and re-
prisal, coin money, emit bills OF credit, make
anything but gold and silver coin tender in pay.
ment Of debts, pass any bill Of attainder, er post
facto law, or law impairing the obligation of
contracts. &c. in the Constitution Of the State OF
South Carolina, adopted Sd June, 1890, Article,
Section, it is declared, nor shall any bill of at
tainder, er post facto law, or law mpairing the
obligation OF contracts, ever be passed by the
Legislature of this State. A prohibition in the
same terms is adopted in the Constitution OF this
State of September, 1866. (Article 8, Section ~
It is necessary to determine what is ssthe obliga
tion OF q contract" as a preliminary to the inquiry
whether it has been impaired by State legisla-
tion. The distinction between the contract itself
and the obligation is thus stated in Sturges vs
Orowninshield a Wheat, 1877: ga contract
is an agreement by which party undertakes
to do or not to do a particular thing. The law
binds him to perform his engagement, and this
is the obligation of the contract" In the ar
gument of that cause, Mr.. Hunter remarked that
tthe Judges Of the State Courts and Of this Court
have confessed that there is, in these words, 'im
pairing the obligation of Contracts an inherent
obscurity. They are taken not from the English
common law, or used as q classical or technical
term of our jurtsprudenoe in any book of author
ity Were they furnished from that great treas
ury and reservoir OF rational jurisprudence, the
Roman law !? We are inclined to believe this. The
tradition is that Mr., Justice Wilson, who was q
member Of the Convention, and a scottiEl lawyer,
and learned in the civil law, was the author OF the
phrase" Whatever may be the correctness OF
the tradition, the term "obligation" is certainly
recognized familiarly by the Roman jurists as de-
noting the legal tic which imposes q necessity Of
OOlQR VI hUstHlulu5 IEom paItIoulhI dCG as uls-
tinguished from the imperfect obligation arising
from gratitude, charity or other moral duties,
binding upon conscience, but having no legal
remedy for their enforcement. This latter is the
essence of the legal obligation Sub hac condi
tione, 81 uolane zuRa fit obtgatio. CORPUS Juris,
Book Al, Chapter 7, Lex. 81 According to the
Roman law, where the right Of action is destroy
ed, the legal obligation ceases to exist. Cum nua
subest causa c0nStat non posse c0nstat5 0Otlga0n-
en- CORPUS Juris, Book g. Chapter IA, L. Z, S24
de pactis.)
In Ogden us. Saunders, 70 Wheat, it is said ''the
obligation OF contract as spoken OF in the Con-
stitution, is legal, not mere moral, obligation;
it is the law which binds the party to perform his
undertaking. The obligation does not inhere or
subsist in the contract itself propro U5gore, but
in the law applicable to the contraot and this law
is not the universal law OF nations, but 1t Is the
Law OF the State where The contract is made. ANY
law which enlarges, abridge: or in any manner
changes the intention OF the parties resulting
impairs it," Adverting to these principles, Mr..
Justice Trimble, who acted with the majority OF
the Court, thus expresses himself: "The great
principle intended to be established by the Con-
stitution was the inviolabiity of the obligation OF
contracts as the obligation existed, and Was re.
cognized by the laws i'll force at the time the con-
tracts were made." ssWhether the law processes
oapply to the contract ITSELF or to regulate the
remedy, it is equally within the true meaning OF
CATION OF existing contracts do not mean to
say that every alteration Of the existing remedies
would impair the obligation of contra3ts but l
do say, with great confidence, that d law taking
away ali remedy from existing contracts would DU
manifesely a law impairing the obligation of con-
tracts. On the other hand, a great variety OF ill.,
stances may readily be eirlagned in which the Legis