The daily clarion. [volume] (Meridian, Miss.) 1863-1866, 1866-02-23
MI JSIONS OF THE HIGH COURT
- FRRORs AND Ape AIS
THE STAY LAW.
opinion OF ALL TH JUDGES.
of the Act Alarmed.
Injury SPEcIAL TERM, 1866.

Ralph COfman, ct. al.
h. Rank of Kentucky.
chief Justice Handysdelivered the opinion
ftbe Court as follows:
This case is submitted to the Court on a
,otion, made in behalf of the plaintiffs in
-ror, to continue it, i'll virtue of the acts of
r. legislature of August 5th, 1861, and De-
uuber Ist, 1865, each entitled Fan act to
rodify the collection laws of this State"
The Judgment in the court below was
nainst the plaintiffs in error, the acceptor,
rsuer and endorser of bill of exchange
nj in favor of the defendant in error, the
a Elder thereof; and it is cOntended in sup
Gort of the motion, that this court cannot
kov proceed to judgment in the case, because
Etbe operation of these acts of the Legisla-
IN considering the motion, it is necessary
II refer only to the latter act, since its pro-
nsons appear to repeal those of the former
4 which might be applicable to this case.
The first section of the latter act provides,
w that all laws for the collection of debts on
Aouds, promissory notes, bills of exchange,
Bpsn accounts, or any other contract,
liability for the payment of money,
STe hereby suspended until the first
fav of January 1863, or until otherwise or
haTed bv law, except Ill cases of official liza
SiIities and pr0Uided, that no creditor shall
~ deprived of his remedy by attachment or
#istress, as now provided by law Pro
Eded that the provisions of this act shall
sOt be so construed as to prevent guardians
holn collecting such parts of debts due their
yards, as the Probate courts having juris-
Iiction of the same, may determine to be
Aecessary to the support and education of
nch wards"
Section provides that this act shall not
kpply to parties who have cases now pending
ID the courts, and who agree in open court
proceed to trial"
Section 5 provides that this act shall not
bply to contracts OF liabilities made and en-
red into after its passage; Provided such
pntracts or liabilities are not founded on
Rdebtedness existing prior to the passage of
iis act nor shall this act apply to debts due
the school funds of the several townships
ID counties in this State"
And section repeats all acts in conflict
9th this act.
IL opposition to the motion it is insisted
behalf of the defendant in error, that this
1t is in violation of the clause of the 10th
etion of article i of the Constitution of the
sbited States that "no State shall pass any
+ impairing the obligation of contracts
ID the 18th section of the Declaration of
#ghts prefxed to! the constitution of this
ate, containing the same prohibition to
Legislatures and the 18th Section of
same Declaration requiring, "that all
nrts shall be open and every person for
II injury done him in his lands, goods, per-
or reputation, shall have remedy by due
<nrse OF law, and right and justice admin
eered without sale, denial or delay -
ARd hence, that the act in question is mop
tive and void. We are thus called upon
AZ determine whether or not this act tran
ends the bounds of the power of the Legis-
ture of this State, and is, therefore, void
ltis argued by the counsel for the de-
hdant in error, that the legal remedies ex-
hlg at the time the contract was entered
10 form a part of the contract, and con-
fmte part of the obligation on the one
Prty, and of the right acquired by the 9TH
4 that the law gives the right to enforce
PrtOrmance by the remedies then in force
~ that any act of the Legislature mate
PLY altering those remedies, is an impair
B ofthe obligation of the contract, and
thin the prohibition of the Constitution.
This position, though sanctioned by high
rhorlty, we cannot regard as sound, to the
pad extent in which it is stated
phe obligation of a contract" imports,
the most part its binding force upon the
Ngor to perform the duty agreed on, ac-
rdlng to the nature and terms of the con-
ct II has reference to the performance,
Eher than to consequences, of a breach of
8 contract The essential constituents of
& contract are its validity, construction,
Eect and discharge, and these are governed
the law in existence at the time it was
pde, which enters into and forms a part of
|andH follows it wherever it may be sought
Tho aTnt.A aa1 Int
psf part, the act of the law making power,
Pviding mode of redress for the wrong
easioned by breach of the contract 1t
|es not necessarily constitute part of the
Eigation of the contract and except in
ees OF peculiar character, it is subject to
E tight of modification or repeal which is
Ae prerOgatiVe of the Legislature. Hence
Is familiar rule, that the nature, con-
fuctlon and effect of contract are gov
ped by the law existing when and where it
Rs made, or where it is by its terms to be
srtormed; and in this respect, the
ghts of the parties under the
Rntract are beyond the Leg
Eatlye power. But the remedy pertains to
ze forum that is, to the modes of pro-
edlng existing at the time and place at
nlch its enforcement may be sought, and
csc with certain restrictions and hmita-
M
Pgislatlve power of the State.
aBut the position under consideration APP
ears to us, in its breadth, to confound the
.ttled distinctions between rights accruing
Roer contracts, and, remedies for their en-
Fcement-distinctionS which are founded
the nature OF the subject, have always
gu recognized by the highest courts i'll this
Wlutry, and are admitted in the cases which
Hpear TO sanction the broad position here
utenued for. For if it be true, that the
kledleS existing at the time of making the
A'Eact become part of it to the extent to
~ Ine right to enforce performance by the
IeoleS then in force, it appears to us to
uhaYoldably TO the conclusion, that no
Pse9uent change could be made by the
eSiature in the terms of the courts, nor in
Pieadlngs and practice, nor in the time
Lehdenng judgment, nor in prosecuting
Reais or writs of error, nor in the statute
fihltatlOnS, which would in any way re-
"a the process of enforcing performance of
contract which existed at the time it
made; and the still more untenable con-
uence would follow, that this remedy
Puld have to be pursued in whatever forum
UT might be instituted, whether at home
III foreign State. Yet it is admitted, in
these cases, that these are matters within
L legislative power, and not within the
NHAoItIOn OF the ~COnStltutlOn-an aumlS-
pa which appears to be irreconcilable with
6 broad rule stated in some of the cases.
At Is true there may be cases where +
the remedy existing at the time
entering into the contract, may be-
me an essential part of it, But
|ese must be cases of peculiar character
a generally they are instances of remedies
Reelally provided by the terms of the con-
Rct, or by provisions of law securing par
euIar rights and remedies, rather than
pes under the operation of general rules
gulating remedies and modes of judicial
ecedure. Of this character are the cases
bronson VS. Kinzie and Green VS. Biddle,
Wheat, ].
But this power of the Legislature over
nedies is not without restriction; and any
lslatiOn which impairs the value and ben.
of the contract, though protesting to act
pm the remedy, must impair the right in
lded to be secured by the contract, and
ne. within the evil intended to be prohibit
oy the Constitution. For, though the
Eucular remedy existing at the time of
KING the contract is not an essential part
: yet no contract would be of any value
nout remedy to enforce it. Its obliga-
would be nugatory if all remedy to en-
II We're taken away, and it would be
paired If the remedy were INSTRUCTED and
uered lmpracticable. The remedy is,
etore, an incident to the contract; and
sn the party may have no right under
vOntract to any particular remedy, yet
"S right at all times to some adequate
available remadv m auforca IL and that