The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1866-02-09

>. L. klnard, NCWOcrry.
Constftutionalityo of the Stay Law
Opinion of Judge Allrich.
We find in the Charleston Ne,rs an
interesting opinion from Judge AL
drich on the constitutionality of the
Stay Law, delivered in Court, on
Tuesday last. AS the subject is one
of greataand general interest at this
time, we subjoin the following cx-
tracts from his Honor's opinion. The
case was submitted under rule on
Mr.. Carew, Sheriff of Charleston Dis
trict:
At the time the first Act was passed
by the Legislature, popularity called
the Stay Lar, this constitutional OBJ
lection was raised, and at each sub
sequent enactment the same exception
has been taken, although I do not
now remember that it has been car
nestly pressed or fully argued I
thought then, as I think now, that
the remedy is an incident to the con-
tract, but no part of the contract. 1t
is true that contract, in itself legal,
once entered into, cannot be de-
stroyed by subsequent legislation,
because that would be directly in the
teeth not only of the Constitution of
the United States, but of our own
State, for both Constitutions have the
same provision: ssNo State shall pass
any bill OF attainder, &c posi- tacdo
law, or law impairing the obligation
of ,%,.~a Be-
Art. 1.
''Nor shall any bill of attainder, ec
post .fac:o law, or law impairing the
obligation of contracts, ever be passed
by the General Assembly '-Consl. s.
c., 100, Art. 10, Sec. 2. Coust S.
c., 1865, A7I 8, Sec. 2.
When the State says to the creditor
Tin time of general distress) you
may not add to the calamity which
overwhelms the land, by harassing
with lawsuits and sheriff's sales, those
who happen to be in your debt, does
such mandate impair the obligation
of the contract? A, in November,
promises to pay 3 one hundred dol
lars, sixty days after date. In De
cember, the Legislature pass the law
entitled can Act to extend relief to
debtors, and to prevent the sacrifice
: of property at public sales. The Act
suspends the remedy, and also sus-
pends the operation of the statute of
limitations. Now what is the obliga-
ton of that contract ? That in sixty
days B will pay to A the hundred
dollars. That is the whole obliga-
tion-nothing more and nothing less.
AS an incident to this contract, how
ever, if B does not pay the hundred
dollars, as therein stipulated, A has
the right to sue him, and b runs the
risk of costs and a sale of his proper
ty by the sheriff But is this right to
sue, and this danger of costs and sale,
part of the obligation of the con
tract, or only the legal incident, RE
MEDY, to the contract ? Who can
oblige A to sue ? The law cannot.
B cannot. Nopower can compel him
to institute a suit for the enforcement
of his contract If the remedy be
part of the contract, it is equally
binding upon the creditor and debtor,
upon both parties to the agreement.
l have said, the debtor cannot com
pei tue creditor to sue if he could,
1t might relieve him from hopeless in
solvency, and enable him, by sur
render of all his effects, to commence
life anew, with prospect of retriev-
ing his fortunes But not so the
creditor, relying upon the integrity,
the industry, the experience, and the
business capacity of the debtor, rests
upon his remedy, and refuses to press
it-thus trammel'ing the energies and
raining the fortunes of the honest
debtor, who cannot surmount his
difficulties. Now, if the remedy be a
part Of the contract, part of the
obligation, it is mutual it is as bind
ing upon the creditor as it is upon
the debtor and while the creditor
has the right to enforce it for the col
lection of his debt, the debtor should
have the right to enforce it for the
relief of his condition for we can all
conceive the case in which it may be
rs important to the debtor to compel
the enforcement, as it may be to the
creditor to insist IDOn tho De71OrD3