The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-12
dies, as it undoubtedly may do, II naua %

dies, as II undoubtedly may do, u niust 20
alter or change them as TO furnish remedies
substantially as efficient for enforcing tho
performance Of the contract 90 those in
existence at the time the contract was
made. II II goes beyond this, iN lseislA-
tion comes within the prohibition. OF the
Constitution Of the United States and Of
this State, and II therefore unconstitutional
and void.
It will be seen that some Of the suthofi.
ties cited hold that the " "obligatiohn and
the "remedyn mean the Same thing-Are
synonymous-in the language Of Mr.. Sedg.
wick-are convertible terms" II ap.
pears to me that this is an erroneous view,
and that much confusion Is likely 70 result
from 1t. The "obligation" and the
"remedy" refer to different objects, and
have totally different signifcations. The
obligation of the contract Is the ligament,
tie, uincalum juris, obligation, which the
laws relating to contracts In existence at
the time imposes opon the parties 70 tho
contract, and by which It holds them bound
to the performance OF their respsetive
parts of that contract. The remedy 70
the instrument or means which, In the form
of judicial proceedings, the law furnishes TO
enforce the obligation ITO make Il
available. The obligation exists In oil Its
binding force without the remedy. 1t ID
then barren and unavailable. The remedy
supplies the means--to speak moro accu-
rately, is the means by which the obligation
is made available, and yields its benefits to
the party claiming it. The remedy exists
before the obligation-before the contract
is made-out Of which the obligation
springs, and is the means furnished by all
civilized governments to make the obliga-
ton available. The distinction, however,
is not material in this case.
In support Of the right Of the Legisls.
ture to enact the statute In question. cer-
tain principles Of law and equity in force
at the time the Constitution Of the United
States was adopted, and now in force, we're
cited and relied on in the report. Refer
ence is made to the proceedings at She
riffs sale in court Of law, when that Of
ficer is required, If there be no bidders in
attendance, or only nominal bid made,
to stop the sale and return, "N0 sale for
want of bidders" Let it be borne in mind
that this return is made after the market
has been fairly tested by bona fde effort
to make sale in each case. But the Le-
gislature allows no such test in any case.
1t expressly prohibits it. The Legislature
assumes there will be no bidders at any
sale, and therefore it forbids all sales; al
though it is well known that in many por-
tons of the country sales are made, and
property brings its full market value.
Surely this proceeding in court OF law
furnishes no authority, express or by way
of analogy, for the power exercised by the
Legislature in denying all remedies TO
creditors.
In further support Of the right Of the
Legislature to pass this statute, the report
quotes the well-established equitable prin-
ciple, /" that time is not Of the essence of
contract in equity" Now, this maxim OF
equity, true as general proposition, pre-
sents many instances in which 1t Is greatly
modified by the courts when applied to
individual cases. Among the modifica-
tions is the one that time may be made
of the essence Of the contract by the ex-
press agreement of the parties to the con-
tract. In Jackson Us. Liggon, 8 Leigh,
1871, Tucker, p, said: "That parties
may, if they please, make time Of the
essence Of their contract, is now clearly ad-
mitted, and seems to follow from the un-
questioned right of parties to frame their
contracts at pleasure, unless, indeed, it can
be shown that this stipulation is against
moral right or positive law. 1t would
is, in this case, in other cases, to be looked
to; and when it isplain that in default ofa
strict performance on one part, 1t was the
intention that the contract should cease to
be binding on the other, that intention must
be carried into effect; for courts do not sit
to overthrow the agreement Of parties, but
to carry them into effect when they are le-
gal, equitable, and reasonable"
1t will thus be seen that parties may, by
their agreement, make time of the essence
of the contract"; and when they do,
courts of equity will recognize that fea-
ture in the contract, and enforce it as scru-
pulously as they will any other element OF
the contract. But the Legislature acts
upon no such principle. BY the passage Of
this statute they ignore the feature OF time
in the contract altogether; and assuming
that it comes in conflict with some vague
and underlined "objects Of paramount pro-
priety and justice" makes 1t "yield to
them."
Now, surely this principle Of the courts,
"that time is not Of the essence Of
contract in equity" subject as 1t is to the
many notifications have referred to, and
especially to the one that parties may, by
express agreement, make time of the es-
sence of their contract, furnishes no au-
thority for the Legislature materially to in
terfere with the feature Of time in
contract when that feature was
inserted by express agreement among
the parties to this contract itself
And il, as it has been argued, the Conven-
ton, when it adopted this prohibitory
clause in this Constitution, had in its con-
temptation this equitable principle, and
acted in subordination to or in recognition
OF this principle, it Is equally fair 70 pre-
sumo that the Convention had in view the
notifications of that principle, and among
them the right Of the parties to make time
an essential feature In the contract. And
if this be 50, the logical influence is than,
in adopting this clause in the Constitution,
the Convention intended TO prohibit tho
Legislature Us much from interfering with
the feature of time when made part Of the
contract by agreement OF parties - to
prohibit it from interfering with any other
feature in the contract.
But it seems to me that the Convention,
when it inserted this prohibitory clause In
the Constitution, did not have these legal
and equitable principles in their immedi-
ate contemplation. Looking to the legisla.
tion Of that day, We find that these were
in existence stay laws, tender laws, laws
authorizing the issue Of paper money, and
others interfering with the relation OF
debtor and creditors, which were grieyous
and oppressive to the people. The Con-
yention did not attempt to prohibit the
4 II. q, -