The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-12
The Tirginid Stay Lac
UNCONSTITUTIONAL.
IMPORTANT LEGAL DECISION.
OPINION OF JUDGE MEREDITH.

yuStU. Jay III tHc case oi LAY ioi -. osSa' -,
rrrly:ng the coustitutionality of the stay
4 ,,v, large number of members of the
,,r merchants, and others assembled in the
room Of the Circuit Court to hear it. We
make no apology for publishing this able
,.r.i paper in full. Thousands Of our pco-
,,, are interested in the question, and few
Will fail to read it. The case had been
claboralcly argued by Stegar Sands for
Ta,lly, and by Nance 4 Williams and
John Z. Young for StearnS.
TuIa- r>. StcQrnS and Others:
Thl, case involves the constitutionality
of the act passed by the Legislature on the
ql dav of March, 1866, commonly known
a, the Stay Law" The pleadings and
,rpo'S in the cause exhibit the following
ncl>: 4 deed of trust was executed on
the 10th day of September, 1860, by the
Plaintiff, Taylor, conveying house and lot
IN the city of Richmond 10 secure the pay
ucut TO John NJ. Gregory of ten negotiable
notes, all dated the same day with the
i rd OF trust, for different sums, making
IN the aggregate the sum of Sl3,279.62,
rayahlc al different periods aher date,
ranging from six up TO sixty months, and
which were afterwards, in January, 1862,
sold and assigned by the said Gregory to
,hr defendant, Stearns. Several of these
notes remaining due after the close of the
war, StcarnS, the holder of them, directed
the trustee during the past summer to ad-
vcrtise the property for sale under the
deed, and Taylor obtained frem this court
aa injunction 10 the said sale, asking it
upUu the ground that any sale under the
deed of trust was prohibited, unless with
bis consent, by the provisions Of the act of
hscmbly commonly known as the "Stay
Law" The answer insists that the law in
question is in contraYen, ION Of the Consti-
.#on of this State and of the United
>ta'"S, and a motion has been made by the
defendant, StearnS, to dissolve the injunc-
zion upon this ground: The motion neces-
,a.ly involves the consideration of the con-
S1t4t:Onality Of this act of the Legislature.
By the 10th section, lst article of the
Constitution Of the United States it is de-
cared that "no State shall enter into any
treaty, alliance, or confederation, grant
letters Of marque and rcprisal, coin money,
emit bills OF credit, make anything but
debts. pass any hill of attainder, er post
Glrto law, or law impairing the obligation
uI contracts So in the Constitution Of
the State of Virginia it is declared " The
General Assembly shall not pass any bill
Of artainder; or any er post tdctO law, or
any law impairiug the obligation OF con-
tracts
To enable me to decide the question in
yylycd in this case | shall inquire:
!. What is a contract!
,. What is the "obligation Of a con-
tract
3. What is "impairing" the obligation
oi a contract
4. Has the obligation Of the contract in
controversy in this suit been impaired by
the statute in questions
/. Acontract is the mutual assent of two
oy more persons, competent to contract,
founded on a sufficient and legal motive,
iuiucement, or consideration, TO perform
some legal act, or TO omit to do anything
the performance whereof is not injoined by
Aw.-Chitty, page I. A deed Of trust,
which is the particular form of contract
under consideration in this case, has been
adiudged to be a contract of the most for
u.Il character, and the trustee held to be a
purchaser for valuable consideration
WIckham, &C., Is. Lewis Martin & Co.: 18th
Grattan, page AZ.
II. The meaning of the phrase "obliga-
ton Of a contract" as used in the ConSti-
tuition of the United States has been fire.
quently discussed in the courts and by
Elementary writers. and been clearly de-
fined by them.
The term Obligation" whether we con-
so.t its etymology or its general accepta-
Ton in our language, will be found to
.gujiy ligamcnt or tle-Something which
bind, or obligeS us 10 do or not to do some
act. 1t is derived Immediately from the
Latin substantive ob'igatiO, which is from
the word OJiigGre, to tie, 10 bind, to oblige
and il is in the same sense that the Engllsh
words derived from these are universally
.,rd and received by all who speak or write
uc English language. The obligation OF a
contract. therefore, is and can be nothing
Use but that which obliges person to
Irrfor is contract, or 10 repair the injury
done by =. failure 10 perform 1t.
Pothicr, in Eyans'S ed, part 2, ch. |,
SAYS: \ civil obligation is a legal tie,
cgclhm juriS, which gives the person IN
wnose favor il is contracted right of judi
raily enforcing the performance OF IT."
Aud it is this necessity which constitutes
The character of obligations, vincul,m JetrtS
gtg usceSSitdte ddStriHgimeer."
In McCracken Us. Hayward, How, 600,
Mr.. Justice Baldwin said: "The obligation
%, a contract consists in its binding force
On the party who makes it. This depends
On the laws in existence when it is made.
These are necessarily referred to i'll all con-
tracts, aud forming part of them, as the
measure Of the obligation TO perform them
by ole party, and tue right acquired by the
other"
In Str. .ges Us. Crowningshield, Wheat.
IS1, the court said: !" A contract is an
agreement by which party undertakes to
do or not to do particular thing. The
law binds him to perform his engagement,
aud this is the o5!tgation Of the contract"
In Ogden as. Saunders, IL Wheat, the
language used is: "The obligation OF a
contract, as spoken of in the Constitution,
,s legal not moral obligation. 1t is the
.aw which binds the party TO perform his
Undertaking. The obligation does not ad-
here or subsist in the contract itself pro-
t''o Ugore, but in the law applicable to the
contract and this law is not the universal
"a" Of nations, but it is the law Of the
Statc where the contract is made. Any
law which enlarges, abridges, or in any
manner changes the intention of the par
'.es resulting from the stipulations in the
contract necessarily impairs it."
Mr.. Justice Curtis, in delivering the
Opinion Of the court in Curran Us. the State
o. Arkansas, &C., Is How, 3l9, said "The
'Cilgation Of contract, in the sense in
winch those words are used in the Consti-