Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1867-01-31

"Aieii @ iinitcu poWtl Over the remedy
has been exercised without being cues
toned, and claims that these are analogous
cases with the Stay Law" Here we will
join issue with it. after quoting the para
graph embracing these cases in full:
''Your committee think that neither Of these ex-
treme positions is tenable but that the sound con-
struction lies between them. The first position
VIII De sufficiently disposed Of in dealing with the
second, whica interposes the only ob1tace in our
path. !tWli be at once perceived that this sec
ond position, by Its own terms, has to abandon ey-
efything like literal construction or mere verbal
dissection OF the ianguageofhe pro}ibitorv clause
tor 1t admits that for all the purposes of investiga-
ton before final judgment, and to give convenient
time to officers to execute the Judgment the plain
TIL may be properly DELAYED however lust his claim
may really be. Now this is admission that there
| aye oH)cctS or SUCH paramount propFety and JUS
tee to be aimed at IN dealing with judicial 5efne-
dies, that the right of plaintiff to demand an en-
forcemcnt OF the obligation Of his contract in the
feature OF time. must yield to them when it comes
IN conflict with them. And it narrows the ones
ton down to this hat arc these objects of para
mount propriety and justice, to which the riGht of
the plaintiff must yield when a conflict occurs
are they confined to the narrow limits of tim. to
investigate INTO the merits of the case and 10 exc
cute the Judgment or, there not other legti-
mate Objects Of such paramount justice and pro
piIcty as equally to demand that the plaintiffs
rlght to speedy enforcement Of the obligation OF his
contract should WELD to them 4 concise refer
ence to the principles, both of equity and law in
tofco at the time the Constitution OF the United
States was adopted and now in force will helm to
throw light on this question. Take the case of
vendor and pul chaser, where by the letter OF the
| contract it was to be carried into execution by
certain day, and the vendor not being able to per
feet his title by the day, the purchaser refuses to
comply with his purchase, though the vendor in
! some reasonable time after the day offers him a
perfect title. Courts of equity i'll such cases say
'that time is not Of the essence Of the coniract''
and compel specific performance. So in the CON
verse of the case where the purchaser is not pre-
/ pared with the purchase money at the day but
1 tenders it In reasonable time after though the
vendor is a creditor, and Las been DELAYED in re-
cevng his debt, equity still saws time is not of
| the essence OF the contract" and compes Kim to
| comply with his bargain. Take eases of closer
analogy AT sale Of property under deed Of
trust to secure debt, the property sells FOL clear
ly inadequate price and equity is applied to set a.
side the sale, and decree resale on the ground
/ OF inadeqaacy, and always gives the relief There
the creditor is delayed, and the motive or object
OF the court is to prevent lnerciiess sacrifice Of
the debtors property, the very effect and object OF
every stay law. So, too, where equity is called on
to substitute itself for trustee and to direct sale
for the payment OF the debts, it requires its officer
to report the bidding to the court, and if before
confirmation reasonable advance is offered BY any
one equity holds the new bidder to his bid, but
directs The property to be again put u, at public
sale, to see il some one will not offer still more
This delays the creditor, and frequently greatly
delays him, yet his right to speedy payment is
made to yield, on principle OF natural Justice and
humanity adopted by the courts to the right of the
debtor, to require that his property should be made
to produce as near as practicable its true value
50, too, IN courts OF law tied down by strict tech
nlcalltles, and with less latitude to do justice, yet
it is an established principle, that when it comes to
sale the sheriff, their officer must disregard what
Is termed nominal bid, and return, 'sNo sale for
want Of bidders And this expression, ''no1nin-
al bid, IN practice, is made to exclude all bids
that Go not bear some reasonable proportion to the
true value OF the property There, again the credi
tor is delayed and for the ayowed purpose of
shielding the debtor from suinous and uni Just sac
rlhce OF his property These principles OF judicial
law were In fall force when the Constitution of the
United States was adopted, and must have been
familiar to its ffame's They are still in full force
and no one has ever pretended, will venture to
contend, that the prohibition to impair the 0bliga-
ton OF contract was designed to. and should have
the effect. to blot out this whole branch ofthe law
and strip the courts OF this part Of their then exist
ing jurisdiction It certainly has produced no such
effect Ct what an anomaly it would be to put
such a construction this prohibition as would
leave courts free, by what is merely judicial leei-
station, to impair the obligation OF contracts in this
feature OF time, and yet to deny this power, with
in the same proper limits of principle. the Iegti-
mate possessors OF all egisla tive power the LeuIs-
| latures themselves. our committee think such
a construction entirely untenable, and therefore
unhesitatingly assert the power OF the General AS
sembly to make the right of the creditor to speedy
payment yield as courts have, wthint their prov
/ lnce, been In the habit of making itNcld) to the
right Of the debtor, to ask, on paramount princi-
pies OF prorriety and justice that his property
should be protected from ruinous sacrifices by
forced sales, even at the expense OF the necessary
delay to the creditor and this principle has been
adopted by the Congress of the United States and
| by the State Legislature in the laws relating to
! forthcoming bonds and the stay of execution the
validity OF which is beyond question. I our com
| fl,. r,l-J IL
ture on its true ground, and coniinc it within its
true limits. 1t rests the necessity OF delaying
the creditor, in order to attain the paramount OBJ
ject OF preserving the debtors property from ruin
Gus saci ificG. And this necessity must actually ex-
list, growing out OF the actually existing status Of
the country when the stay law is passed. to Justify
and legaizc the stay law. So the law, in its in
reference with the creditors rights, must be limi-
ted to effect this legitimate object. and interfere
no further than is necessary for the purpose, 9TH
! erWlse 1t becomes an improper law, not justified
! by the emergency, and Of more than doubtful
validity under the Constitution TO be efficient to
shelter our people from the ruin, with which they
are threatened, we should make it sach law
all courts, both State and Federal, would be bound
to respect and enforce
We claim that the analogy between the
cases cited in the foregoing paragraph and
the ''Stay Law is Sc imperfect that no
argument can be adduced thcrefrom. The
Stay Law" and the rules of law and sta
tutes quoted above are antipodes The
former has for its object the Illustration of
contracts, all the same whether Temporal
rily, indefinitely, or absolutel y;-the latter
have for their object the enforcement of
contracts. 1t is the undoubtcd policy of
all laws to compel men to stand up to
what they legally contract to do, and it is
the primary object Of makers to render
these laws as effective as possible. But
there must be due process Of law, and
this process gust be certain Blackstone
defines Law to be ga rule of action" Tn
der the Municipal or Civil Law" there is
certain defined method of arriving at
ones rights. A rae Of action is prescrib-
ed and must be pursued 1t may be alter
ed or amended as circumstances require,
but always with the same object--to COM
mand what is roht and nrohibit what is