Year: 1867

1865. 1t operates exclusively on past con-
tracts, and not on future ones; nor does IT
apply to all past contracts, but by the Sc
cond section of the act large and important
classes Of past contracts are exempted
from the influence of its operation. And
the statute thus designates, by means OF
its exceptions, the contracts on which it Is
to operate-a course Of legislation en-
phatically condemned by Chief Justice
fancy, in Bronson Us. kinzie, when he
said: of the contracts intended to be
affected by it had been specifically
enumerated in the law, and these condi-
tions applied to them, while other con-
tracts of the same description were to be
enforced in the ordinary course of legal
proceedings, no one would doubt that such
a law would be unconstitutional. Here q
particular class of contracts is loaded and
encumbered with these new conditions ;
and il can make no difference in principle
whether they are described by the names
of the parties, or by the time at which they
were made" If this eminent judge con-
demned in such strong terms o statute
which Disseminated between past and fu-
ture contracts, with how much more force
does his language apply to statute which
not only contains this discrimination, but
superadds a further discrimination be-
tween past contracts themselves.


At the time this contract was made, the
creditor had four distinct remedies known
to the law by which he could have re-
covered his money and enjoyed the use
of it


]. He could have sued at law on the
notes, have recovered judgment, and en-
forced the collection of the money by exc
cution.


2. He could have invoked the aid of q
court of chancery, if the trustee had re-
fused to act, or there were any other legal
impediments in the way; and that court,
taking charge of the case, would have re-
moved the difficulties and have decreed a
sale to be made by one of its own officers
upon such terms as it should prescribe.


3. If the trust deed had failed to pro-
vide the terms and conditions of the sale,
then the trustee could have proceeded
under the 9th section Of chapter LII, Code
Of 1860, page 562.


4. But the deed contained an express
covenant in itself whereby the trustee upon
default was authorized, when requested by
the Cetui que trust, to sell the property at
public auction upon the terms prescribed
in that instrument, having given due notice
of the time and place of sale, and ont OF
the money thus raised pay to the creditor
the amount due on the notes, with interest.
These were the remedies in existence at
the time the contract was entered into.
They differ from each other in form merely,
and were incorporated by law into the
contract, and formed part of 1t at the time
it was made.


1t is manifest that the statute under con-
sideration materially intcrferes, not only
with the remedy expressly agreed on by
the parties to the deed, but with those other
remedies furnished by the law itself, and
engrafted on the contract. II the sale had
been made in either of the last three modes
above mentioned, the property would have
been sold, discharged, and fell of the equity
of redemption in the grantor. But this
statute has prevented n sale in either OF
these modes, and the equity of redemption
in the grantor has been thereby extended
for nearly two years; and as the grantor
had right by the terms Of the contract to
remain in the possession and enjoyment OF
the property until sale was made, ms
estate in the premises has been, by the
postponement caused by this statute, en-
iarged and extended for period of nearly
two years beyond the time stipulated for IN
his own contract; and the right OF the
cetui que trust to enjoy his money arising
from sale of the premises has been post
poned for corresponding period. And
thus, by this interference Of the Legislature,
the rights of the parties under this contract
have been materially changed, and the OBJ
legations of. the contract weakened and
impaired. To be in conflict with the Con-
stitution, it is not necessary that the act OF
the Legislature should import an actual
destruction of the obligation Of the con-
tract; it is sufficient if the act imports an
impairment of the obligation of the con-
tract.


The preamble to the statute indicates,
and the able report of the Committee oil
Courts of Justice referred to by the coun-
sci for the plaintiff as part OF his argu'
ment shows, that the Legislature seek to
deduce their right to pass this statute from
their right to regulate the judicial rene.
dies necessary for the enforcement OF all
contracts. The report says " That for all
purposes of investigation before final Judg-
ment, and to give convenient time to ofh-
GERS to execute judgment, the plalntlli may
be properly delayed, however Just his
claim may really be-" To this argument
| quote the reply made by one of the
learned Judges, who sat in the case of Bra
shear, &C., Us. Williams, 4 Lift, p. %,
VIC
He said "To this it may be replied that
the time given before judgment is for the
purpose of deliberation and preparation
and the time after Judgment for reasona-
BILE allowance to executive officers to per-
form their duties. Long enough for these
purposes is necessary; longer would be an
abuse of power, which might indirectly in.
fringe the Constitution" alt is true ii
would be difficult to decide how many days
given between the emanation and return
of the execution would or would not be an
infraction Of the Constitution; but still
this requisite nicely would not prove tha'
there could not be an infraction in the long
est number of days possible. We do not
doubt the existence of light at MONDAY
or darkness at midnight, and that one is
clearly and palpably distinguishable from
the other but still, when we watch the tran
sitions of the twilight, we are puzzled tc
draw the demarkations between them. II
will be sufficient to determine these per-
picking questions when they occur. Here
they do not present themselves. We have
the deliberate judgment of the Legisla'
ture, unaltered for thirty years, that nc
less than thirty, nor more than ninety days
at the election of the plaintiff, is long
enough for the existence of the execution


Whatever, then, is added by way OF sus'
pending the execution altogether, to the
prejudice of the contract, is clearly proved
h. Iha Ia ~ itself 10 he relief and not remedy