Year: 1863




it occurs in an act supplementary to the pena
laws Of the Commonwealth and does not men.
tion the mihtary service, either in the State OF
of the United States, yet it is universally under
stood, and no doubt correctly understood, to be
stay law of all legal process against soldiers
mustered into the service of the Government.
And it is stay for term-the term for which
be shall be engaged. The act of Congress Of
22d July, 1861, under which the first half mil
lion Of volunteers were mustered into the ser
vice of the United States, fixed the term at not
more than three years nor less than six months,
and the affidavit which was filed on behalf Of
the defendant says that he had been mustered
in for three years or during the war. This is
the same phrase that was used in the 10th sec
tion Of our Assembly of 18th May, 1861, in
reference to the Reserve Volunteer Corps, and
means three years or less, or not exceeding three
years The terms of engagement, therefore,
during which the above section meant that the
defendant should not be subject to civil process
was three years from the date of his muster, if
the war should last SO loag, and if it should not,
then until it should end. Thirty days were to
be added after his discharge, which would make





thirty days The reference to the duration of
the war is a restriction of the term, not an ex-
tension of it beyond three years and thirty days
The duration of the war was, at the maximum
period of the stay-three years and thirty days
from the date of the muster--is susceptible of
ascertainment with absolute certainty Il was
suggested that the volunteer might re-enlist at
the expiration of his term, and because this was
possible that the term of his engagement was
necessarily uncertain. The answer is that the
statute gives but one stay, which is to be COM
puted from the time of the original muster, and
a re-enlistment would not renew the stay. The
statute refers itself for the time of engagement
to the laws that were then in force fixing the Pc
riod of enlistment, and, therefore, we construe
it according to the tenor of those laws


''Such being the significance and effect of the
section, was the Legislature authorized to en-
act it?


MfsrhsaHa Ms haHaf nfRPa fRPadgk faibfRahoa to existing and
prior contracts and we have followed the dis
tinction which prevails in the Supreme Court
of the United States, between the obligation of
the contract and the remedies furnished by law
for enforcing the obligation. We understand
the rule to be that whilst the Legislature may
not impair the obligation they may modify the
remedy. But it sometimes happens the parties
contract concerning the remedy--that they stip-
ulate in the body of the contract that in case
of failure of payment bya certain day there
shall be no stay of execution, or that the mort
gagee may enter and sell the mortgaeed estate
or, that all exemption rights shall be waived.
In such cases the rule is, that the remedy be-
comes part of the obligation of the contract, and
any subsequent statute which affects the reme-
dy impairs the obligation, and is unconstitution-
al. Brown v. Kenzie, l Howard, 1922 and
Billmyer v. Evans, Wr 327, are illustrations
of this rule. The time and manner in which
stay laws shall operate, are properly Legislative
questions, and will generally depend, said Judge
Baldwin, in Jackson v. Lamphire, Sd Peters
X D. 200, on the sound discretion of the Legis-
lature according to the nature of the titles,
the situation of the country, and the emergency
which leads to the enactment. Cases may oc-
cur where the provisions of a law may be SO
unreasonable as to amount to denial OF the
right and call for the interposition of the court
In Brown, Raiguel & Co. v. Gorgas, 5 Wr AL,
we had an instance of an unreasonable stay law
unreasonable because of the indefiniteness of
the possible stay, and of the subversion of the
authority of the Courts over judgments upon
their records. From the ruling in that case
and the authorities cited, it may be inferred that,
in respect 10 contracts which do not treat Of
remedies, we hold any law to be constitutional
which gives stay for time that is definite
and not unreasonable, but unconstitutional if
the stay be for an indefinite time, or for time
that is unreasonable, though definite.


"We have seen that the stay given by the
act of 1861 was not indefinite as to its maxim
um duration, but was for a period certain and
nre6xed. Was that
period reasonable! The stay is a long one, it
must be confessed--longer than is usual-longer
than justified, except by most peculiar and press
ing circumstances. There is great force in<he
reasons which the learned Judge below urged
against it. The enforced delay of civil right,
the deterioration of the morigaged estate, and
the consequent pecuniary loss are entitled to
great consideration in judging of the reasonable
ness of the law. Everybody feels that stay
of remedies on a mortgage for fifty years, for
instance, would be a wanton sacrifice OF the
constitutional rights of the citizen. What bet
ter is stay for less time if it be long enou gf
to work essential depreciation of the security?


"Yet it is impossible to separate this question
of reasonabeness from the actual circumstances
in which the country found itself at the date OF
the law. Eleven States had seeded or revoltee
from the Federal Union, and had set up an IN
dependent Government within the jurisdiction
of the Constitution Of Che United States, ant
armed possession had been taken of forts, arse
nails custom houses, navy yards, and othe
property of the United States within the boan
daries of the revolted States. In the judgmcn
of the President and Congress, who were tn
duly constituted authorities, the occasion re
ouired an immense increase of the army an'
navy, and the active employment OF both Q
these strong arms to subdue the rebellion an'
restore the Union. Accordingly Congress au
thorizcd the President TO accept volunteers, am
Z S.a.o, c,~ thar militia He die