Cutts & Johnson v. Hardee

38 Ga. 350

• Court: Supreme Court of Georgia
• Decided: December 15, 1868
• Status: Published

Opinions

Brown, C. J.

The first section of the Act of the Legislature, passed at the session of 1868, entitled, “ An Act for the relief of debtors, and to authorize the adjustment of debts upon principles of eqüity,” is in these words :

“That in all suits' which shall be brought for the recovery of debts, in any of the Courts of this State, or upon contracts for' the payment of money, made prior to -the first day of June, 1865, (except for the sale or hire of slaves,) it shall and may be lawful for the parties, in all such cases, to give in evidence before the jury impanneled to try the same, the consideration of the debt or contract which may be the subject of the suit, the amount and value of the property owned by the debtor at the time the debt was contracted, or the contract entered into, to show upon the faith of what property the credit was given to him, and what tender or tenders of payment he made to the creditor, at any time, and that the non-payment of the debt or debts was owing to the refusal of the creditor to receive the money tendered; or offered to be tendered ; the destruction or loss of the property upon the faith of which the credit was given ; and how and in what manner the property was destroyed or lost, and by whose default; and in all such cases, the juries which try the same, shall have power to reduce the amount of the debt or debts sued for, according to the equities of each case, and render such verdicts as to them shall appear just and equitable.”

The pleas filed in this case were such as were necessary to let in the evidence on the trial, which is authorized by the above section of the Act. Counsel for plaintiff demurred to the pleas, on the ground that the Act was unconstitutional and void. The Court sustained t-he demurrer, and ordered the pleas to be stricken from the record, and that decision is assigned as error.

1. It can not be questioned that the Courts have the power to declare Acts of the Legislature unconstitutional, null and void; and to refuse, on that ground, to enforce them. While this is a necessary power, it is one that should be exercised with great caution. Solemn Acts of the Legislature are always presumed to be constitutional and binding, and should never be set aside by the Courts, except in clear and urgent cases. If the Court entertains doubts, the decision should be in favor of the validity of the Act. 12 Wheat., 270. 16 Ga. R., 102.

2. It is contended that this section of this Act violates that provision of the' Constitution of the United States which denies to any State the power to pass any law impairing the obligation of contracts. But that provision of the Constitution does not prohibit the passage of laws, by the States, acting upon the remedy.

3. The distinction between the obligation of a contract and the remedy for its enforcement, is well established by the authorities; and while the Legislature has no right to impair the obligation of the contract, it has the undoubted right to change, modify, or vary the nature and extent of the remedy, provided a substantive remedy is left to the creditor. 12 Wheat., 285, 349-50; 4 Wheat., 200, 201; 1 Howard’s Reps., 315, 316; Story on the Const., sec. 1385; 3 Peters’ Reps., 280; 5 Pet., 456; 13 Pet., 312; 23 Maine Reps., 318, 322; 18 Maine, 109; 2 Fairf., 284; 6 Pick., 501; 1 Cowen, 501; 2 Ala., Reps., 404; 9 Ala., 713; 1 Texas, 598, 600; 4 Watts & Serg., 220; 5 How. Miss. Reports, 285; 1 Kernan’s Reps., 286; 3 Denio, 274; 4 Gilmer, 221; 1 Morris, 70; 7 Geo. R., 163; 9 Geo. R., 258 ; 12 Geo. R., 437; 13 Geo. R., 306; 16 Geo. R., 151; 28 Geo. R., 345; 37 Geo. R., 440, and numerous other authorities which might be cited sustaining the same doctrine.

So long as the State undertakes to furnish remedies, she may vary or modify them at pleasure, if she does not destroy their substantive character. But it does not necessarily follow that a State is bound to furnish any remedy at all, for the enforcement of contracts. If, in the organization of her government, she should determine to establish the cash system in all trade and commerce, and should deny to her courts jurisdiction over any executory contract for the payment of money, I know of no coercive power under our system of government to compel her to change her system, and establish Courts with jurisdiction over such questions. Nor would the obligation of the contract be impaired by such a refusal on the part of a State to enforce the contract, as the injured party, in case the contract were not declared illegal by the laws of the State where made, would have his right of action wherever he might find the other party of his property, within the jurisdiction of a State whose laws afford remedies for the enforcement of such contracts.

The late Chief Justice Marshall, who was certainly one of the ablest jurists of any age, while he characterizes the conduct of a State, which would refuse to afford remedies to enforce contracts, in very strong terms of reproach, admits the power of the State to withhold all remedy, and denies that there is any coercive power over her, to compel her to enforce the performance of contracts. In Ogden vs. Saunders, 12 Wheat., 350-1-2, he says: “Our country exhibits the extraordinary spectacle of distinct, and, in many respects, independent governments, over the same territory and the same people. The local governments are restrained from impairing the obligation of contracts, but they furnish the remedy to enforce them, and administer that remedy in tribunals constituted by themselves. It has been shown that the obligation is distinct from the remedy, and it would seem to follow, that the law might act on the remedy without acting on the obligation. To afford a remedy is certainly the high duty of those who govern to. those who are governed. A failure in the performance of this duty, subjects the government to the just reproach of the Avorld. But the Oonstition has not undertaken to enforce its performance. That instrument treats the States with the respect which is due to intelligent beings, understanding their duties, and willing to perform them; not as insane beings, who must be compelled to act for self-preservation. Its language, is the language of restraint, not coercion. It prohibits the States from passing any law impairing the obligation of contracts; it does not enjoin them to enforce contracts. Should a State be sufficiently insane to shut up or abolish its Courts, and thereby withhold cell remedy, would this annihilation of remedy annihilate the obligation, also, of contracts? We know it would not. If the debtor should come within the jurisdiction of any Court of another State, the remedy would be immediately applied, and the inherent obligation of the contract enforced. This can not be ascribed to a renewal of the obligation; for passing the line of a State can not re-create an obligation, which was extinguished. It must be the original obligation, derived from the agreement of the parties, and which exists tjnimpaijred, though the remedy -was withdrawn.” “ The Constitution contemplates restraint as to the obligation of contracts, not as to the application of remedy.” So, if a State shall not merely modify or withhold a particular remedy, but shall apply it in such manner as to extinguish the obligation without .performance, it would be an abuse of power which could scarcely be misunderstood, but which would not prove that remedy could not be regulated without regulating obligations.”

“If it leaves the obligation untouched, but withholds the remedy, or affords one which is merely nominal, it is like all other cases of mis-government, and leaves the debtor still liable to his creditor, should he be found, or should his property be found, where the laws afford a remedy.”

These quotations from this great luminary of legal science, who was never accused of too great partiality for the rights of the States, show clearly his opinion, not only that the obligation and the remedy are distinct, but that a State has the power to regulate the remedy at pleasure, and that a denial of all remedy in her Courts does not “ impair ” the obligation of the contract.

I am now discussing the question of the power of the States to vary, modify, change, or withhold remedies; and not the justice or propriety of such action on their part. If the state of things had existed when Chief Justice Marshall delivered the above opinion, which now exists in Georgia; if two-thirds of the whole property of the State, including over $300,000,000 00, of one particular kind of property, had been destroyed by the fortunes of Avar and the action of government, and the State had, in such an emergency, before her people had time to recover from the shock, attempted, by the exercise of all her poAvers, to save something of the wreck, and to relieve them from the payment of debts contracted for property destroyed by the government, which must have been a total loss to the vendor, if he had retained it; or, in case of the destruction of the property on the faith of which debts were contracted, if she had attempted, by the fullest exerercise of her powers, to compel an equitable distribution of the losses among debtors and creditors, the learned Chief Justice might have taken a very different view of the. propriety of her conduct, Avhile acknowledging the amplitude of her power to modify, change, or withhold, remedies.

It is claimed, however, that the Supreme Court of the United States, in the case of McCracken vs. HayAvard, 2 How., 608, has ruled that the law of the State, in existence at the time the contract is made, becomes part of the contract, and that the Legislature has no right to change that law, no matter whether it applies to the validity and construction of the contract or to the remedy, but, that the plaintiff is entitled to his remedy, under the law as it then existed. I am .free to admit that there are expressions in the opinion delivered by Mr. Justice BaldAvin, in that case, which seem to favor that construction. It is worthy of remark, that that ease does not seem to have been very well considered by the Court, as there was no appearance by counsel on either side. A written argument Avas submitted for the plaintiff in error, in Avhose favor the decision was made; but nothing, whatever, was submitted for ^he defendant. Justice Catron observes, “Ihave formed no opinion whether the Statute of Illinois is constitutional or otherwise. The question raised on it, is one of the most delicate and difficult of any ever presented to this Court; and as our decision affects the State Courts throughout, in their practice, I feel unwilling to form or express any opinión on so grave a question, unless it is presented in the most undoubted form, and argued at the bar."

It is further to be observed, that it was not necessary to go to this extent to decide the question made by the record, then before the Court.

The State of Illinois had not denied to hér Courts jurisdiction of the class of cases then before the Court. But, while she undertook to furnish a remedy, she had enacted that property levied on to satisfy executions on debts contracted prior to the first of May, 1841, should be appraised by three house-holders, and have its value endorsed upon the execution, or upon a piece of paper thereunto attached, signed by them; and a sale was forbidden, till two-thirds of the appraised value should be bid for the property. It is very clear that this provision of the statute might defeat all remedy, while the State professed to furnish a remedy, as no sale could ever be made till two-thirds of the value placed upon the property by the appraisers, was bid, no matter how unreasonably, or how much above the true value, the appraisers might price the property. The substantive character of the remedy was destroyed by the statute, which proposed to give a remedy, and the decision of the Court, declaring this statute unconstitutional, was in harmony with the current of authorities on this subject. The constitutionality of this Act was the only question presented for the consideration of the Court. They declared it unconstitutional, and, to that extent, the-decision is authority. But all that is said about the law of the remedy, entering into the contract, and forming part of it, is obiter. And with the most profound respect for that high tribunal, and for the opinions of the able Judges who then sat on the bench, I will add, it is against the current of authority, and in conflict with the opinions of many of the ablest Judges, including Chief Justice Marshall, who have adorned the position held by Mr. Justice Baldwin and his associates.

In commenting on the decision in this case, in 1 Kernan’s Reps., 386, Judge Denio, of New York, says: “ In the able and discriminating opinion of Chief Justice Taney, in the fir§t case, (Bronson vs. Kenzie,) the right to make such changes (in the remedy) is distinctly asserted; and, if the opinion in McCracken vs. Hayward held the contrary, it was unnecessary to go to that length, and the doctrine would be hostile to the principle of several prior cases, and an unwarrantable restriction upon the powers of the State governments.”

The objection to the constitutionality of the Illinois Act rested upon the ground that the property might never bring two-thirds of the appraised value. This view is sustained by the decision in the ease, The United States vs. Conway, Hemp., 313, in which it was ruled that a law which protects the debtor’s property from sale on execution for one year, if two-thirds of the appraised value shall not be offered, does not impair the obligation of the contract.

The case of Van Hoffman vs. The City of Quincy, 4 Wallace, 535, when carefully examined, is found to contain no authority for the position I am controverting.

At the time the bonds in question were issued by the city, there were statutes of the State of Illinois authorizing the city to issue them, and authorizing and requiring the corporation to levy, from time to time, sufficient tax to pay the coupons and bonds as they become due. The Act of 1863 attempted to repeal the Acts authorizing and requiring the collection of sufficient tax to meet the payments as required by the terms of the contract. And the sole question presented for the consideration of the Supreme Court of the United States was, whether the Legislature of Illinois had power to repeal the statutes providing for taxation to pay the bonds, till they were satisfied ? The Supreme Court held, that the issuing of the bonds under the statutes was a contract, and that an Act of the Legislature repealing these statutes, before the bonds were paid, impaired the obligation.

It will be observed, in this case, that the statutes themselves formed part of the contract, as it was under their express authority that the city issued the bonds, and their repeal amounted to a repudiation of the bonds. Well might the learned Judge who delivered the opinion say, that the laws which subsisted at the time and place of making the contract, and where it was to be performed, entered into and formed part of it. As applicable to the case before the Court, no one can question the correctness of this position.

The very illustrations given by the learned Judge show that he does not intend to lay clown the broad proposition contended for, in this Court, that the law of the remedy existing at the time enters into the contract, and becomes part of it. Mr. Justice Swayne says: “Illustrations of the proposition are found in the obligation of the debtor to pay interest after the maturity of the debt, when the contract is silent; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice.” These illustrations show what is meant by the general language used, and are not inconsistent with the position that the Legislature may pass laws acting upon the remedy, while it may not impair the obligation of the contract.

Indeed, the learned Judge distinctly admits this power in the Legislature. He says: “ This has reference to legislation which affects the contract directly, and not indirectly, or only by consequence.” Again he says: “ They (the Státes) may also exempt from sale, under execution, the necessary implements of agriculture, the tools of a mechanic, and articles of household furniture. It is said, regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised by every sovereignty according to its own views of policy and humanity. It is competent for the States to change the'form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. Uo attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.”

Again, he adds : “ If these doctrines were res integres, the consistency and soundness of the reasoning which maintains a distinction between the contract and-the remedy, or, to speak more accurately, between the remedy and the other parts of the contract, might, perhaps, well be doubted. But they rest in this Court, upon a foundation of authority too firm to be shaken; and they are supported by such an array of judicial names that, it is hard for the mind not to feel constrained to believe they are correct.”

Here, then, the difference between obligation and remedy, or between contract and remedy, is admitted in the fullest sense, as firmly established in the Supreme Court of the United States, too firmly established to be shaken ; and the right of a State to change the form of the remedy, and otherwise to modify it, is distinctly conceded in the very case relied on in this Court, by those who deny this power in the Legislature, and contend that the law of the remedy in existence at the time the contract was made, enters into, and becomes part of it. The Supreme Court does not hesitate to admit that there is no definitely fixed line between alterations of a remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights; and that every case must be determined “ upon its own circumstances.” The admission, by that high tribunal, of the right of the Legislature to alter or modify the law of remedy at all, is a conclusive admission that the law of remedy in existence at the time, is no part of the contract, and does not enter into it. If it did, the least change or modification of the law of the remedy, would, to that extent, impair the obligation of the contract.

But will this doctrine, that the law of the remedy as it exists at the time the contract is made, enters into and becomes part of it, which the plaintiff is entitled to have administered in enforcing the performance of the contract, bear the test of critical examination ? Can it be sustained upon principle or authority ? I think not. When an attempt is.made to reduce if to practice, its advocates, appalled by the mischief that would result from its enforcement, are driven to engraft upon it, so many exceptions, resting upon principles so absolutely in conflict with the principles upon which the rule is claimed to rest, that its force is destroyed, and the unsoundness of the position is demonstrated.

Take the case of the statute of limitations of a State, which bars an action on a promissory note after six years, and tell me, if the rule under consideration be a sound one, how it is that the Legislature may shorten the period to four-years, or extend it to eight years, and éompel parties to contracts then in existence, to conform to it as changed ? If the law of the remedy, as it exists when the contract is made, enters into, and becomes part of it, the payee of the note stipulates that he shall be allowed six years after the note is doe to bring his suit, and the maker agrees to it, and no change of the law, reducing it to four years, can bind the payee or holder of the note. On the other hand, if the rule be a sound one, the maker of the note stipulates when he makes the contract, that the holder shall be barred if he does not sue in six years, and any law of the State, extending the period to eight years, impairs the obligation of the contract, and is null and void. I need not cite authorities to prove that the Legislature, in the case supposed, has the power to limit the period to four years, or extend it to eight. It is universally admitted, in all the Courts. And why ? Because, say the Courts, the statute of limitations acts upon the remedy; and the Legislature has the undoubted right to vary, alter, or modify the remedy at pleasure. How can this universally acknowledged rule of decision be sustained, if the law of the remedy, as it exists at the time the contract is made, enters into, and becomes part of it f

I will cite a single case, decided by the Supreme Court of the United States, The Bank of Alabama vs. Dalton, 9 Howard, 522, to show the extent to which this doctrine has been carried. The State of Mississippi passed a statute of limitations, in 1844, which barred all suits on judgments recovered within that State, after a lapse of seven years; and all suits on judgments thereafter rendered out of the State after six years, and all suits upon judgments obtained out of the State before the passage of the Act, within two years after the passage of the Act. Judgment was obtained by the plaintiff against the defendant, in Alabama, on the 7th of February, 1843. The defendant, afterwards, removed to Mississippi, where he arrived on the 10th day' of November, 1846, more than two years after the date of the limitation Act above mentioned. Suit was commenced-against him, on the judgment in the United States District Court, for the Northern District of Mississippi, on the day he arrived within that State.

The defendant pleaded the statute of limitations of Mississippi as his defence, to-wit: that the suit was not commenced within two years from the date of said Act. It was admitted that this was the first day he had been in Mississippi, or could' have been sued there. The Supreme Court of the United -States were unanimously of the opinion, and so ruled, that the statute of limitations of Mississippi governed the case; that it acted only upon the remedy, and violated.no provision of the Constitution. The Court says : “ In administering justice to enforce contracts and judgments, the States of this Union act independently of each other; and their Courts are governed by the laws and municipal regulations of the States where the remedy is sought, unless they are controlled by the Constitution of the United States, and the laws enacted under it. This the Court held was not so in this case. Here the plaintiff had lost his remedy, in Alabama, by the removal of the defendant from that State; and though he sued the first day the defendant resided in Mississippi, it was held that the laws of that State, which denied him any remedy, were not in violation of the Constitution. In other words, the Supreme Court of the United States has, in effect, held that the State might destroy the remedy within her jurisdiction, upon a judgment from another State, by statute of limitations, without impairing the obligation of the contract.

Again, the law of the State, at the time the contract is made, authorizes imprisonment for debt. The debtor makes the contract with full knowledge that it is the right of the creditor, under the law governing the remedy then in existence, to arrest and imprison him in case of non-performance, till the debt is paid. The creditor knows this to be the law of the remedy, and contracts with reference to it. Indeed,, he may rest on this as his only reliable and effective remedy. He may know the character of the debtor, that he is wanting in principle, and that all his property is in money, bonds, or other ohoses in action, which cannot be reached by the levying officer. But he knows it is his right, under the remedial laws of the State, to arrest him on a oa. sa., and imprison him till he delivers up his hidden treasure, which is ample for the satisfaction of the debt. Relying on this remedy he gives credit, which he would not give if the remedy by imprisonment did not exist. Now, if the rule under consideration be correct, he contracts for the right to resort to this means, and use this remedy to collect his debt. He gives the credit upon this faith, and upon this alone. A change of the law which abolishes imprisonment for debt, and takes away this remedy, destroys the very remedy upon the faith of which the credit was given; it takes away all effective remedy, and renders the loss of the debt absolutely certain, which, without the change, he would have had no difficulty in collecting, .the payment of which the debtor would not have attempted to evade, but for the change in the law of the remedy.

And, in this connection, let it be borne in mind that the English law as it existed, and was adopted in this country, gave this remedy; and we may reasonably conclude that the framers of the Constitution, who were familiar with the rule, and who were daily in the habit of seeing it carried out in practice, had as much reference to this as to any other remedy when they adopted the clause of the Constitution prohibiting the States from passing laws impairing the obligation of contracts. Then, upon what reason can it be insisted that they intended to permit the States to alter, vary, or abolish this remedy, and to deny them the right to change or vary other remedies of much less value to the creditor ?

If the Legislature can exempt the body entirely from seizure for the non-payment of a debt then in existence, why can it not exempt a horse, a cow, a tract of land, or any other piece of property? Can a solid legal reason be given to sustain the one, that will not apply with equal force to the other? If one impairs the obligation of the contract, the other does; both do, or neither does. If the Legislature may exempt the body, and leave the property subject, why may it not reverse the rule, and exempt the property and leave the body subject? Whatever may be said about the humanity of the age allowing the one and revolting at the other, the legal reason is the same in both cases, and the power of the State over the remedy is the same. I have seen no successful attempt by the advocates of the rule I am now combating to draw a solid distinction between the two cases, supported by logical or legal reasons. I expect to see none, for the simple reason that the legal distinction does not exist.

But what say the Courts on this question ? The decisions are as unanimous as they are on the question of the statute of limitations. They hold that the law authorizing imprisonment for debt, is a law pertaining to the remedy, and that it is within the legitimate power of the State legislatures, to change this law of the remedy as to pre-existing, as well as to subsequent contracts, without impairing this, obligation.

The case of Mason vs. Haile, decided by the Supreme Court of the United States, reported in 12 Wheat., 370, is a strong one. In that case Haile was in prison, having the benefit of prison bounds, under a final process against the body, and was discharged by a resolution of the Legislature of Rhode Island, without the payment of the debt; and the Supreme Court held, that this resolution did not impair the obligation of the contract. The Court says: “This is a measure which must be regulated by the view’s of policy and expediency entertained by the State legislatures. Such laws act mainly upon the remedy, and that in part only. They do not take away the entire remedy, but only so far as imprisonment forms a part of sueh remedy.”

Mr. Justice Story, in his commentaries on the Constitution, section 1381, says: “Rights may indeed exist, without any present, adequate, correspondent remedies, between private persons. Thus, a State may refuse to allow imprisonment for debt, and the debtor may have no property. But still the right of the creditor remains, and he may enforce it against the future property of' the debtor.” Again, in section 1385, he says: “ And a State Legislature may discharge a party from imprisonment upon a judgment in a civil case of contract, without infringing the Constitution, for this is but a modification of the remedy, and does not impair the obligation of the contract.”

The same' doctrine is held in the case of Sturges vs. Crowninshield, 4 Wheat., 200, where Chief Justice Marshall says: “ The distinction between the obligation of a contract, and flie remedy given by the Legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” In that case, the insolvent law of New York, which discharged the defendant from imprisonment without the payment of the debt, was sustained by the Court.

Another illustration of the unsoundness of the position, that the remedial laws of the State, in existence at the time the contract is made, enter into or become part of it, and in support of the position that the laws governing, the remedy may be changed or modified by the Legislature, without impairing the obligation of the contract, is found in the decisions of the Supreme Courts of the several States, sustaining the constitutionality of the stay-laws, forbidding the execution of process for the enforcement of contracts then in existence, for such periods, in the future, as the statutes of their respective States had prescribed.

It is worthy of remark that the more recent decisions of the courts of the Northern States, so far as they have come under my observation, sustain laws of this character, while the courts of several of the Southern States, where the condition of the country made the stay much more necessary to the welfare of the people than in the Northern States, where the losses by the war were less ruinous, have set aside stay-laws as unconstitutional. In Pennsylvania, the doctrine is well settled, that the Legislature may pass a stay-law, prohibiting the sale of property, or staying process for the enforcement of contracts in existence, for a definite and reasonable time; and it has been ruled, that a stay of three years is not an unreasonable period. This has been the rule of decisions in that great State for a quarter of a century past.

In Chadwick vs. Moone, 8 Watts & Sergt., 49, it was held, that local statutes which suspend, for a reasonable time, execution of a judgment on a previous contract, are not prohibited by the Constitution of the United States, and that the statute passed by the Legislature of that State in 1842, suspending, for a year, a sale under execution for less than two-thirds of the appraised value, is not unconstitutional. That able jurist, Chief Justice Gibson, delivering the opinion of the Court, said: “ This case differs from the Illinois statute held by the Supreme Court of the United States to be unconstitutional, in 2 How., 608, in this cardinal feature, that its prohibition of execution was perpetual, while the duration of the stay, in Pennsylvania, was limited. In other words, the one might entirely destroy the remedy, while the other, as in the case at bar, only postponed the period of its performance.”

The same doctrine has been affirmed in Brietenback vs. Bush, 8 Wright’s Reps., 313; Cox vs. Martin, Ibid, 322; Drexel et al. vs. Miller, 13 Wright, 246; and Clark vs. Martin, 13 Wright, 299. The statute under which these decisions were made authorized' a stay which might last for three years.

In Baumback vs. Bade, 9 Wisconsin Reps., 559, the Supreme Court of that State fully sustains the constitutionality of a stay-law. The same doctrine is ably sustained by the Supreme Court of Iowa, in McCormick vs. Busch, see Law Reg. for December, 1863. In this case the learned Chief Justice, delivering the opinion, says: “We have found no case which holds that laws, giving the right to a stay of execution upon certain terms, would be invalid, as applied to prior contracts, unless it be certain cases in Kentucky, which seem to be based upon certain peculiar provisions in the statute.”

I may remark, that the late rulings of the Courts of some of the Southern States had not then been made. These Southern decisions have not generally been unanimous, and with all due deference to the opinion of the majority of the Court, I must say, that the dissenting opinions have been sustained by the weight of authority and the better reason. See the able dissenting opinions of Judge Walker, of this State, Judge Aldrich, of South Carolina, and others.

But aside from the numerous' decisions on this subject, and the contradictory positions which the advocates of the doctrine that the remedial laws of the State, in existence at the time, enter into, and become part of, the contract, are driven to assume, the doctrine has no foundation in principle, and rests upon no sufficient reason.

There have been various definitions of the obligation of a contract. Mr. Justice Baldwin, in the. case of McCracken vs. Hayward, says: “ the obligation of a contract consists in its binding force on the party who makes it.” Mr. Justice Trimble, in Ogden vs. Sanders, says : “The obligation of the contract consists in the power and efficacy of the law, which applies to and enforces performance of the contract, or the payment of an equivalent for non-performance.” Mr. Webster, in the argument of the same case, defines it to be “ the duty of performing a legal agreement.” Whatever may be the correct definition, (and upon this point scarcely any two'Judges agree,) the position that the remedial laws of the State, in existence at the time, form part of it, is untenable.

The remedial laws of almost every State fix a time within which, debts may be collected by suit in the Courts. If these laws enter into the contract, its obligation is impaired by any change made in the law of the remedy. A enters into a contract with B, by which he binds himself to pay him one thousand dollars by the first day of January next.

The presumption of law is, that A will keep his promise, and if he does so, the remedial laws of the State have no connection whatever with the contract. But suppose the contract is broken by non-performance, the obligation still exists, and A is still under “the duty of performing his legal agreement,” and B is entitled to his remedy to enforce performance. But what remedy ? The particular one afforded by the law of the State at the time the contract was made, or the one afforded to suitors at the time the aid of the courts is sought? Unquestionably the latter. If the former were his right, he would be entitled to it, no matter where the action might be brought. If the contract were made in New York, and the suit was brought in Georgia, the plaintiff would, if that be the rule, be entitled to have the remedial laws of New York, which were in existence at the time the contract was made, enforced in the Courts of Georgia, which is contrary to the practice and decisions of all the Courts.

Or, suppose the suit is brought in the Courts of Georgia upon a contract made in Georgia five years since. Then, the law allowed the parties a trial, first by a petit jury, and either party dissatified was entitled to an appeal to a special jury, on payment of cost and giving security, as a matter of right, entered within four days from the adjournment of the Court. The new Constitution abolishes the appeal, and allows but one jury trial, but gives the Courts the power to grant new trials in proper eases. Are parties to contracts made prior to the new Constitution entitled to an appeal to a special jury in a suit brought since the change was made?

Again, the change made by the new Constitution greatly accelerates the collection of debts in this State. Under the old law, the defendant might file his pleas (generally not under oath) at the first term, and the case stood for trial by a jury at the second term. But at that time, either party had the right to a continuance of the case upon a proper showing. After each party had a continuance, the case must be tried by the petit jury, and either party dissatisfied might enter an appeal to a special jury. The case then stood for. trial again at the next term. But each party was entitled to two continuances on the appeal, on proper showing, as matter of right, and to as many more for providential cause as the Court should think the principles of justice required. This might amount to a delay of several years before final judgment.

The new Constitution provides that the Court shall render judgment without the verdict of a jury, in all civil cases founded on contract when an issuable defence is not filed on oath. This not only cuts off the appeal from the petit to the special jury, with all its delay, but it abolishes jury trial, in all civil cases founded on contract unless the defendant files an issuable plea under oath. This change greatly abridges the right of defence allowed to a debtor by the old law, and accelerates the collection. But I apprehend it does not impair the obligation of contracts made prior to the adoption of the new Constitution. And yet, there is no escape from such a conclusion, if the law of the remedy in existence at the time the contract is made, enters into, and becomes part of it; and, in that case, any debtor would have a right to claim that his cause be tried under the old Constitution and laws, which are no longer in existence. This would be contrary to the practice of the Courts, and the almost unbroken current of decisions.

After a contract has been broken by the failure of the debtor to pay at the time agreed upon, the Constitution fixes no other time when payment shall be made, or when it may be coerced by law, but it leaves the creditor to collect when he can, under the remedial laws of the forum where he sues; which are no part of the contract, and are the subject of change by the Legislature, in accordance with its views of public policy. Take the case of a contract made by a citizen of Georgia with a citizen of New York, for an amount over $500 00. The New York creditor may sue in either the Courts of this State, or of the United States. In the one ■ Court, prior to the adoption of our new Constitution, he could, in no case, get judgment before the second term. In the other Court, if no issuable plea was filed, he could get judgment at the first term. Here are two laws, each affording a remedy in the same State, for the collection of the same debt. How, if the law of the place in existence at the time the contract was made, enters into, and becomes a part af it, which of the two laws governing the' remedy, is part of the contract in such a case ? It cannot be both. The truth is, it is neither. But each government has the right to fix the times within which it will allow collections to be made in its own Courts, in accordance with its own views of sound policy or humanity, and to vary, alter, or modify them at pleasure.

Again, suppose the late Convention had made provision in the Constitution of Georgia, that the Superior Courts should sit but once a year, instead of once in six months, as heretofore, and that no sheriff should be ruled for money, except in term-time. This would have stopped the collection of judgments then in existence, for six months longer than the time allowed by law when they were rendered; and would have delayed the rendition of judgment, in case of contracts then in existence, for six months. But would this have impaired the obligation of the contract ? or could creditors have compelled the Courts to sit every six months, in cases of contracts made prior to the change? Unquestionably not. Why not?. For the simple reason that the law of the remedy then in existence, is no part of the contract, and the creditor has no right to claim that it be enforced according to that law.

Under our old Constitution the Supreme Court was obliged to deliver its decisions in every case that came before it, at the first term, except for providential cause, and the creditor, if the judgment were in his favor, had the right to the benefit of the decision at the first term. The new Constitution authorizes the Court, in its discretion, to withhold its decision till the second term. This may delay the creditor six months in making collection, but it will not probably be contended that the Supreme Court violates the obligation of contracts made prior to the new Constitution, by holding up its decision till the second term.

I might multiply illustrations and authorities to prove that' the law of the remedy, in existence at the time, is no part of the contract, but I deem it unnecessary. Those already produced are, to my mind, sufficient to show that the dieta of Mr. Justice Baldwin, in the case referred to, are not law, and are irreconcilable with the current of the decisions of the Supreme Court of the United States, and of the State Courts, and in conflict with the opinions of the ablest jurists this country has produced.

4. Whether the evidence which' is allowed to go to the jury, under this statute, is such as the Courts may consider relevant and proper, is not the question. It is not the province of the Courts to prescribe the rules of evidence by which they will be governed in the investigation of causes. That power belongs to the legislative department of the Government. The Legislature may establish new rules of evidence in derogation of the common law, but the judicial power is limited to the rule laid down. Smith vs. The United States, 5 Pet. 292. 35 Ga. R., 26.

5. It is no good objection to the constitutionality of this Act, that it authorizes the jury to adjust the equities betwee'n the parties, and to reduce the amount of the debt or debts sued for, according to the equities of each case. This is done every day in our Courts, in cases where the defendant sets up a partial failure of consideration, fraud, mistake, and the like. Indeed, it is One of the objects of trial by jury to hear all the facts pertinent to the issue, and find, not according to the face of each written contract, but to see that the real equities between the parties are adjusted, and justice done according to those equities. And if, by reason of the rigid rules of the common law, this cannot be done, the Court of Chancery is ever ready to aid the Courts of law in the accomplishment of this great aim of all enlightened jurisprudence. The new Constitution gives the General Assembly power to merge the common law and equity jurisdiction of the Courts, with a view to the just arrangement and settlement of all the equities between the parties in the forum where the litigation may be commenced. And the Legislature is not confined in its enactments to the old law of remedies, as it existed in any particular country or age. The science of jurisprudence, as well as all others, is progressive, and the rules governing the Courts in the administration of the law of rights and remedies, are varied and changed, as the civilization and enlightenment of the ago, and the changing necessities of society may require. This is illustrated by the endless variety of rules and forms in the different States of the Union, all acting under the same Constitution of the United States, which, it is claimed, this change violates. The rules of evidence by which the Courts and juries are governed, in deciding upon the equities between the parties litigant, are ever changing in each of this large family of States. Probably no two are alike. The Constitution of the United States does not require that they shall be. In some of the States the parties in interest are excluded from giving evidence. In others, Georgia among the number, no one is incompetent as a witness in a civil case, on account of his interest, except in certain cases mentioned in the statute. The change was made in this' State within the last few years. It was as much at variance with the old rules of evidence known to the Courts and the profession as is the Act now-under consideration. But the Courts have upheld it, and the Supreme Court of the United States,-in-case-of-a sister State, has h'eld-that- this State law, making this radical change in the rules of evidence, binds the Courts of the United States sitting as such States as have made the change. 1 Bl., 427; Ibid, 431. And just here, let me inquire how this decision can be sustained, if the remedial laws of the State, which necessarily include the law of evidence, enter into and become part of the contract, and can not be changed without impairing its obligation ?

But I do not consider this an open question in this Court, since the numerous decisions made by it sustaining the Ordinance of the Convention of 1865, by which it is ordained: That all contraes made between the 1st of June, 1861, and the 1st of June, 1865, whether expressed in writing or implied, or existing in parol, and not yet executed, shall receive an equitable construction, and either party, in any suit for the enforcement of any such contract may, upon the trial, give in evidence the consideration and the value thereof at any time, and the intention of the parties as to the particular currency in which payment was to be made, and the value of such currency at any time, and the verdict and judgment rendered shall be on principles of equity.

I am aware that those who attempt to draw a distinction in principle between that ordinance and this statute, allege that it was passed to adjust the equities and do justice between parties to contracts made during the war, most of which were made with reference to Confederate treasury notes, and were intended to be paid in that currency; and further, that the true object of that ordinance vas only to permit an inquiry in Court as to the meaning of the word “ dollar” when used in such contracts. But an examination of the language of the ordinance at once shows that it has no such limited import. It is not confined to contracts made with reference to Confederate treasury notes, or intended to be paid in such notes. It expressly embraces all contracts made within the period mentioned,'and lets in the evidence, on the trial, of each and every one of them, no matter what may have been the intention of the parties, the currency in view, or the consideration; audit authorizes the jury to adjust the equities between the parties, and in so doing, if the proper adjustment requires it, to reduce the amount of the debt sued for.

The pretext that the only intention of the ordinance, was to permit evidence as to the meaning of the word dollar, when used in any contract, made during the period covered by it, is equally unfounded. The ordinance' authorized either party to give in evidence the consideration and the value thereof at any time. Suppose the consideration of the note in suit, dated in 1861, to be a tract of land. What does the value of the land in 1865 or 1869, have to do with the meaning of the parties, at the time they made the contract, as to the sense in which they used the word dollar ? What inference can be drawn' by the jury on the trial, to aid them in the inquiry as to the sense in which the parties used the word “ dollar” in 1861, by proof of the value of a tract of land, at the time of the trial in 1869, when the land may have increased or decreased ten fold in value ? What more relevancy does such evidence have to the issue, than the evidence authorized by the statute now under consideration ?

Again, the ordinance authorizes the parties to give in evidence the particular currency in which payment was to be made; and the value of such currency at any time. Suppose the contract was made on the 1st day of July, 1861, when the currency was worth ninety cents on the dollar, in gold. And suppose the note was made in reference to Confederate treasury notes, and was due 1st January, 1862, in that currency, which, at the date when due, was worth, in gold, eighty cents on the dollar. Row, I ask, how evidence, as to the value of Confederate treasury notes on the first day of May, 1865, when $1,200 00 of those notes were worth- but $1 00 in • gold, tends to illustrate the issue, as to the sense in which the parties used the word dollar? It cannot be denied that the evidence, in the case supposed, would be admissible, under the rulings of this Court, which have repeatedly sustained the constitutionality of the ordinance. But it would be admissible, not so much to show the sense in which the parties used the word “ dollar,” as to place all the facts and circumstances connected with the whole transaction before the jury, to enable them to “ adjust the equities between the parties.”

In Hudspeth vs. Johnson, 34 Ga. R., 405, that great and good man, Chief Justice Lumpkin, says: “Ve know full well, that the letter of that ordinance only applies to eon-tracts, made between June, 1861, and June, 1865, but we doubt not it will receive, as it ought to do, a much broader signification.”

In McLaughlin & Co. vs. O’Dowd, 34 Ga. R., 485, the same learned Judge says : “ The jury had the right, not only to reduce the respective demands of the parties to a specie basis, but also to go into an examination of the consideration for which the note was given, how much ought to be deducted from the amount of said note, by the unsoundness of the tobacco for which the note was given, what is the usage of trade in the community where the parties resided, as it respects settlements between merchants, etc., these, and all other matters which affected the equity of the parties, the jury had a right to inquire into, and to find their verdict accordingly.”

He then refers to th estatute in Crawford and Marbury’s Digest, passed at the close of the Continental war, by which all contracts were required to be reduced to the specie basis, and settled accordingly; and adds : “ I will not undertake to say that this legislation was not just at the time; but that it would be a proper standard now, it'requires no degree of experience in business to satisfy any one to the contrary. Our Convention has acted more wisely under the’circumstances, past and present, by which they were surrounded.

"Walker, Judge, says, in Cothran et al. vs. Scanlan, 34 Ga. R., 557: “ I am inclined to think that specie value of currency payable, is not the sole criterion prescribed by the ordinance of the Convention. The language -would seem to allow and require a much wider scope for investigation.”

In the case of Slaughter et al. vs. Culpepper et al., 35 Ga. R., 27, Judge Harris delivering the opinion of the Court, holds the ordinance constitutional. He says: “I cannot think this clause-of the ordinance obnoxious to the objection. It does no more, really, than change a rule regu•lating the admission of testimony in courts of law; it removes the obstacles created by technical rules, to a full inquiry into, and investigation of, executory contracts, made within the periods of time mentioned. It is apprehended, that to have done this, was within the competency of the legislative power at any time. Who is prepared to deny that the Legislature may not, at its discretion, alter and amend old rules of evidence and establish new ? Who, that it may not obliterate all distinctions which now characterize modes of procedure in courts of law and courts of equity and command, if they so enact, that the broad and liberal principles upon which justice is administered on the equity side of the Superior Courts, shall apply to and control the verdicts of juries on its law side?”

The validity of the ordinance was again sustained in Evans vs. Walker, 35 Ga. R., 118. After laying down the rule that the Judge who tries each case should give the whole ordinance in charge to the jury, Chief Justice Lump-kin says: “We certainly think that the Convention intended to give to the jury more than the ordinary discretion delegated to jurors; which should be respected by the Courts, unless flagrantly abused to the manifest wrong and injury of the parties.”

This Court again affirmed the constitutionality of the ordinance in Taylor vs. Flint, 35 Ga. R., 124, and sustained and executed it in the following cases: Elder vs. Ogletree, 36 Ga. R., 64; Cherry vs. Walker, 36 Ga. R., 327; Oliver et al. vs. Coleman et al., 36 Ga. R., 553.

In this case, Judge Warner laid down the rule that the Court should allow the juries a liberal discretion under the ordinance.

Mo one can draw a solid distinction in principle between the Ordinance of 1865 and the Statute of 1868. If one is constitutional the other is also. Both change the old rule of evidence, and let in evidence heretofore considered by the Courts irrelevant and improper. The object is the same in both cases, to reduce the debt “sued for,” in accordance with the real equities existing between the parties, and not to allow a recovery according to the face of the contract, unless the equities of the case justify it. And I apprehend neither of the four learned Judges above named, in sustaining the constitutionality of the ordinance, felt for a moment that he was “ embalming himself in his own infamy upon the records of this Court as a debauched judicial officer.”

I am aware that an attempt was made in this Court, at the hearing, to draw a distinction, growing out of the power given by the statute to the jury, to reduce the debt. But a moment’s examination will show that none in fact exists. The statute enacts that “in all such cases, the juries which try the same, shall have power to reduce the amount of the debt or debts sued for, according to the equities of each case, and render such verdicts as to them shall appear just and equitable.”

Now, what is the meaning of this? That the jury shall hear all the evidence necessary to place them in possession of all the facts and circumstances connected with the contracts, and the relations and condition of the parties, and shall find their verdict according to the real equities existing between them; or, in other words, after examining the whole case, in the light of all the surrounding circumstances, they are to render such verdict as to them shall seem just and equitable, subject, as in all other cases, to the revision and control of the Court, if it should think proper to set it aside and grant a new trial, because the verdict is unjust or inequitable. This is the full measure of the power and discretion given to the jury by the statute. And this is what the juries have long had the power to do, under such rules of evidence as existed at the time, and have done, in a thousand cases where the defence of fraud, accident, mistake, undue influence, duress, total or partial failure of consideration, have been set up. In all such cases they find such verdict, under the evidence submitted to them, as seems to them just and equitable. The oath administered to every special jury in Georgia, from 1799 to 1863, required this. They were sworn well and truly to try each cause submitted to them, and a true verdict give, (not according to the rules of law in force when the contract was made, but,) “ according to equity and the oyinion you entertain of the evidence produced to you, to the best of your skill and knowledge, without favor or affection to either party.” Marbury and Crawford’s Digest, 307. Cobb’s New Digest, 551. And this is just what the Ordinance of 1865 authorizes and requires, no more, no less. After prescribing the rules of evidence to govern in case of contracts made between June, 1861, and June, 1865, the ordinance declares that the verdict and judgment rendered shall be on principles of equity. And the caption, or title, declares it to be an ordinance “to authorize the courts of this State to adjust the equities between parties to contracts made, but not executed.” What does this mean? Simply that the jury, after hearing all the evidence authorized by the ordinance, shall adjust the equities between the parties. In other words, they shall find “such verdict as to them shall,appear just and equitable.” And this rule applies with equal force to all verdicts, whether rendered under the ordinance or under this statute.

I need only add, in considering this branch of the case, that no honest man has any good reason to complain, when the verdict rendered in his case gives him all, to which in justice, equity and good conscience he is entitled.

6. Rut if the jury should seize upon the discretion.given by the statute, as a pretext for the exercise of an unjust and arbitrary caprice, and should fail to administer substantial justice, and to dispense that equity between the parties which grows out of all the facts and surrounding circumstances of each case, it will be the duty of the Courts to exercise their undoubted power, and set aside such unjust verdicts, whether rendered in favor of plaintiffs or defendants.

7. In this case no complaint can be made at the finding of the jury, as there was no verdict. The defendants filed pleas which were intended to lay the foundation for the introduction of the evidence authorized by the statute, and the Court sustained plaintiff’s demurrer to the pleas, and ordered them stricken from the record. A majority of this Court are of opinion that this ruling of the Court below was erroneous. We are unable to see how the obligation of the contract was in any degree impaired by the filing of these pleas.

8. When a statute authorizes certain facts to be given in evidence to the jury, which, under the old law, were excluded, and the defendant so shapes his pleas as to lay the proper foundation for the introduction of the evidence authorized by the statute, such pleas are not bad on demurrer, because not authorized by the old rules of pleading. If a statute gives a new defence, or authorizes the introduction of evidence not previously admissible, the defendant may so shape, his pleas as to avail himself of the benefits of the new law, and the old rules of pleading must yield to the statute.

Without making any pharisaical pretensions to greater purity than others possess, the majority of the Court, conscious of the rectitude of their own motives, feel it due to themselves, in closing this opinion, to remark, that they will not descend from their proper position on the bench, to engage in controversy with the dissenting 'Judge; nor- will they inquire into the incentives which have prompted the unjust and insidious assault made upon them. Extraordinary and unprecedented as the attack has been, the proprieties of the occasion, and the dignity of the Court, alike forbid a reply.

After a careful examination of the authorities, we are satisfied that the judgment of the Court below is erroneous, and ought to be reversed. And it is so-ordered.

McCay, J., concurring, announced his views by the head notes, which appear under his name, but he wrote no opinion in the cause.