At that time the holder of the law of the state, to foreclose

in 1838 upon lands in Illinois. mortgage was entitled, by the the same immediately upon a breach of the condition, and to procure the land to be sold absolutely as soon as could be done according to the practice of the courts. In 1841 the legislature of Illinois passed a statute providing that in sales under a decree of mortgage-foreclosure, the debtor should have a right to redeem the land within one year after the sale, by paying the purchase-money and ten per centum interest. Another statute was also passed, providing that there should be no sale of lands upon execution, or upon mortgage-foreclosure, unless such lands should first be appraised, and should be sold for at least two thirds of their appraised value. The action was brought subsequently to these statutes, and the debtor claimed that the decree should be made in accordance with this new legislation; that the sale should be subject to his right of redemption, and should not be made for a less sum than two thirds of the appraised value. The creditor claimed that the sale should be absolute and for what the land would bring. The court pronounced the statute void so far as it applied to this mortgage, and ordered an absolute decree of sale. In pronouncing the judgment of the court, Chief Justice Taney used the language quoted in § 615.

§ 622. In McCracken v. Hayward, the effect of the same statute upon execution sales was examined; and it was declared void so far as it applied to a judgment recovered upon a contract existing at the time of its enactment. In addition to the passage from the opinion of Baldwin, J., quoted in § 616, the following conclusions are instructive: "The obligation of the contract between the parties in this case was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its

1 2 How. 608.

stipulations in the very words of the law relating to judgments and executions. Any subsequent law which denies, obstructs, or impairs this right, by superadding a condition that there shall be no sale for any sum less than the value of the property levied upon, to be ascertained by appraisement, or any other mode of valuation than a public sale, affects the obligation of the contract, for it can be enforced only by a sale of the defendant's property, and the prevention of such sale is the denial of a right. The same power in a state legislature may be carried to any extent if it exists at all; it may prohibit a sale for less than the whole of the appraised value, or for three fourths, or nine tenths, as well as for two thirds; for if the power can be exercised to any extent, its exercise must be a matter of uncontrollable discretion in passing laws relating to the remedy which are regardless of the effect on the rights of the plaintiff."

The same doctrine was afterwards applied to similar statutes of other states in Grantly's Lessee v. Ewing,1 and Howard v. Bugbee. The state courts have, in a few instances, adopted these conclusions of the national judiciary, although they may not have accepted, in its full scope and effect, the reasoning upon which the conclusions are founded.3

§ 623. Many state courts, however, have disregarded the rules established by the supreme constitutional tribunal; they have attempted to evade the decisions by refined and technical distinctions, utterly ignoring the salutary principle upon which the decisions proceeded; or they have entirely repudiated this principle, and asserted a complete control in the state legislatures over the whole subject of remedies. Thus, in Chadwick v. Moore, the Supreme Court of Pennsylvania upheld a statute which enacted that when lands are taken on execution they shall be appraised, and if they do not bring two thirds of the appraised value, further proceedings shall be stayed for one 13 How. 707.

2 24 Ibid. 461.

Bunn v. Gorgas, 5 Wright, 441; Billmyer v. Evans, 4 Wright, 524; Cargill v. Power, 1 Manning, 369; Scobey v Gibson, 17 Ind. 572. 88 W. & S. 49.

33

year. Chief Justice Gibson attempted to distinguish the case from that of McCracken v. Hayward, by asserting that in the latter, the statute of Illinois was declared void because it created an indefinite stay of execution, which might be perpetual. This assertion was en arely gratuitous, not warranted by any thing in the reasoning or the conclusions of the court. Besides, the Supreme Court of the United States had, in Bronson v. Kinzie, condemned with equal emphasis a law of Illinois which gave a mortgagor a year within which to redeem his land, and thus postponed the absolute title of the purchaser for a definite period. It is not the uncertainty of the time during which a creditor's remedial rights are postponed, which impairs the obligation of his contract, but the fact that they are arbitrarily postponed at all. If the creditor may be debarred from pursuing his remedy for a year after the breach of his contract, because the length of the stay is fixed and certain, then another year might as well and as legally be added to the time of original performance, for both of these modifications would produce the same final result.

§ 624. In 1861 the legislature of Pennsylvania passed a statute staying all civil process against persons in the military service of the state or of the United States, for the term of such service, and for thirty days thereafter. An act of Congress had fixed the term of service at three years. In Breitenbach v: Bush,1 the Supreme Court held this stay law valid, because the period of time during which the stay was to last was definite, and the court considered it reasonable. In McCormick v. Rusch,2 the Supreme Court of Iowa decided a similar statute of that state to be constitutional. In this latter case, Wright, J., entered into a very elaborate discussion of the whole question; denied that the remedy forms any part of the obligation; and insisted that states have complete con trol over the subject-matter. In the course of his opinion the learned judge asserts that the whole subject would have been left free from doubt and difficulty, if the attempt had not been made to include the remedy within the obligation. This is certainly true. But the subject would have been still simpler, 1 8 Wright, 313. 2 15 Iowa, 127.

still more free from difficulty, if the Constitution had not attempted to protect the obligation at all, but had left the contracting parties at the mercy of the states. Having placed a restriction upon the power of the states, the Constitution must be fairly construed; its intent must be observed; indirect violations of its inhibitions are as unlawful as those which are direct.

I need hardly say that however patriotic and laudable may have been the design of these statutes, they were plain infractions of the constitutional provision. Forbidding a suit to be brought for three years, or to be prosecuted for three years, is the same in substance as forbidding a judgment to be executed for three years; and both affect the obligation as directly and as injuriously as adding three years to the agreed time of original performance would do. Whatever aid of this kind is given to the soldier should be given by Congress; and I have no doubt that Congress has full power to promote enlistments by offering such an advantage to the volunteer.

§ 624 a. In the late case of Edwards v. Kearzey, 96 U. S. 601 (1877),1 Mr. Justice Swayne, speaking on this subject, thus declared his views on the validity of stay laws: "It is," said he, "the established law of North Carolina that stay laws are void because they are in conflict with the national Constitution. Jacobs v. Smallwood, 63 N. C. 112; Jones v. Crittenden, 1 Law Repos. (N. C.) 385; Barnes v. Barnes et al. 8 Jones (N. C.) L. 366. This ruling is clearly correct. Such laws change a term of the contract by postponing the time of payment. This impairs its obligation by making it less valuable to the creditor. But it does this solely by operating on the remedy. The contract is not otherwise touched by the offending law. Let us suppose a case. party recovers two judgments, one against A., the other against B., each for the sum of $1,500, upon a promissory note. Each debtor has property worth the amount of the judgment, and no more. The legislature thereafter passes a law declaring that all past and future judgments shall be collected in four equal annual instalments.' At the same

1 ED.

A

time another law is passed which exempts from execution the debtor's property to the amount of $1,500. The court holds the former law void and the latter valid. Is not such a result a legal solecism? Can the two judgments be reconciled? One law postpones the remedy, the other destroys it; except in the contingency that the debtor shall acquire more property, a thing that may not occur, and that cannot occur if he die before the acquisition is made. Both laws involve the same principle and rest on the same basis. They must stand or fall together. The concession that the former is invalid cuts away the foundation from under the latter. If a state may stay the remedy for one fixed period, however short, it may for another, however long. And if it may exempt property to the amount here in question, it may do so to any amount. This, as regards the mode of impairment we are considering, would annul the inhibition of the Constitution, and set at naught the salutary restriction it was intended to impose."

§ 625. (5.) Exemptions from Execution. Judgments which direct the payment of a certain sum of money can only be enforced in a compulsory manner by seizing and selling property of the judgment debtor. To what extent this property shall be liable to seizure is a matter of policy for each state to determine. It is plain, that if the laws of a state should relieve all of the debtor's property from this liability, the legal obligation of every contract would be gone; none but a moral obligation would be left. Exemp tion laws are those which relieve all or some portion of the debtor's property from liability to seizure and sale upon execution. So far as they apply to future contracts, they only involve a question of policy; so far as they apply to existing contracts, they involve the further question of power. To illustrate: At the time a contract is entered into, all the debtor's property is liable to seizure and sale on execution, except certain enumerated articles of clothing, of household furniture, and of food. Subsequently to the execution of this agreement, but before it has been completely enforced, the state legislature enacts a general statute by which other