§ 617. (1.) Deprivation of Remedies. If the law of a state should assume to deprive the injured party of all remedial right upon an existing contract, the legislative act would plainly impair the obligation of such contract. This doctrine is fully established. The cases cited in the foot-note will show how it has been recognized by state courts. But if in addition to the ordinary remedial right by action for a specific performance, or for the recovery of pecuniary damages, the common law or statute had given a special, cumulative, and perhaps more summary right of redress, the state courts have held that the destruction of this special right does not impair the obligation of the contracts to which it was appropriate, if the general right by action be left in full force. As an application of this principle, it has been held that a law abolishing distress for rent, and made applicable to existing leases, is valid. I think it is by no means clear that these decisions do not trench upon the rule established by the Supreme Court of the United States. We will now pass to those classes of statutes which

2

1 In Railroad Co. v. Tennessee, 106 U. S. 337, the facts were that by the earlier law of Tennessee the state could be sued, but no power was given the courts to enforce their judgments. Afterwards the law which authorized suit was repealed and there was then no law authorizing suit against the state. The later statute, withdrawing the consent to be sued, was declared valid. "The remedy, which is protected by the contract clause of the Constitution, is something more than the privilege of having a claim adjudicated. Mere judicial inquiry into the rights of parties is not enough. There must be the power to enforce the results of such an inquiry before there can be said to be a remedy which the Constitution deems part of a contract. Inquiry is one thing; remedy another. Adjudication is of no value as a remedy unless enforcement follows. It is of no practical importance that a right has been established if the right is no more available afterwards than before. The Constitution preserves only such remedies as are required to enforce a contract." ED.

2 Call v. Hagger, 8 Mass. 423, 429; Mundy v. Monroe, 1 Manning, 68; Kennebec Purchase v. Laboree, 2 Greenl. 275, 293; Society for the Propagation of the Gospel v. Wheeler, 2 Gallis. 105, 141, per Story, J. 8 Stocking v. Hunt, 3 Denio, 274; Wood v. Child, 20 Ill. 209; Evans v. Montgomery, W. & S. 218.

4 Van Rensselaer v. Snyder, 3 Kernan, 299; Conkey v. Hart, 4 Kernan, 22.

purport not to destroy, but simply to modify, an existing remedial right.

§ 618. (2.) Statutes of Limitation. - A statute of limitation, shortening the time within which actions may be brought, and made applicable to existing contracts, may fall within the prohibition of the Constitution, or may be entirely unobjectionable. If its effect be to prevent an action, where the right of action exists, it would not only impair but absolutely destroy the obligation, and would be void. But if it left a reasonable time within which the injured party might bring his action, although that time might be shorter than had before existed, the remedial right would be perfect, the obligation would be unimpaired. Statutes of limitation are measures of public policy; and if the person clothed with a remedial right be left free to pursue it immediately after its inception, he is not damnified and cannot complain, if he be required to pursue it with diligence. Thus, the ordinary period within which actions may be brought upon simple contracts is six years; a state might reduce this period to three years; this legislative act would be void as to all existing contracts where the right of action had accrued more than three years, and less than six years before, for in such cases no action could thereafter be brought, and the remedial right would be gone; but the new law would be valid as to all existing contracts where the right of action had not yet accrued, or where it had accrued a year or two years before, for even in the latter cases there would be ample opportunity left within which to enforce the remedial right. These doctrines have been acknowledged by the national and state judiciary, and form part of the settled "onstitutional law of the land. A few state courts, however,

1 Mitchell v. Clark, 110 U. S. 633; Koshkonong ». Burton, 94 U. S. 668; Terry v. Anderson, 95 U. S. 628 ; Sohn v. Waterson, 17 Wall. 596; Call v. Hagger, 8 Mass. 423, 429; Kennebec Purchase v. Laboree, 2 Greenl. 275, 293; S. P. G. v. Wheeler, 2 Gallis. 105, 141, per Story, J.; Sturges v. Crowningshield, 4 Wheat. 122, 207, per Marshall, C. J.; Bank of Alabama v. Dalton, 9 How. 522; McElmoyne v. Cohen, 13 Pet. 312. This principle was applied in a recent case, by analogy, to this peculiar state of facts. In Louisiana the property of the tutor is tacitly mortgaged in favor of the minor from the day of his appointment as tutor, as

have shown a disposition to give a greater force and efficacy to statutes of limitation.1

§ 619. (3.) Imprisonment for Debt. - Upon the same principle, a statute abolishing imprisonment for debt might be made applicable to existing contracts, and would not impair their obligation. Arrest and imprisonment of the debtor, like a preliminary attachment of his goods, is clearly a part of the mere procedure; it does not enter into our notion of the essential remedial right; it does not perform the stipulations of a contract, or pay pecuniary damages for their non-performance. The assent to this particular rule seems to have been universal.2

§ 619 a. Rights of Set-off. Rights of set-off, when no rights of third parties interfere, are wholly subject to legissecurity for his administration, and for the responsibility which results from it. Civil Code of La. art. 354. The Constitution of Louisiana, subsequently adopted, namely, in 1868, declared that "no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this state shall cease to have effect against third persons after the 1st of January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges." The legislature of Louisiana in March, 1869, enacted the necessary legislation to carry this provision into effect; and it was held that these provisions of the Constitution and of the statute requiring owners of tacit mortgages to record them for the protection of innocent persons dealing with the tutor, and giving ample time and opportunity to do what was required, and what was eminently just to everybody, did not impair the obligation of contracts; these provisions being in the nature of statutes of limitation. Vance v. Vance, 108 U. S. 514. On the same principle, it was subsequently held that "a provision in an act for the reorganization of an embarrassed corporation, which provides that all holders of its mortgage bonds who do not, within a given time named in the act, expressly dissent from the plan of reorganization, shall be deemed to have assented to it, and which provides for reasonable notice to all bondholders, does not impair the obligation of a contract, and is valid." Gilfillan v. Union Canal Company of Pennsylvania, 109 U. S. 401. ED. 1 Beal v. Nason, 2 Shep. 344; Kingley v. Cousins, 47 Me. 91.

2 Penniman's case, 103 U. S. 714; Oriental Bank v. Freeze, 6 Shep. 109; Mason v. Haile, 12 Wheat. 370; Beers v. Haughton, 9 Pet. 329, 359; Bronson v. Newberry, 2 Dougl. 38; Donnelly v. Corbett, 3 Seld. 500; Fisher v. Lacky, 6 Blackf. 373.

lative control. A statute passed after a bank has obtained a judgment, which authorizes the defendant to set off against the circulating notes of the bank which he procured after the judgment, is, as between him and the bank, valid, and does not impair the obligation of the contract sued on, or of the judgment.1

§ 620. (4.) Stay and Appraisement Laws. - The common form of stay laws is that in which an execution or other process is forbidden to be issued for some definite period of time after the recovery of a judgment. Statutes, however, which prohibit the injured party from commencing, or from prosecuting an action for a certain definite period of time after the breach of a contract, are identical in principle with stay laws, and constitute a particular class thereof. Appraisement laws are those which require the property of a judgment debtor seized on execution to be appraised, and forbid, its official sale for a price less than some determinate portion of the appraised value. As these two classes of statutes are generally found existing in connection, forming parts of the same system of state policy, they may properly be considered together. They are the most common methods by which state legislatures have assumed to interfere with the remedial rights growing out of contracts. There has been much dispute in respect to their validity. State courts have generally sustained them. I do not hesitate to say, however, that so far as they are made applicable to existing contracts, and abridge the remedial rights. of the creditor, they impair the obligation, and are void. This proposition is true upon principle, and is supported by that judicial authority which is binding in matters of constitutional

construction.

§ 621. The Supreme Court of the United States has had occasion to pass upon the validity of several state laws of this description, and has uniformly pronounced them void so far as they attempted to affect existing contracts. In Bronson v. Kinzie, an action was brought to foreclose a mortgage given

1 Blount . Windley, 95 U. S. 173. And see Amy r. Shelby County, 111 U. S. 388. ED.

2 1 How. 311.

in 1838 upon lands in Illinois. At that time the holder of the mortgage was entitled, by the law of the state, to foreclose 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.