time the indebtedness is incurred must be substantially preserved to the creditor.

Rees vs. Watertown, 19 Wall. 107.

It is true that the obligation of a contract and the remedy to enforce it are distinct things, and whatever belongs to the remedy may be altered according to the will of the state as to both past, present and future contracts; always provided, however, that the alteration does not impair the obligation.

U. S. vs. Conway, 25 Fed. Cases, 598.
Bronson vs. Kinzie, 1 How. 311.

It is not my purpose, and I would not assume to undertake now to distinguish the dividing line between those laws on the one hand affecting the remedy for the enforcement of past contracts, which impair the contract, and those laws on the other hand affecting the remedy which do not impair the contract; but I take it to be well settled that if the effect of the alteration of the existing law is to impair the obligation of the contract, it is immaterial whether it is done by acting on the remedy or directly on the contract itself,

Barnitz vs. Beverly, supra;

Von Hoffman vs. City of Quincy, supra;
Hawthorne vs. Calef, 2 Wall. 23,

and that there is no substantial difference between a retroactive law declaring a particular contract abrogated and void, and one which takes away all remedy to enforce it, or encumbers the remedy with conditions that render it useless or impractical to pursue it.

Munn vs. Illinois, 94 U. S. 143.

Pumpelly vs. Green Bay Co., 13 Wall. 177.

Butz vs. City of Muscatine, 8 Wall. 583.

Curran vs. State, 15 How. 304.

Green vs. Biddle, 8 Wheaton, 1.

Seibert vs. Lewis, supra.

The rule seems to be that as to modes of proceeding and form to enforce the contract, the state legislature has control, and may enlarge, limit or alter them, provided that it does not thereby deny

a remedy or so embarrass it with conditions or restrictions as seriously to impair the right.

Tennessee vs. Sneed, 96 U. S. 74.

But if a subsequent enactment affects to diminish the duty imposed, or to impair the right conferred, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the constitution.

Mc Cracken vs. Hayward, 2 How. 608.

Taylor vs. Stearns, 18 Grattan (Va.), 288.

The obligation of the contract is impaired in the constitutional sense by any law which prevents its enforcement, or which materially abridges the remedy for enforcing it existing when it was contracted, and does not supply an alternative remedy equally adequate and efficacious.

Mc Gahey vs. Virginia, 135 U. S. 662.

Barnitz vs. Beverly, supra.

Or, stated in other words, while a change of remedy made after the execution of a contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced.

Kring vs. Missouri, 107 U. S. 233.

Or, as it has been otherwise expressed, every state law which weakens the obligation of a contract previously made or renders it less operative, is a violation of the federal constitution.

Lapsley vs. Brashears, 4 Littell (Ky.), 47.

Blair vs. Williams, 4 Id. 35.

Taylor vs. Stearns, 18 Grat. (Va.), 275.

Considering these well established principles, and remembering that any impairment of the obligation of a contract is within the prohibition of the constitution, the degree of the impairment being immaterial (Bank vs. Sharp, 6 How. 301; Walker vs. Whitehead, 16 Wall. 314; Winter vs. Jones, 10 Ga. 190), it seems to me to be clear that the several enactments by our legislature, to which I

have already referred, fall well within the line of unconstitutionality. It may be true that they affect only the remedy, but it is also certain that as to pre-existing mortgage contracts they materially abridge the remedy, render it less efficacious and embarrass it with conditions and restrictions which seriously impair the contract right; that they tend to postpone and retard the enforcement of the contract and weaken and render less operative the obligation of the contract. It is equally certain that they do not supply an alternative remedy equally adequate and efficacious. Every one of these enactments seem to me, in all these respects and for all these reasons, to violate the letter and spirit of the constitutional provision; and if the question were to be determined upon the application of these general principles alone, without the aid of precedent or authority directly in point upon the facts, it could not (I think) be determined otherwise than as I have stated, without disregarding every decided principle or rule before stated. But we are not without precedent bearing directly upon each phase of the legislation.

THE STAY OF EXECUTION FOR ONE YEAR AFTER LEVY.

This, as you know, is part of the act which I have called the "appraisement act." The supreme court of Missouri and the supreme court of Tennessee

Stevens vs. Andrews, 31 Mo. 205;

Townsend vs. Townsend, 1 Peck (Tenn.), 1'(S. C., 14 Am.
Dec. 722),

have decided that the state legislatures may not render the remedies as to antecedent contracts less efficacious or more dilatory than ordained by the law when the antecedent contract was entered into.

The legislature of Missouri at an early day passed an act granting a stay of execution for two and one-half years, unless the plaintiff should endorse upon the execution his consent that property at two-thirds of its value be taken in satisfaction of the execution. This measure was held to impair the obligation of past contracts to that extent, and to be therefore repugnant to the aforesaid provision of the federal constitution.

Bailey vs. Gentry, 1 Mo. 164.

Brown vs. Ward, 1 Mo. 209.

In 1866, the legislature of Texas passed a law providing that on all judgments rendered prior to the first day of January, 1867, the judgment debtor should have a stay of twelve months; if within that period he pay one-fourth of the judgment, then the stay should be extended for another year; if within the second year he pay onethird of the remainder, the stay should continue for another year; and if within the third year he pay one-half the remainder, then he should have another year's stay within which to pay the balance; that on all judgments rendered after January 1, 1867, execution should be stayed for twelve months; if within that period one-third be paid, then execution should be stayed for a further period of one year; and if within that period one-half of the remainder be paid, then execution should be stayed for the third year; that on all judgments theretofore rendered or thereafter to be rendered foreclosing mortgages or liens upon real or personal estate, there should be a stay of proceedings for two years; and if within the two year period two-thirds of the judgment be paid, then there should be another year's stay as to the remainder. The question of the validity of this law came before the supreme court in the case of Jones vs. McMahan, 30 Texas, 719, upon a refusal of the administrative officers to issue process upon a judgment rendered foreclosing a mortgage executed prior to the enactment. The opinion of the supreme court of Texas in this case is interesting, because it reviews the different lines of decisions bearing upon the distinction between the remedy and the contract, but it is the result which is most important. It is there squarely held that the stay provisions of the law seriously impaired the obligation of the contract and therefore contravened the constitution of the United States, as well as that of Texas; that the creditor had the right to have such an execution upon his judgment as was not materially and essentially different from the one provided by law at the time the contract was made. It was argued to the court that the pecuniary situation of the people of the state was such that the enforcement of the law as to past contracts was a real necessity, that the safety of the people demanded it, and that "the safety of the people is the supreme law." With which principle the court entirely concurred, though not in the sense intended, saying that the supreme law is the con

stitution of the United States, and the safety of the people consists in the faithful performance of each of its requirements.

The legislature of Tennessee enacted a law providing that upon any judgment thereafter obtained execution should not issue until two years after rendition, unless the plaintiff would endorse upon the execution his consent that satisfaction be received in notes of the state bank. This provision came before the supreme court of Tennessee in the case of Townsend vs. Townsend, supra (involving a pre-existing contract), and was held to be in conflict with art. I, sec. 10, of the constitution of the United States, the court announcing this principle: "If the law in being at the date of the contract gives immediate execution on rendition of judgment, a subsequent act providing that the execution shall not issue for two years lessens and impairs the contract equally as much in principle as if it suspended execution forever."

The legislature of Kentucky in 1820 passed an act providing in effect that the judgment debtor might, by entering his personal recognizance to pay the debt, have a stay of execution for the period of two years. This provision was held unconstitutional as to past contracts by the supreme court of that state in several well considered cases, asserting the doctrine that a law which stays the levy of an execution for a longer period than allowed under the law in force at the time the contract was entered into is unconstitutional so far as it affects such contract.

Blair vs. Williams, supra.

Lapsley vs. Brashears, supra.
Pool vs. Young, 7 Monroe, 587.

So far

Similar laws have been enacted and similar rulings made thereon in the States of North Carolina, Mississippi and Virginia. as my investigation has extended, there has never been a ruling to the contrary, and the doctrine laid down by the supreme court of the United States in Edwards vs. Kearzey, supra, that any change in the law which postpones the time of payment, impairs the obligation of the contract by making it less valuable to the creditor, and that it is for that reason that stay laws are held void as to preexisting contracts, has been approved by the highest courts of the several states whenever occasion has arisen.